The Supreme Court's wild day.
Plus, a question about disinformation on social media.
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Today’s read: 11 minutes
A breakdown of yesterday’s Supreme Court ruling, some good coronavirus news and a question about consuming reliable information on social media.
Photo: Matt Popovich / Flickr
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Reader feedback.
Remember: You can reach me anytime by simply replying to the newsletter. I love mixing it up with readers and will typically share feedback when I think a good point is raised about my coverage or the feedback is representative of other things I’m hearing from readers.
Garret from Raleigh, North Carolina, wrote in yesterday to push back on sharing Glenn Greenwald’s comments as being representative of “the left’s” take on COVID-19 and protesting. Garret said my coverage didn’t “take into account the fact that everyone was flying blind in Feb/March, while getting horror-story accounts of how easily the virus was being transmitted, versus how the medical community has come to understand the virus in the 2-3 months since.” He said it also “fails to paint a fair picture of the risk associated with unmasked indoor contact versus with (predominantly) masked contact outdoors.”
I got this feedback from a few other people as well. I did allude to this contrast by noting that “Protesting outside with masks on may be safer than dining at a crowded restaurant, but the idea that thousands of people spending hours shoulder-to-shoulder is not high-risk seems hard to believe.”
It is true, though, that our understanding of the risks associated with COVID-19 have changed since March, when many on the left were criticizing anti-lockdown protesters. Whether that evolution excuses some people’s insistence that mass protesting is safe now is something I think is debatable, but I appreciate this feedback.
What D.C. is talking about.
The Supreme Court’s big day. Yesterday, the court handed down a series of important decisions, most notably the ruling on Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, religion, national origin and sex.” By a 6-3 majority, the court ruled that even if Congress did not intend to protect gay or transgender employees when they passed the law, “sex” encompasses gender and sexual identity. Neil Gorsuch, a Trump appointee who was one of the court’s most conservative judges, wrote the opinion for the majority.
Gorsuch said the reason for his ruling was actually based in “textualism,” a school of conservative legal thought that has become the bedrock of how the right views issues of the constitution. Instead of trying to draw meaning from a law, textualism seeks to interpret it by the letter. In that way, Gorsuch reasoned it was “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“Consider, for example, an employer with two employees, both of whom are attracted to men,” he wrote. “The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
The Supreme Court also refused to hear eight separate cases related to the “qualified immunity,” the legal doctrine that requires officer to violate a clearly established law in order to be charged with violating someone’s rights. It also refused to hear a case on the legality of sanctuary cities brought forward by the Trump administration. And, finally, it turned down several cases that gun rights groups said were denying them Second Amendment rights.
What the left is saying.
Was it worth it? Since Donald Trump has taken office, many Republicans have justified their support for him by noting the conservative shift in the courts, including two Supreme Court justices. Now, in a single spate of cases, the court has unexpectedly ruled in favor of the LGBT litigants and refused to hear cases on sanctuary cities and alleged violations of Second Amendment rights.
The right should be happy, Matt Ford argued, as Gorsuch’s decision was a classic case of conservative textualism. Many of them “have long criticized rulings by liberal justices and judges for allegedly reflecting their own policy preferences instead of the law or the Constitution.” But Gorsuch’s refusal to play along could “upend the conservative legal project.”
“All of the moral and ethical compromises that came with supporting Trump, they [conservatives] concluded, could be justified by his role in shifting the federal courts further to the right than any of his predecessors had done,” Matt Ford wrote in The New Republic. “But his [Gorsuch’s] role in Monday’s ruling underscores the real problem with Faustian bargains like the one it struck to reshape the federal judiciary: The devil often fulfills them in unexpected ways, and he doesn’t accept refunds or returns.”
Others focused on the historic beauty of this moment. Joshua Matz and Robbie Kaplan wrote in The Washington Post that, throughout the case, Gorsuch appropriately gendered the plaintiff Aimee Stephens, who was a transgender woman (Stephens died in May before this ruling came down).
“This may seem like a simple gesture. Yet it stands as a towering rebuke of judges who have recently issued decisions that cruelly misgender transgender plaintiffs,” they wrote. “Monday’s victory is not just a triumph of textualism; it is a triumph of love and dignity.”
What the right is saying.
It sets a dangerous precedent. The right isn’t arguing against this bill because they hate gay and trans people or want them to live without proper rights — but because they feel the ruling amounts to “legislating” and not what the court is meant to do: adjudicate. It amounts to a redefining and reclassification of the meaning of “sex.”
The Wall Street Journal editorial board pointed to the fact that Gorsuch, in his majority opinion, cited a Title VII ruling that protected a woman who was not hired because she was a mother.
“But motherhood is inextricably linked to biological sex. Gender and sexual orientation are not,” the board said. “‘The good textualist is not a literalist,’ Justice Scalia once wrote… The majority here isn’t merely applying an overly broad or vague law, which Justice Gorsuch has criticized the Court for doing in other cases. The Court is redefining the original meaning of ‘sex’ in the law.”
Quin Hillyer wrote that saying sexual orientation is the same thing as sex is “as nonsensical as saying that a square and a rectangle are the same thing for painting purposes because both have four sides.” Laws should be interpreted according to the generally understood meaning at the time they were written, Hillyer said, otherwise the meaning of laws “might change willy-nilly.” Justice Alito laid out how this ruling could now lead to interpretations that don’t just allow but mandate unisex locker rooms or the participation of men in women’s sports leagues.
“The last reason… why religious conservatives should grit their teeth and vote for Trump anyway has now been blasted to smithereens by this decision written by a Trump justice,” Rod Dreher wrote in the American Conservative. “And not just a Trump justice, but the paradigmatic Trump justice, the man whose place on the Supreme Court was meant to justify religious conservatives turning a blind eye to Trump’s many other failures.”
My take.
To be frank, the conservative argument against the ruling of the court is very sound to me. Which, I suppose, explains why this case made it all the way to the Supreme Court. When the Civil Rights Act was written, gay people were thought to be “mentally ill” (according to the American Psychiatric Association) and trans people were barely recognized. The idea that Congress meant to include both gay and trans people — in 1964 — under protections for discrimination against “sex” does not pass a basic sniff test.
And, while homophobia or transphobia might be in play for certain people, I do not think most of the conservatives worried about this ruling are worried because they hate LGBT people. They’re worried because there truly is a fascinating, profound legal implication from this. The court took a piece of legislation written nearly 60 years ago, interpreted it using a core principle of conservative legal thought, and came out with a ruling that runs afoul of today’s social and religious conservatism.
So, how do I feel? I must be honest: I’m thrilled. First, because I have many friends who are LGBTQ, and because I think it’s about damn time their country recognized them as being equal — and protected them under the same law that protects me, as a Jew, or anyone else based on their race, religion or sex. My friends should not be legally allowed to be fired because they’re gay or trans in the United States of America. I wish Congress had done it by amending the Civil Rights Act, but I’ll take this too.
Second, because it’s clear to me what the intention of the Civil Rights Act was: to protect people from being discriminated against based on something as innate as who they are attracted to. While this ruling might set up some slippery legal interpretations for the future, it’s also obvious that the Civil Rights Act was written to protect people from workplace discrimination. I have a hard time believing the authors of that bill would not be interested in giving those same protections to the LGBTQ community today.
Gorsuch’s logic was also fascinating to read and is why these rulings are so interesting to me. Consider it: he’s not actually arguing that “sex” was meant to encompass sexual orientation or gender identity. He’s instead arguing that if a man and a woman both like a man, and the man is fired for this but the woman isn’t, then the man has been discriminated against based on his sex. And he’s right! It’s such a simple but profound way to interpret equality under American law.
Finally, I’ll just say I was disheartened to see the court refuse to take up any of the qualified immunity cases. As I wrote in a previous Tangle on police reform, the doctrine means if a police officer violates your rights, you need to identify a previous ruling by a court against a law enforcement official on exactly the same conduct under the same circumstances, otherwise, the official is immune. This has, in one example, let off an officer who shot a 10-year-old while trying to shoot a non-threatening family dog — because there was no previous case with those circumstances.
Restricting qualified immunity is the single most important thing we can do to bring accountability to policing, in my opinion, and it’s one of the very few reforms that is widely supported by liberals, conservatives and libertarians alike. If the court won’t take it up, Congress should.
P.S.
I’m not sure where these two points should be included, but they should be. First, the historical context of “sex” in the Civil Rights Act is a bit of incredible poetic justice. The bill, as you might know, was actually designed in 1964 primarily to prohibit employer discrimination based on race. But Representative Howard Smith, a segregationist from Virginia, wanted to stop it. So he amended the bill to include “sex” thinking that it would be a bridge too far — and the bill would never pass if it restricted workplace discrimination against women. Whoops!
Second, I think it’s worth including part of Justice Brett Kavanaugh’s dissenting opinion here. Kavanaugh sided with the minority, ultimately ruling that Title VII did not intend and should not protect gay and trans people, but wrote this in his dissenting closing remarks: “It is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
Finally, I want to acknowledge Donald Zarda and Aimee Stephens, two of the plaintiffs in the cases the court ruled on yesterday. Zarda died in a skydiving accident and Stephens died last month of a kidney issue. Neither lived to see their country recognize them as equal, so it seems worth acknowledging their role in this long and tenuous legal battle.
Quick hits.
President Trump says he will unveil an executive order on police reform at 12pm EST today. The executive order will provide federal funding incentives for increased use of force training and strengthen a national database on police misconduct. Activists immediately criticized the move, saying more funding for police is the opposite of the kinds of reform they’re asking for — instead, many have called for defunding police and directing their funding to social programs.
A member of an armed militia who opened fire on protesters in New Mexico has been arrested. The shooting happened as protesters tore down a statue of Spanish conquistador Juan de Oñate, who massacred indigenous people. The gunshots left one man in critical but stable condition and set off fiery criticism about the unchecked presence of armed militias during protests.
The Supreme Court’s ruling on LGBT rights yesterday could sideline the Trump administration’s effort to roll back Obama-era protections for trans people. Late last week, the Trump administration announced an end to rules banning health care providers from denying care to trans patients. Yesterday’s Supreme Court ruling won’t have an immediate impact, but some think it will reverse the Trump administration’s effort.
North Korea blew up a liaison office on the border with South Korea yesterday, a major escalation that raises tension with South Korea. Some experts fear North Korea is ramping up provocative moves after not getting what it wanted through nuclear negotiations with the United States in order to pressure the U.S. into certain concessions.
At least four members of Congress reaped the benefits from the small business loan program they created, and nobody knows how many more did as well, Politico reports. A bipartisan group of lawmakers conceded close ties to companies that received loans through the program. Rep. Roger Williams (R-TX) owns auto dealerships, body shops and car washes. Rep. Vicky Hartzler (R-MO) has family members who own multiple farms and equipment suppliers across the Midwest. Rep. Susie Lee’s (D-NV) husband is the CEO of a regional casino developer and Rep. Debbie Mucarsel Powell’s (D-FL) husband is a senior executive at a restaurant chain that has since returned its loan.
Your questions, answered.
Reminder: reader questions are one of my favorite parts of Tangle. If you have something you want to see in the newsletter, simply reply to this email and write in. I’ll try to get to it as soon as I can.
Q: How do you maintain self-control on social media? How do you know when to stop and when to look in more? When to research more? When to find the “right” answers? I've struggled with that all my life, which is why I deleted my social networks. At one point I had Facebook, Instagram, Snapchat and Twitter. But I deleted them because I couldn't trust the leaders with managing misinformation. And at the same time, I couldn’t control myself either. I didn't like who I was becoming and how I was feeding into the trap of social media outrage.
— Brandon, Jenkintown, PA
Tangle: The more I produce Tangle, the less time I’ve been spending on social media. It’s an interesting paradigm I’ve noticed in my work and I’m still trying to make sense of it. Of course, most days, I try to find “right” and “left” opinions that I think are representative of the arguments I’m elevating — and Twitter is often the easiest place to do that. Twitter is also the only social media network I use for news now. But even then, the misinformation, partisan hackery and misleading nature of the news there makes me crazy.
There are two overarching things that come to mind when reading your question: 1) I don’t use social media to do “research” unless I’m looking into an issue that either explicitly happened on social media or I’m looking for a specific person’s opinions and thoughts on something. It took me years, but I’ve curated my own personal Twitter account to the point that I’m following people I mostly trust, or people I strongly disagree with, that way I’m being inundated with opinions and perspectives I find a lot of value in.
2) There are very, very few instances where reading social media brings a more well-rounded perspective about something that happened in the news. Take a simple, basic news item: a house burns down. Twitter or Facebook or Instagram are useful because they might be the first place where you see the house burned down, since a neighbor has to simply pull out their phone and record it. That’s one reason I love Twitter: I get news fast. Journalists often preview their scoops or immediately share their articles there when the news is breaking, so Twitter makes me feel like I’m first in line to hear important stories.
But in the 5-10 minutes after that video of the house burning is posted by the neighbor, a few things usually happen. One, someone spots a person in the video walking away from the scene, and questions whether they may have had something to do with the fire. Two, the person who filmed the fire is excoriated for taking the time to film the fire instead of actually helping. Three, a bunch of TV news crews show up, report about the fire in the house, and the people on Twitter start getting upset that the TV news crews don’t mention that person who was walking away from the fire. What are they trying to cover up?!
This is a simple analogy, but it works for basically every news story out there. Social media breaks a story. People on social media who are not experts question basic facts of the story. Those questions rise to a fever-pitch. Then people who are professionals report on what’s happening and are immediately discredited or challenged by the people who consumed some twenty second video clip or 50 word comment on Twitter.
This highlights both the positives and negatives of social media and news: it’s fast, it’s full of conspiracies, it’s raw content, it challenges the status quo and it upends the way we have traditionally consumed information.
Sometimes the commentary from citizens or individual research is really important. Sometimes it’s really valuable. And sometimes it discredits or appropriately contextualizes the news. But those instances are like finding a perfectly ripe avocado in the grocery store.
What I prefer is reading the story from the local reporter, who gets their report up two hours later, has sources in the police department, knows the neighbor who was filming and can contextualize the fire for everyone. That’s the story and the kind of media I try to consume — then I can go back and read the social media stuff surrounding it.
I like to say that the news world is about 90% junk food, and most people I know are — metaphorically speaking — gorging themselves on sugar. My hope is to make Tangle the mango or hummus-covered vegetable of the news world. Something that’s got the sweet or tastiness of the best junk food but is ultimately healthy for you — and doesn’t upset your stomach when you eat large portions of it.
As for how I maintain control on social media, the answer is I don’t. It’s nearly impossible for me to. I’m guilty of participating in partisan hot takes on Twitter and scrolling through my phone endlessly at times. I’m trying to get better, and I vow to keep Tangle a sacred place with more high-level thought, but I’m human just like everyone else. And I was born in the internet age. So every day is a battle where I’m trying to balance my time, take in information that’s important or valuable and also not waste away reading Twitter or Facebook or Instagram. It’s not easy and it takes a lot of intention — but I think I’m getting better every day.
A story that matters.
The nation’s unemployment numbers could be misleading, The New York Times reports. The coronavirus pandemic has broken economic charts and models — and a recent decline in unemployment appears to have actually been driven by a drop in temporary layoffs. If you remove those, what’s left is a “core unemployment” rate that continued to grow in May. This core rate was about 3.7% in December of 2019. In May, it was 5% — the highest since 2017. And growing. So while the headline unemployment rate may have skyrocketed and then fallen, this core unemployment rate is something to keep an eye on and could be more representative of long-term job loss. Click.
Numbers.
1%. Donald Trump’s lead over Joe Biden in Iowa, according to a new poll.
7.6%. Joe Biden’s lead over Donald Trump in the “blue wall” state of Michigan, according to a FiveThirtyEight average.
0.1%. Joe Biden’s lead over Donald Trump in the “blue wall” state of Pennsylvania, according to a FiveThirtyEight average.
6.2%. Joe Biden’s lead over Donald Trump in the “blue wall” state of Wisconsin, according to a FiveThirtyEight average.
1,200%. How much more likely people with underlying conditions are to die from COVID-19 than otherwise healthy people.
63%. The percentage of U.S. adults who are “extremely” or “very” proud to be Americans, the lowest percentage Gallup has ever recorded.
67%. The percentage of Republicans who are “extremely” proud to be American.
41%. The percentage of Independents who are “extremely” proud to be American.
24%. The percentage of Democrats who are “extremely” proud to be American.
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Have a nice day.
In some of the best COVID-19 news to come out yet, a cheap, generic steroid was shown to reduce deaths among patients with severe coronavirus infections. The inexpensive, widely available steroid is the first to reduce death rates among people with severe cases, according to a British clinical trial announced Tuesday. The drug, dexamethasone, is typically used to lower inflammation for other illnesses. It decreased death rates by nearly a third in patients on ventilators and by one-fifth in other patients receiving oxygen. “This is the most important trial result for covid-19 so far. … It will save lives around the world.” Chris Whitty, England’s chief medical officer, said on Twitter. Click.