Didn’t think you weren’t. I was just trying to clarify my point that “originalism” is just an excuse to think like a racist rather than making any claim about the drafters of the 14th amendment.
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FWIW, the opinion isn’t quite as it’s being presented and doesn’t have much to do with the rightly-maligned “originalism” being discussed. (here’s the actual decision, with Section V being the most relevant part)
I disagree with the reasoning, but the District Court (Judge Chang, an Obama nominee and not known as a raging conservative) also granted summary judgment to the state, for reasons having to do more with how the plaintiff structured his claims.
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How a judge gets to a iudgement is as important as the decision itself when it comes to precedent. Denying a plaintiff because of how he structured his claim presents a very different precedent than saying the use of the n-word is not enough to establish a hostile work environment while refusing to consider any factors but the victim’s own work history.* It is most often how a decision was reached that is used in future cases.
*this is an on-the-fly interpretation based on the quote in the article.
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But that’s kind of what I was getting at–I don’t think the quotes are quite giving a complete representation of what the decision is actually saying.
Again, though, and I want to be clear on this: I still disagree with the reasoning of the three justices on the 7th Circuit and the district court, but I do think it’s worth recognizing what the opinion is actually saying.
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I listened to a portion of Barrett’s hearing yesterday and Senator Booker brought up this case. Based on what Barrett said, the n-word was not used until after Mr. Smith’s employment was terminated, or perhaps until the termination process began. It was based on that fact (which wasn’t disputed) that the case was not given a hearing. The utterance of the word did not alter the conditions of employment, because it was not uttered during the period of employment.
Legal minutiae, yes. Accurate for procedural reasons, also yes based on my limited understanding of the facts of the case. Here is a relevant portion from the decision:
Finally, we address Smith’s hostile work environment claim. A hostile work environment claim contains four elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there is a basis for employer liability. Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 834 (7th Cir. 2015). Smith’s case largely founders on the second prong, be-cause the majority of the harassment he identifies was unconnected to his race. Smith says that Valle, McGhee, and a trainer identified only as “Washington” created a hostile work environment by directing profanity at him. Valle con-fronted him and used the f-word several times, in contexts like “shut the f up.” McGhee called Smith a “stupid dumb motherf” and told him he was going to “kick [his] ass.” Washington used the f-word once. As the district court pointed out, however, Smith fails to connect any of these epithets to his race. Smith himself acknowledged that Valle was “equal opportunity” when it came to dishing out profanity.
(Smith v. Illinois Department of Transportation, No. 18-2948 (7th Cir. 2019) :: Justia)
Again, I’m not a lawyer, but as a layperson in this field, I can still appreciate the attention to detail and legal specifics involved in the decision. While it may be possible that Mr. Smith experienced racial discrimination in his workplace, he simply did not present enough evidence to show that and his case was dismissed.
With regards to Barrett’s overall philosophy of originalism, my understanding is that while she may personally agree that the legal system is racially biased (which she did say during her testimony) it is not within the prevue of the judiciary to make adjustments to that system, and especially not at the level on which she was working. Changes to the law must come from the legislative branch of government.
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at todays hearing:
Responding to questions from Democrat Patrick Leahy, Amy Coney Barrett would not say whether she believed Trump should be able to pardon himself as president
wow. your system must be seriously rotten, my american friends, when a judge dogdes this question with
Barrett said that question had never been litigated and thus called for “legal analysis” about the scope of the pardon power.
are you fucking shitting me? even to consider legalising dictatorship like that, when there is only one answer;
“no, he should not have that power, but if he actualy has “legaly” speaking that power, we must do everything to change that”
jezuzfuckingchrist!
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Judicial candidates are political candidates in opposite world.
“I can answer all the questions you want about things I’ve done in the past, but I will dodge any questions about what I will do in the future”
vs.
“Vote for me for what I will do for you in the future, but please ignore the things I’ve done (or haven’t done) in the past.”
Also, she could have the shittiest qualifications ever for a SC candidate, but the GOP would still vote her in because THEY KNOW HOW SHE WILL DECIDE ON “THE THINGS”. Can we stop this charade about “knowing” how she will decide on ACA, et al.?
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I’d suggest that if someone who was white was throwing around that word at all, before or after the guy was fired, it was likely a racially hostile work place.
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Which is why it may be useful to look at the actual decision and not quotes pulled from their context.
On January 3, 2014, the Department sent Smith a “State-ment of Charges,” which sought to fire him on the ground of his unsatisfactory work performance. On January 16, Smith had a run-in with Colbert, who had recently learned that Smith had charged him, along with other supervisors, of ra-cial discrimination and retaliation. According to Smith, Col-bert, who was also black, was “very angry” and made several confrontational remarks: that there would be “eighty-one of us against one of you when we go to trial”; that Smith was going to lose everything that he owned, including his house and car; and that he was a “stupid ass ni.”
From the opinions in the case, it appears that this was a shitty place to work where shitty people were supervising shitty workers, and the general shittiness made it difficult for the plaintiff to disentangle the alleged discrimination. As the saying goes, bad facts make bad law.
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I think (as far as the court case goes) the question was: was it a shitty place to work because the guy was a total asshole towards the plaintiff because he was black? Or was it merely a shitty place to work in general because the guy was a total asshole to everybody regardless of their race? The former would be discrimination (requiring the assholerly to be restricted to protected minorities), but the latter is just an asshole making the place a shitty place to work for everybody.
She seems to be saying that in the case presented, the guy was just an asshole making it a shitty place to work for everybody, rather than only being an asshole to black people.
And yet, the guy made a pointed, racist attack. I’d suggest that just because he made it a shitty place to work for everyone doesn’t mean it wasn’t extra shitty for the person who got called a racial slur.
At this point, we need to start actually listening to the people who have these lived experiences of discrimination and believing them when they say the experience it.
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originalism is bullshit not even worthy of a capital “O”
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That’s precisely what the court decided he didn’t/couldn’t do. It isn’t a guess in the abstract–the district court decided a motion for summary judgment, which means that both sides had a chance to present all the relevant facts.
That’s what I was getting at above re: bad facts and bad law. It’s entirely possible that this guy was subject to racial discrimination and hostility, but because the fact pattern and timeline was so bad for those claims it leads to a decision like there where a judge like Barrett gets to throw in dicta like this.
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5 will get you 10 that even if the guy was an “asshole to everyone,” then he was an asshole on steroids towards Black people. That’s how punching down works.
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I’d be less likely to assume the dude was racist if he hadn’t said a racial slur… 
But he did. But of course, apparently we must only decide it’s racist based on whether or not the person is both nice to all white people AND he must be actively racist in an obvious way at all time. That’s not how racism works, even among active racists. The KKK primarily targeted Black people, but other people who were/are white were also victimized. That doesn’t make the KKK LESS racist because they targeted white Catholics and Jews!
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But the alleged asshole in question was also black. It was not a white guy picking on a black guy, it was another black guy picking on a black guy. That makes the case not quite so… um. black and white. It it was an issue of systematic unequal mistreatment of blacks who worked there, that’s discrimination. If it was a black supervisor having an argument with a belligerent former employee after firing them for cause, that makes it harder for the discrimination claim to stick.
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Same here.
And yet:
Have you never heard of Candice Owens, or Dave Clark?
Self hating Black people are the ‘kapos’ of the Black community…
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Are you saying Black people can’t hold prejudiced views based on white supremacy about other Black people? Especially when it comes to someone holding a position of power? Explain Candace Owen then?
Systemic racism shapes all our views on race, even those of Black people.
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Jinx.
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That’s a really great point, and one that would have been a better outcome to Barrett’s decision. Instead of her reasoning, it would have been better had she suggested that the existence of certain slurs should shift the burden of proof in a case like this, where the employer is now working against a (rebuttable) presumption of a hostile work environment based on the slur. In other words, we should believe them when they show who they are.
But, that’s not how the law works at present.
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