Aviam Soifer (University of Hawaii at Manoa – William S. Richardson School of Law) has posted How the Supreme Court Distorted Text, Ignored History, and Gaslighted the Bold Promise of the Civil Rights Act of 1866. A Comcast Case Study (2 Am. J. Law & Equality, 208 (2022)) on SSRN. Here is the abstract:
This essay focuses on the strikingly ahistorical United States Supreme Court decision in Comcast Corp. v. National Ass’n of African American–Owned Media. The Court’s strained yet unanimous view of the country’s first civil rights law has been little noticed, but it is likely to have a substantial effect over time. The Court introduced a new requirement that a civil rights plaintiff must persuade a fact finder that the defendant’s racial discrimination was the “but-for” cause of an alleged harm to establish a violation of the Act. Justice Gorsuch’s opinion for the Court claimed that this result was compelled by “clues” accumulated “collectively … from the statute’s text, its history, and our precedent.” Despite the Court’s professed devotion to textualism in numerous decisions, however, Comcast offers a troubling illustration of the Justices’ willingness to manipulate categories and to use sleight of hand when they do not wish to be textually bound.