Legal Docket: The meaning of words

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 10th of June, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. The Supreme Court handed down four rulings in argued cases last week.

More are expected this morning and so after I have the chance to read over those, I’ll bring analysis tomorrow morning.

So here’s a run down of last week’s opinions.

First (Azar v Allina Health Services), a win for hospitals that objected to the way that the Department of Health and Human Services changed the Medicare reimbursement formula.

HHS skipped the required public notice and comment period before it changed the formula.

That move cost hospitals lots of money, and the Supreme Court struck down the policy.

Justice Kavanaugh recused from the case, but it hardly mattered. Seven justices, with only a single dissenter, voted to vacate that policy.

EICHER: In the second opinion (Taggart v Lorenzen), all nine justices held that a creditor can be held in contempt for trying to collect money from a debtor who’d had his debts discharged in bankruptcy.

Here, the creditor believed in good faith that it was okay to go after the money. But the high court ruled the 9th Circuit Court of Appeals used the wrong standard to analyze the case.

So, what happened here is the justices sent the case back for further proceedings—and outlined the correct legal standard the lower court needs to use.

REICHARD: A third case (Fort Bend County v Davis) asked whether a disgruntled employee can pursue a claim for religious discrimination in court, before she first runs it through the Equal Employment Opportunity Commission.

All nine justices here also say yes, and warned employers they’d better raise their objections to that early on—otherwise, they forfeit their right to do so later. This result weakens employer defenses to claims of bias in the workplace.

EICHER: And finally, a decision (Mont v United States) about how to count time for supervised release.

Supervised release is the period of oversight after someone has already served prison time.

The question here is whether that time clock keeps running while the person is in custody for a later round of offenses. And the court’s answer is no.

This one is more narrow. It was a 5-4 decision, and it was an interesting split: Justice Clarence Thomas wrote the majority opinion, with three other conservatives joining him, but that’s only four. The decisive fifth vote with the conservatives was Justice Ruth Bader Ginsburg.

Justice Neil Gorsuch went with the liberals and signed on to Justice Sonia Sotomayor’s dissent.

What the decision means in practice is that defendants could be locked up longer.

REICHARD: Okay, now on to today’s topic: words. The late Justice Antonin Scalia once bemoaned how, as he said at the time, “words no longer have meaning.”

He wrote that in a dissent in response to the majority justices who saved Obamacare by language-gymnastics. Justice Scalia thought what the majority had done was twist things to arrive at a preferred conclusion. “Pure applesauce,” he called it.

EICHER: That’s not even the half of it.

Scalia laid other colorful complaints at the feet of colleagues: one ruling, he said, contained “interpretive jiggery-pokery”; in another instance, Scalia detected a bunch of “argle bargle.”

About the landmark same-sex marriage case, Scalia ridiculed the majority opinion as containing arguments similar to the “mystical aphorisms of the fortune cookie.” If ever he were to join such an opinion, Scalia said, he’d have to, quoting again, “hide my head in a bag.”

REICHARD: I’d often wondered how we got to that point, where even Supreme Court justices get words twisted.

Does it start at the high court? Or somewhere else?

Part of the answer is in higher education. One man who’s written extensively about the trouble there is Mark Bauerlein. He’s an English professor at Emory University. Group think and political correctness in higher education most likely affect the soft subjects, like sociology. Science and technology have empirical data, for one thing. Not so much fuzzy abstraction in those.

But the softer academic subjects?

BAUERLEIN: The language of offense fluctuates. Uh, new ideas come along that recast what is and is not politically correct. And so everyone is wary, they want to keep their heads down.

So professors won’t assign novels that might stir up trouble, forcing them to fight a heckler. Easier that way.

BAUERLEIN: And it’s a kind of soft totalitarianism.

How does this affect society, once those students go out into the world? When speech is frozen, when words are obscured from meaning, when certain views can’t even be mentioned?

BAUERLEIN: Multiculturalism wasn’t about developing other traditions, other cultures into the curriculum. It really was about simply displacing Western civilization, taking it down so that that didn’t form a core for all of the students. And so where, where are we now? Well, the humanities have lead other topics besides tradition, literary history, genius masterpieces. Those aren’t topics in the humanities now.

Now it’s identity, intersectionality, racism, or social themes looked at from the left, from the progressivist standpoint, the students are less and less interested.

The students are voting with their feet. They’re not interested in all the resentments, the negativity. They don’t want to study that. That’s not inspiring..It’s a bore, in fact.

What is Bauerlein’s prescription? Use different words. And teach things straight, the way they are written, by the author.

BAUERLEIN: Avoid all the trendiness. Let’s go back to the enduring terms like beauty and sublimity and genius and interpretation, even.

The social terms that now predominate in literary studies in my field of the humanities? These are not terms that are going to last. They’re not going be around 50 years from now. And I think a lot of colleagues who are liberal feel very uncomfortable about this. They don’t want to see a professor being criticized, say for, you know, in a class a while back in a law-school class, a guy used the n word, but he was referring to hate speech. Well, there was a complaint and he apologized for it! And I just think that he shouldn’t have apologized. Because when you apologize for that, you’re just opening yourself up. You’re gonna get attacked again.

I teach Huck Finn, and I’m not going to not teach those works, and I’m not going to not read passages from them. And the students know that up front. The bullies prey upon people who will be bullied. Bullies actually don’t want to fight. They want to win.

To counter all that, Bauerlein prescribes using better words. Not caving when bullied. And teaching students a very important concept:

BAUERLEIN: On a college campus, the first thing you ought to learn is, to say you know, I may be wrong. I believe something, but I may be wrong, and I’m willing to be shown that I’m wrong. And if you don’t show me, then I’m not wrong. But you gotta show me I’m wrong.

And back to words, again. Pay attention to them even when they seem outlandish, he says. Back in the 1980s he noticed LGBT themes were popping up a lot in the humanities.  

BAUERLEIN: I thought, well, this is just a small clique of people doing their own little thing, and no one else is going to take it seriously. Well, boy, was I wrong! These people had influence on the Obama administration. They have influence in human resources in Fortune 500 companies. They have huge influence in Silicon Valley. So, I was flat wrong about that.

What happens on campus eventually happens in society.

And what happens in law schools eventually happens in our court system. Words do indeed matter, which was the idea Justice Scalia wanted to restore to the Supreme Court.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky) In this May 23, 2019, photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington.

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