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Recent protests over racial injustice and police brutality are fueling an eleventh-hour surge for Kentucky state Rep. Charles Booker as he looks to overtake Amy McGrath in the race for the Democratic Senate nomination in Kentucky.

Booker, a first-term legislator from Louisville, has largely flown under the radar since launching his bid in January to challenge Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrade groups make lobbying push to be included in small business loan program Protesters gather at McConnell's Kentucky home: 'No justice, no sleep' Republican rift opens up over qualified immunity for police MORE (R). But he has emerged as a powerful voice as protesters have taken to the streets in Louisville and across the country after the police killing of George Floyd.

A growing number of Democrats have begun lining up behind him, believing he is better suited for the political moment than the well-funded McGrath, who rose to prominence in 2018 during her close but unsuccessful bid to unseat Rep. Andy BarrAndy BarrProgressive Booker emerges as late threat to McGrath in Kentucky primary Rep. Andy Barr's wife dies suddenly at 39 McConnell's 2014 challenger endorses Charles Booker in Senate race MORE (R-Ky.).

Charles kind of met the moment, said Mark Riddle, a Kentucky-based Democratic strategist and the president of the political nonprofit Future Majority. People seem to be for Booker right now in a way that I havent really seen them for Amy.

A recent internal poll conducted for Bookers campaign showed him trailing McGrath by 10 points ahead of the June 23 primary. While thats not an insignificant margin, a similar internal survey fielded in April showed him down by more than 50 points.

At the same time, interviews with nearly a dozen political operatives in Kentucky revealed a growing consensus that Bookers late-breaking momentum could prove fatal or at least highly damaging to McGrath.

Last week, Booker scored endorsements from two of the most prominent progressives, Sen. Bernie SandersBernie SandersFormer Sen. Kaufman to run Biden transition team Overnight Defense: Navy won't reinstate fired captain | Dems probe use of federal officers in DC | Air Force appoints woman as top noncommissioned officer Jamaal Bowman raises M, launches 0,000 ad buy ahead of New York primary MORE (I-Vt.) and Rep. Alexandria Ocasio-CortezAlexandria Ocasio-CortezJamaal Bowman raises M, launches 0,000 ad buy ahead of New York primary Warren endorses Booker in Kentucky Senate primary Texas lawmaker endorses Eliot Engel MORE (D-N.Y.).

And on Tuesday, Alison Lundergan Grimes, who challenged McConnell in 2014 and remains one of Kentuckys most prominent Democrats, threw her support behind Booker. Riddle said that endorsement could help introduce Booker to voters outside of Louisville, the most Democratic part of the state and the area where thelegislator is best known.

Those endorsements flew in the face of Senate Democratic leaders, who encouraged McGrath to challenge McConnell and eagerly backed her.

McGrath's high profile and early support from national Democrats has translated into unmatched fundraising success for the former combat pilot. Since January, she has raised upward of $24 million andhas more than $19 million in cash on hand, a sum matched by no other Senate candidate.

By comparison, Booker brought in less than $800,000 in that same time frame. His most recent filings, which span from April 1 to June 3, show roughly $285,000 cash on hand. But that was before Booker began picking up momentum, and since then he has raised another $1.5 million over the past two weeks, his campaign manager, Colin Lauderdale, said.

Booker has taken advantage of the last-minute cash injection with a foray into paid television advertising. Over a two-day period last week, his campaign spent more than $400,000 on cable and broadcast ads, according to Advertising Analytics. Prior to that, he had not invested in traditional paid media.

On Wednesday, his campaign unveiled a new ad spot highlighting McGraths absence from and Bookers presence at the recent protests that erupted in Louisville after the shooting of Breonna Taylor, a black woman who was killed by police at her apartment in March.

Asked during a June 1 Democratic debate why she had not appeared at the protests, McGrath said that shewas spending time with her family an explanation featured prominently in Bookers latest ad.

I think if the McGrath campaign had a do over they probably would have been front and center on this a little bit more, lets put it that way, Matt Erwin, a Democratic strategist and former communications director for the Kentucky Democratic Party, said.

Terry Sebastian, a spokesperson for McGraths campaign, noted that she has attended several events and had conversations with local leaders about police brutality and racial injustice.

Based on these conversations, shes developed ideas on what can be done federally to start addressing police violence and systemic racism in the country including incentivizing states to require an independent investigation each and every time a police officer uses force that results in serious harm or death, banning chokeholds, training to recognize and counteract racial bias and guaranteeing every officer has a functioning body camera thats actually turned on, Sebastian said.

But several political operatives in Kentucky said that part of his recent rise also owes to lingering concerns about McGrath and the fact that Democrats in Washington lined up behind her so quickly. Some Democrats complained that other contenders, like Booker, were passed over in favor of McGrath.

Some people here were rankled because there were any number of good candidates, a Kentucky Democratic operative said. The party committee in Washington sort of handpicked her.

At the same time, some Democrats criticized early unforced errors by McGrath. In one of her first interviews after launching her campaign last year, for example, McGrath said that she would have supported Justice Brett KavanaughBrett Michael KavanaughActing DHS Secretary: Supreme Court DACA ruling 'usurps the clear authority of executive branch' Supreme Court surprises rattle disappointed right Senate confirms McConnell protege to D.C. Circuit MOREs nomination to the Supreme Court. She reneged on that statement hours later, saying she would have opposed his confirmation.

Her allies say she remains the candidate with the best chance of taking out McConnell in November, arguing that Bookers more progressive platform and endorsements from the likes of Sanders and Ocasio-Cortez are political liabilities in a state that President TrumpDonald John TrumpTrump mocked for low attendance at rally Trump suggests legislation that would jail people who burn the flag for a year Trump makes defiant return to campaign stage amid controversies MORE won by 30 points. The Senate race is rated as "likely Republican" by The Cook Political Report.

"Amy McGrath has a powerful grassroots campaign and a broad coalition of support across Kentucky that have made her the strongest candidate to defeat Mitch McConnell in November, said Stewart Boss, a spokesperson for the Democratic Senatorial Campaign Committee, which has endorsed McGrath.

McGrath also has some key advantages. The presence of another liberal in the race, Marine veteran and farmer Mike Broihier, could split the progressive vote. Whats more, many voters may have already mailed in their ballots prior to Bookers recent surge.

Several county Democratic Party chairs agreed Bookers surge may be a moot point if too many Democrats have already voted. Many noted enormous expansions of early absentee ballots compared to prior years.

Crimson MacDonald, the chair of the Campbell County Democratic Party in northern Kentucky, said shes received a dozen emails asking how to change a vote.

The surge is real, and it would be enough to get him over the finish line, MacDonald said. I dont know how many people have already voted. If a majority havent, Id say the odds are in his favor. If the majority have voted, that might do him in.

If Democrats want a shot at taking down McConnell, theirstrategy will run through northern Kentucky, a string of counties in the Cincinnati suburbs that have historically voted Republican but flipped last year to deliver a victory to DemocraticGov.Andy Beshear over incumbent Matt Bevin (R).

Tom Elfers, the Democratic Party chairman in Kenton County, said Beshears victory energized local Democrats, proving that an unpopular Republican can be ousted. McGrath, as a native of Lexington, has an advantage in the area, he said.

She grew up about a mile from where Im sitting right now, Elfers said. That gives her a clear advantage over the other two, just because we know her shes a hometown girl.

Ousting McConnell in November will likely be a long shot for Democrats. McConnell is widely seen as an expert campaigner and fundraiser, and Kentucky has drifted further to the right over the years. The state hasnt elected a Democrat to the Senate since 1992.

McConnells allies are also quick to note that, despite Beshears victory, Republican candidates won every other statewide office that year.

Scott Jennings, a Republican strategist and former campaign aide to McConnell, said who wins the Democratic primary matters little to his prospects, especially given that Trump will be on the ballot in November.

Ultimately, McConnell will run against someone who is hell no on Trump or hell yes on AOC and Bernie Sanders, Jennings said. So its fine either way.

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Progressive Booker emerges as late threat to McGrath in Kentucky primary | TheHill - The Hill

Already, a split has emerged in the way progressive leaders and protesters approach systemic racism and police reform, raising broader questions about whether elected officials are in sync with what is happening on the ground. While some activists have embraced the protesters rallying cry to defund the police, many progressive leaders, including Mr. Sanders, are calibrating their approach.

Unlike during the primary season, when he often took the most leftward position, Mr. Sanders has disagreed with protesters demands to eliminate funding for police departments, staking out a careful position on police reform.

Anyone who thinks that we should abolish all police departments in America, I dont agree, Mr. Sanders told The New Yorker. In keeping with his stance when he was mayor of Burlington, Vt., he supported paying police officers more.

At the same time, progressive organizations like the Sunrise Movement, a youth-led liberal environmental group that endorsed Mr. Sanders in the primary, have aggressively pushed to defund the police, adopting the policy as one of their own. When Mr. Biden released a statement last week that took a more cautious position on police overhaul, the Sunrise Movement denounced his stance on Twitter. @JoeBiden youre hurting any chance you have at defeating Trump by taking these centrist stances, the group said. We need someone fighting with us to create bold change, not someone to maintain the status-quo #DefundPolice.

But while most progressives might not have seen this revolution coming, they are catching up.

Rahna Epting, the executive director of the progressive group MoveOn, said the protests were a time for national groups like hers to listen to the grass roots. In terms of what we do, we see the people on the streets right now, this is completely organic, she said. This is beyond any one organization or institution.

She added: Were recognizing the moment is not ours, its the peoples, and we need to flank the people right now.

The protests are not directly connected to partisan politics, even though there are some similarities between their broad demands and the revolutionary sentiment embodied by Mr. Sanderss campaign. But if there is overlap, it is not yet clear whether the energy on the ground, particularly among young progressives who supported Mr. Sanders but remain dissatisfied with Mr. Biden, will translate to enthusiasm at the ballot box in November.

Read more:
Bernie Sanders Predicted Revolution, Just Not This One - The New York Times

Illustration by Dave Murray

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Its the best of times for car insurersbut not for their stocks. That could make it a good time to buy shares of Progressive.

Stay-at-home orders have forced people to stay put, which means fewer cars on the roads, fewer accidents, and fewer claims to pay. As a result, profits are soaring for auto insurers such as Geico, State Farm, and Progressive (ticker: PGR). Times are so good, in fact, that they are giving premium rebates to policyholders.

Yet Progressives stock has risen just 1% in the past three months, to a recent $76.50, even as the S&P 500 has gained 10%. Investors apparently are concerned about what the companys earnings will look like once people start driving again, and theyre worried about longer-term issues, including the rise of autonomous vehicles.

They neednt worry: At 14 times next years expected earnings and a valuation below its historical average, Progressives stock reflects a lot of bad news. The shares underperformance has given investors an opportunity to buy a growth stock at a value price.

Americans love to drive, but the coronavirus pandemic has done the seemingly impossibleforced them off the road. Miles traveled on U.S. highways fell 19% year over year in March, and 40% in April. Less travel has meant fewer crashes, and fewer claims for Progressive to cover. The companys loss ratioclaims paid, divided by insurance premiums receivedwas almost 20 percentage points lower in April than a year earlier, falling to a historically low level, says Bill Wilt, an analyst at Gordon Haskett.

As a result, earnings estimates for Progressives current quarter have risen over the past few weeks, from roughly $1.30 a share to $1.80. But earnings are expected to fall 11% next year, to $5.45 a share, as more normal levels of driving resume. That raises an obvious question: Why pay up for earnings growth that isnt likely to last?

Other changes wrought by the coronavirus are more helpful to auto insurers. For one, the widespread launch of autonomous vehicles has been pushed back as car makers try to preserve cash. With self-driving technology costing billions of dollars to develop, the timeline for fully autonomous cars likely has been delayed by a couple of years.

We called a winter for pure autonomous driving ventures a year ago, New Street Research analyst Pierre Ferragu tells Barrons. The technological breakthrough didnt come. These businesses have made great progress, but see the goal post of a sustainable business model moving back for every step they take forward on the tech and performance front.

If a slower shift to autonomous driving means more drivers will stay behind the wheel, a societal shift could see their ranks grow in coming years. Millennials, now the largest generation in the U.S., arent getting licensed to drive at the same clip as prior generations. About 80% of U.S. residents 24 to 44 years old have a drivers license. Twenty years ago, that figure was closer to 90%. When people hit 40 and beyond, however, the vast majority in America find they need to drive. That could mean another 20 million licensed drivers, or 10% more customers for auto insurance.

Wall Street recognizes the opportunity, at least in part. Progressive is a relatively popular stock with securities analysts, and about 55% to 60% of those covering the company rate the shares the equivalent of Buy, similar to the 55% Buy ratio for stocks in the Dow Jones Industrial Average. The average analyst price target for Progressive shares is about $88, or 15% above current levels. But the opportunity could be greater than that.

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Progressive has a long history of solid business execution. The stock has returned 26% a year, on average, over the past five years. Its advance has been propelled by strong earnings growth; profits have compounded by 24% a year, on average, over that span.

Progressive has a couple of positive factors working in its favor, says Credit Suisse analyst Mike Zaremski. A lot of new business is being sold with telematics [which track driver data], or as a home and auto bundle.

These are more profitable policies than more conventional auto insurance, Zaremski says. Telematics policies are priced dynamically. For example, policyholders pay less if the tracking device shows that they dont speed or brake hard frequently, which it interprets as signs of potential recklessness. Zaremski rates Progressive stock the equivalent of Buy, with an $85 price target.

Progressive has been able to grow earnings at such an impressive pace in part because of its tight control over its combined ratio. Thats an industry term for operating costs plus insurance claims, divided by premiums. The lower the combined ratio, the more profitable the insurer. Progressive has always targeted a combined ratio of about 96% on new business, according to MKM Partners analyst Harry Fong. Once people begin to go back to work, we believe the company will begin to resume its longer-term [growth] trends, he writes. Meanwhile, reported earnings will remain elevated due to lower loss frequency.

Progressive executives didnt respond to Barrons requests for comment.

Fong expects Progressive to earn $5.20 a share next year. He rates the shares Buy, with a $90 price target, and believes they should trade for about 17 times earnings.

Progressive shares now change hands below their five-year average price/earnings multiple of 15, and the S&P 500s P/E of 20 times next years expected earnings. If investors start to believe that Progressive can grow earnings off a higher base, the multiple could return at least to its historical average. The stock could gain back some of the [recent P/E] discount, says Zaremski.

Assuming Progressive could earn as much as $6 a share in the future, and trade up to 17 times earnings, the shares could hit about $100 apiece. That would be about 30% above the recent priceproviding insurance against investor disappointment.

Write to Al Root at allen.root@dowjones.com

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Autonomous-Driving Delays and Other Reasons to Buy Progressive Stock - Barron's

Batteries

Published on June 20th, 2020 | by Harry Stoltz

June 20th, 2020 by Harry Stoltz

Lindsey Boylan is taking on representative Jerry Nadlers NY-10 seat in the upcoming 2020 House election. Running on a platform of climate change legislation, curbing systemic inequality, and expanding economic rights, Boylan is pitching herself as someone who will actively fight for a progressive future.

Boylan recently debated Rep. Nadler on the cable channel NY1 to discuss their various policy positions, and why each candidate deserved to win. Ms. Boylans criticism focused heavily on Rep. Nadlers contribution history from various fossil fuel-related companies, along with his record in Congress. The deadline for voting in the New York primary is June 23rd.

Im looking forward to talking about climate change with you today, since it seems to be a central part of your campaign.

Absolutely. If you look at my district on a map, its basically all coastline. My interest in this topic comes from a passion, but we also dont have the luxury of avoiding it, as my district is front and center for the next climate-related disaster.

What are Nadlers weakest points on climate, and how will you be different in those areas?

Ugh, so hes a lot like these progressives that have been in office for decades, where the moment that traction began to pick up around the Green New Deal, certainly, hes on board with it, but hes done virtually nothing to actually lead on this issue in his career, even though he represents a district thats basically all coastline. So, its not that he has the wrong worldview, its that hes done nothing to help, and he only started talking about it once he had a very serious challenger.

About the Green New Deal, how would you support that, in ways other than just voting for it?

When I was a college student at Wellesley, in my senior year, Hurricane Katrina happened. New Orleans was completely flooded, a lot of the levees broke, and that was one of the biggest examples of climate-related disasters that weve had in the US. In fact, it did exactly what climate disasters do, in that it hit our most vulnerable communities the worst. Black residents have still, in many cases, never fully recovered.

The loss of life was not even, either in terms of racial or socioeconomic background, and our government failed at every level, including FEMA. That really inspired me to want to go in for this planet, because the whole question was: how do we do better, how do we rebuild, how could we possibly do something different than just replicate the problems that weve had? And, of course, thats not what happened in New Orleans.

After Hurricane Katrina, its still very uneven. And that question really motivated the first moments of my career as a scholar. My whole professional life has developed around that. The week after I came home from my honeymoon, Hurricane Sandy happened, and I live within the frontline of what was hit by the hurricane. We didnt have power for a week, and this district was one of the hardest hit.

It was probably one of the first disruptive moments besides 9/11 which a lot of New Yorkers had experienced while physically being here. Ultimately, I worked at New York State, and I could actually oversee the recovery, which 7 years after Hurricane Sandy is still administering funds for rebuilding. I also oversaw some of the recovery work in Puerto Rico, after Hurricane Maria. All of these examples are hurricanes that were made worse, and will be made worse in the future because of climate change. I had to oversee the state emergency response in Puerto Rico and the recovery response.

What I think I can fundamentally bring to the table, in a Green New Deal, and getting movement on climate change, is a real understanding of what works and what doesnt, in even responding to the climate-related disasters that we already have that are only going to be increasing. This is a big reason why I want to be on the appropriations committee, because one of the key ways that we failed Puerto Rico was in the response, in terms of getting resources.

We still havent, and thousands of people have died as a result of it. So, I am all in on getting a Green New Deal passed. I have a 6-year-old daughter, and we need to build a better system for her. Were working under borrowed time right now, and the specific skill that I have is operationally managing and having overseen all the massive-scale work in response to climate to these disasters. That will absolutely affect the kinds of positions that I will take in congress.

It really does seem like we have left Puerto Rico behind this last time.

Yes, and thats ultimately a result of failed government policy.

Besides the Green New Deal, which other policies would you like to see implemented?

Im very focused on legislation thats going to help states and localities transfer to alternative energy, so in terms of incentives, anything that further supports the solar power industry, insulation, and anything that supports wind power development. Im less concerned with where the parts are manufactured, and making new jobs for people here, since this is what the solar power industry already does, because the #1 job in the next 10 years are going to be solar panel installers.

The ways in which we can incentivize alternative energy, mass transit, and particularly in respect to building. This is because in a place like New York City, the most pollution is coming from our buildings, not oil. So, anything that deals with those categories, in particular, and Im also very focused on legislation which helps with the refugee crisis globally.

As you probably know, we have more refugees on a global scale than weve ever had in recorded history, which is around 65 million people or so. A lot of that has to do with climate-related factors. If people are not safe, and able to live in their homes, nothing is going to stop them from going where they can, to help their kids survive, and we need figure that out.

I wanted to ask you about EVs, and how we should incentivize them in the future.

I am originally from San Diego, California, and its really unfortunate to me that a lot of the leaders in California at the state level are being undermined by federal regulatory rollback, and I think we need to basically undo everything that Trump has done. Im interested in legislation which helps incentivize that, which kind of goes back to your question about electric vehicles.

I know that one of the biggest issues is battery production, at least that is the case with Tesla, and I would want to caution and say that we need to think very carefully about that aspect of technology development, because we dont want to create massive amounts of waste that we will have to deal with later.

We need to do a lot more for research, and really incentivize advancement on that front. I know that one of the things that I really appreciated about the Obama administration were a lot of the university-level research grants from the Department of Energy that went out to support things like battery production, energy storing capabilities, and related technology which will help advance electric vehicles.

So, I really think that we need to spend a lot more money on research, and need to roll back a lot of the problems created by the Trump administration, particularly in the EPA, and find ways to incentivize electric vehicle production, and not just for states like New York and California.

What I would say is also, for instance in the case of Tesla, them doing charging infrastructure development only really serves a limited group of electric vehicles, and not how it should be developing. Thats the kind of infrastructure which should be led at the federal level, and should be led with a lot of thought, like the way that we developed our US transportation system.

You mentioned the EPA, and the Trump administration actually rolled back roughly 100 environmental rules recently.

Exactly.

Income inequality seems to be another centerpiece of your campaign. I was interested if there is an overlap between that and climate-related issues?

Absolutely. What I saw in Puerto Rico, for instance, is that the people who are the hardest hit, are the people that have the fewest options. People who cant go somewhere else. People who dont have relatives with means to help them. Environmental deprivation and climate change compound issues of inequality.

The people who are hardest hit by this are statistically women, children, and seniors in vulnerable communities. In pretty much all of the examples that I mentioned: Hurricane Katrina, Hurricane Sandy, and Hurricane Maria, which I have researched and been engaged with in my professional life, in every case the people who are hardest hit are the people who suffer from the most inequality, are the most insecure in terms of our economy and housing. Even in terms of FEMA response, it has traditionally been much easier to get assistance if you own your home than if you rent, just as one example.

Where does climate policy fall on your list of priorities if you win this race against Nadler?

Its right at the top. The two greatest issues of my community and our time are income inequality and climate change.

Recently, Sunrise NYC actually endorsed Rep. Nadler. What happened?

They didnt actually endorse him, they said it was a guide. To your point, I think it was total BS that they said that. Unfortunately, power protects power, and based on my experience, typically for a lot of women running for office, endorsements simply enforce the power structures that we have. Its really unfortunate that the Sunrise NYC people didnt educate themselves in advance.

The congressman has taken money repeatedly for decades from the biggest logistic supply chains for corporations in this country. Hundreds of thousands of dollars in coal infrastructure support from various companies. CSX, to be specific, BSNF Railway, Norfolk Southern, etc.

Data and information from the Boylan campaign, verified by Harry Stoltz.

I was actually going to ask you about this, because money in politics is really the issue which affects all other issues.

Yeah, it absolutely is. As youve probably seen, Sunrise NYC is being absolutely silly for their choice, because they did not choose the progressive candidate who will actually act on climate change, and who hasnt had two decades to do it with nothing to show. They even said that I had three investments in fossil fuel companies, which isnt true, because my husband had three minor holdings in fossil fuelrelated companies. It was never mine, and as soon as it was pointed out that he had those, he divested, which is exactly what youre supposed to do. I put very little credence in endorsements where people dont even take the time to understand what theyre talking about.

There are several people who look down on the idea of primarying establishment Democrats in the Trump era. Whats your pitch against that?

Sure. The argument is usually hey, so you seem really great, and really smart, but Im focused on getting Republicans out. Well, think about this like a sports game. There are different players for every position, and the fact that in my community we dont have someone who even knows how to lead, and is just a follower is incredibly harmful to the entire movement. We dont just need people to replace red/blue districts, we need quarterbacks for progressive change.

That is exactly what people like AOC are doing, what people like Pramila Jayapal are doing, like Ro Khanna, like Ayanna Pressley. We actually need people to lead on these things, and that happens to take place in blue districts, because we dont have to worry about winning reelection, because they know that if they happen to do a good job, and if they lead on these important issues, theyll get reelected. You cant do that in a red/blue district, and youve got to do that in my district. And usually when I say that, people listen.

Tags: California, climate policies, climate policy, co2 emissions, Congress, disaster relief, Donald Trump, EPA, FEMA, green new deal, Hurricane Katrina, Hurricane Maria, Hurricane Sandy, hurricanes, Jerry Nadler, New York, NYC, NYC Green New Deal, NYC Sunrise, Obama, Obama Administration, policy, Puerto Rico, Sunrise Movement, Tesla

Harry Stoltz Harry Stoltz is an aspiring organic chemist, and a volunteer student researcher at the California Institute of Technology. He is fascinated by cutting edge technology and a clean future. Harry is the Lead Space Correspondent for CleanTechnica, and also writes about clean energy, self-driving cars, and battery tech. You can find Harry on Twitter @harrystoltz1.

See more here:
An Interview With Progressive Candidate Lindsey Boylan About Climate Policy & Taking On Jerry Nadler - CleanTechnica

Katie Eyer is a professor of law at Rutgers Law School. She co-authored an amicus brief on behalf of scholars of statutory interpretation and equality law arguing that textualism required a finding in favor of LGBTQ employees.

Title VII has prohibited discrimination because of sex since 1964and yet many lower courts have long held that employers are free to discriminate against LGBTQ employees. Yesterday, the Supreme Court held that anti-LGBTQ discrimination is indeed because of sex under Title VII in the consolidated cases of Bostock v. Clayton County, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC. This rulingwhich has enormous implications for equality for LGBTQ workersalso makes clear why progressive textualism, i.e., progressive arguments for the centrality of legal text, is important for the future of equality change.

Before addressing the wider implications of the Bostock decision, it is important to observe how enormously significant the decision is for LGBTQ employees, who remain without explicit protections against discrimination in many states. For many employees, especially in the transgender community, this has meant that employment discrimination continues to be a lived reality, deeply disrupting personal and professional lives. As the many who have lost their jobs in the recent COVID crisis can attest, it is no small thing to be deprived of your source of income, and thus the ability to support yourself and your family. For many LGBTQ workers, this has continued to be a real risk of their working lives, and too often a lived reality.

In a 6-3 opinion by Justice Neil Gorsuch, Bostock makes clear that LGBTQ workers are indeed already entitled to federal employment discrimination protections, despite the long history of discrimination against them (and some lower court judges conclusion that such discrimination is lawful). Title VII prohibits employers from fail[ing] or refus[ing] to hire or discharg[ing] any individual because of such individuals sex. As the majority opinion recognizes, this language required an outcome in favor of LGBTQ rights. Because it is impossible to discriminate against an LGBTQ employee without such discrimination also being because of sex, anti-LGBTQ discrimination is prohibited.

As the majority opinion further elaborates, the reasoning behind this conclusion is straightforward. The Supreme Court has already held, as a matter of textualism, that because of connotes but-for causationmeaning that an employer has acted because of sex whenever that action would not have occurred but for the employees sex. And in each and every case of anti-LGBTQ discrimination, the employees sex is a but-for cause of the adverse action taken against them. Thus, Susan, a lesbian, would not have been fired for her attraction to women if she were Mark, a cisgender man. Similarly, John, a transgender man who is fired for claiming a male identity and having a male appearance, would not have been fired if he, like Mark, had been assigned the male sex at birth.

Gorsuchs opinion for the majority embraces this straightforward textualist logic, and rejects the numerous contra-textual arguments that were offered by the employers and the government in Bostock. As Gorsuch writes:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters imagination supply no reason to ignore the laws demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, its no contest. Only the written word is the law, and all persons are entitled to its benefit.

This reasoning, written by a conservative justice in service of an opinion recognizing historic equality rights, is important to note. Although textualism has often been viewed as a tool of conservative legal advocacy, it need not and ought not be viewed that way. As organizations like the Constitutional Accountability Center and other scholars and activists have recognized, textualism is not an inherently ideological methodology, only serving conservative aims. Rather, there are many reasons for progressives, like conservatives, to celebrate a methodology that places limits on the ability of biases and individual beliefs to infect judicial decision-making. Indeed, as the Bostock opinion notes, textualism properly understood can serve as a bulwark against the exclusion of politically unpopular groups from the laws protections.

Thus, for example, as Gorsuchs opinion observes, the public (and Congress) in 1964 surely would not have believed that LGBTQ peoplewho were at that time a highly stigmatized minoritywere covered by Title VII. But as the opinion further notes, this is irrelevant if LGBTQ people are included within Title VIIs broad textual protections (although it would not be irrelevant under an approach that prioritized congressional intent). So too, past textualist opinions by the late Justice Antonin Scalia and others have rejected the exclusion of stigmatized groups like prisoners from the protections of expansive rights lawseven though a more purposivist approach might lead to a contrary result. Thus, although text may constrain legal outcomes in ways that progressives disagree with, so too it can at times ensure that, as the Bostock majority puts it, all persons are entitled to the benefit of the laws terms.

There are important stakes to progressives willingness (or unwillingness) to fully embrace textualism as an interpretative approach. As the dissents in Bostock make clear, control over the very meaning of textualism is a part of those stakes. Both textualism and originalism can be infinitely malleable when only one side of the argument claims the authority to define their contours. This is most strikingly evident in Justice Brett Kavanaughs dissent, which ignores the Supreme Courts own pronouncements (made by the conservative wing of the court) that the ordinary meaning of because of in Title VII is and was but-for causationpronouncements that all but compelled the outcome for the employees here. Instead, Kavanaugh suggests that the court should look to the public and Congress beliefs about expected applications as the barometer of ordinary meaningan approach that bears an uncanny resemblance to long-discredited uses of congressional expectations to contravene text. But his dissent nevertheless unfailingly claims the mantle of real textualism. Without the counterweight of progressive textualist arguments, it seems possible, indeed likely, that a nominally textualist argument like Kavanaughs would have carried the daydespite the fact that that his arguments contradicted prior conservative textualist precedents.

But as Bostock demonstrates, progressives have the ability and the opportunity to reclaim the other side of the debate. As Justice Elena Kagan famously put it in describing Scalias influence, [w]ere all textualists now. That pronouncement ought not signal a defeat for progressive approaches to statutory interpretation. Rather, the rise of textualism offers powerful opportunities for progressive lawyers, scholars and judges to think about the relationship of text to law and the ways that text safeguards the most vulnerable among us.

And those opportunities will be needed in the years ahead. As the racial-justice context vividly illustrates, winning formal legal protectionsin Bostock or indeed in any contextis no guarantee of equality on the ground. The victory of LGBTQ rights in Bostocka very important step forwardwill not translate seamlessly into lived equality for LGBTQ individuals, or for anyone else. Although there will be many fronts in the continuing equality strugglesfor LGBTQ workers, for black and brown victims of police violence, for disabled students denied educational equality, for women subjected to harassment and violencethe law will surely continue to be one. And in those legal struggles, textualism will afford an important tool.

For a vivid reminder of the importance of textualism as a tool, one need look no further than Justice Clarence Thomas dissent from denial of certiorari in Baxter v. Bracey, the same day that Bostock was decided. Even as Black Lives Matters protests continue to grow around the country, Thomas, no wild-eyed liberal, calls in Baxter for the limitation of qualified immunity [b]ecause [it] appears to stray from the statutory text of 42 U.S.C. 1983. The abolition or limitation of qualified immunity, a doctrine that continues to allow many cases of police brutality against black and brown citizens, some of them also LGBTQ, to be dismissed on technical grounds, is surely an important, though radically incomplete, step toward lived equality.

So too, as scholars like Sandra Sperino have shown, many of the doctrines that allow judges to regularly dismiss the statutory discrimination claims of all groupsblack and brown workers, religious minorities, women, people with disabilities, LGBTQ employeesare completely untethered from the statutory text. For that reason, some conservative judges (including then-Judge Gorsuch), have argued for at least some such doctrines abandonment. There are thus reasons to believe that if we want employees of any kind to have access to meaningful discrimination claims, progressive textualism will be important.

The law in the courts is of course only one tool of equality change. Protest, social change, legislative and administrative reform are all no doubt at least as useful for securing the lived reality of equality. But for that part of the work of equality change that will continue to take place within the courts, Bostock serves as a crucial reminder: Progressive textualism is important.

Posted in Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Featured, Symposium on the court's ruling in Bostock v. Clayton County and Harris Funeral Homes v. EEOC

Recommended Citation: Katie Eyer, Symposium: Progressive textualism and LGBTQ rights, SCOTUSblog (Jun. 16, 2020, 10:23 AM), https://www.scotusblog.com/2020/06/symposium-progressive-textualism-and-lgbtq-rights/

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Symposium: Progressive textualism and LGBTQ rights - SCOTUSblog