The results of the Court’s five latest opinions were something close to a clean sweep for conservatives.

After a battery of hasty decisions on its emergency docket, the Supreme Court finally got around to issuing five opinions this morning — and the dismissal of a sixth case, over a dissent — in cases fully argued on the merits. In all five cases with opinions, the Court was unanimous, albeit with varying levels of concurrence in the final opinion. The results were something close to a clean sweep for conservatives.

First up is Ames v. Ohio Department of Youth Services, which I described in October as follows:

The issue is employment discrimination under Title VII of the Civil Rights Act. Under the McDonnell Douglas Corp. v. Green (1973) standard, a plaintiff can make a prima facie case of discrimination by alleging four factors:

• the plaintiff is a member of a protected class;
• the plaintiff was qualified for and applied for an available position;
• despite being qualified, the plaintiff was rejected for the position; and
• the position remained available after the plaintiff’s rejection, and the defendant-employer continued to seek applicants from persons of the plaintiff’s qualifications.

A prima facie case will be enough to get past the complaint stage, into discovery, and perhaps to trial unless the defendant-employer can show a legitimate, nondiscriminatory reason for the employment action. But are all employees created equal? The aggrieved employee in Ames was a straight woman who complained that her lesbian boss promoted another lesbian woman above her. The Sixth Circuit concluded that, because heterosexuals are a majority group, some additional “background circumstances” would need to be offered to make a prima facie case, beyond what a member of a minority group would need to offer. The circuits are split. In deciding the case, the Court may revisit or at least refine exactly what the McDonnell Douglas test requires — and those are big stakes indeed.

The Sixth Circuit’s separate rule for “reverse” discrimination against majority groups was unanimously rejected in an opinion for the Court by Justice Ketanji Brown Jackson:

As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” . . . By establishing the same protections for every “individual” — without regard to that individual’s membership in a minority or majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone. . . . Our case law . . . makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. [Emphasis the Court’s]

With both text and precedent against the Sixth Circuit’s rule, this was the end of the matter. The effort by Ohio to claim that the Sixth Circuit rule was really just a way of interpreting real-world circumstances rather than rewriting the statute, so that “a higher evidentiary standard was being imposed on Ames because of her sexual orientation,” was too much even for the Court’s progressives to take seriously, and got the back of Jackson’s hand in under a page.

Justice Clarence Thomas joined the Court’s opinion, but, as is his wont, he also wrote a concurring opinion hunting for bigger game that he’s been pursuing for years: scrapping the discrimination-plaintiff-friendly McDonnell Douglas framework entirely:

Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. . . . The McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply. In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool. . . .

The McDonnell Douglas framework was made out of whole cloth. . . . Its contours have no basis in the text of Title VII or any other source of law. And, as far as I can tell, this Court has never attempted to justify it on textual grounds. . . . I seriously doubt that the McDonnell Douglas framework is a suitable tool for evaluating Title VII claims at summary judgment. In my view, the framework is incompatible with the summary-judgment standard; it fails to encompass the various ways in which a plaintiff could prove his claim; it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and it has created out-sized judicial confusion. [Quotations and citations omitted]

Thomas was joined by Justice Neil Gorsuch in this call for revisiting the 52-year-old standard. Thomas couldn’t resist adding his own gloss as well on why the consideration of who is and isn’t in a “majority group” is so unworkable without clear statutory definitions — a point about group definitions that he has also stressed in other contexts as a reason to avoid race-conscious and other group-based preferences:

The “background circumstances” rule also highlights how judge-made doctrines can be difficult for courts to apply. Because courts lack an underlying legal authority on which to ground their analysis, there is no principled way to resolve doctrinal ambiguities. . . . [The] rule requires courts to perform the difficult — if not impossible — task of deciding whether a particular plaintiff qualifies as a member of the so-called “majority.”. . . How a court defines the boundaries of a population can affect whether a particular person falls into a majority or minority group. Women, for example, make up the majority in the United States as a whole, but not in some States and counties. . . . Similarly, women make up the majority of employees in certain industries, such as teaching and nursing, but the minority in other industries, such as construction…Black employees in Detroit, for example, make up a majority in their city, but not in Michigan or the United States at large. . . . Similar problems arise with religion. As with sex and race, a particular religion could make up the majority or the minority, depending on how the population is defined.

Quite so. As Jackson observed, quoting Gorsuch’s controversial opinion in Bostock v. Clayton County, Title VII’s “focus on individuals rather than groups [is] anything but academic.”