Judge-Made Law

Ames v. Ohio and the Future of Title VII

Is reverse discrimination just discrimination? Must members of majority groups prove more than minorities? Most importantly, do judges get to create tests out of thin air (or whole cloth)?

Welcome back to Lex Liberas, a (now bi-weekly) exploration of constitutional law in an accessible and textualist way. Every Friday, I write a deep dive of sorts into debates on the Constitution, its inferior laws, and our system of liberty in America. If you believe in this mission, consider sharing this with someone you know.

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Early last month, weeks before their usual blockbuster final day, the Supreme Court delivered a unanimous decision in Ames v. Ohio Department of Youth Services, vacating and remanding the Sixth Circuit's ruling that imposed a special evidentiary burden on so-called “majority-group” plaintiffs under Title VII. This surprised a number of court observers, many of whom had predicted an ideological split in a case that centered around sex discrimination. Some on the left even labelled it a case for “aggrieved straight people.” The left-leaning camps were likely shocked to see Justice Jackson write for the entire court in favor of the terrible straight white woman. Once the decision came down however, reactions generally applauded the Court for rejecting a test treating claimants differently based on their identity. Without question, such applause is warranted. Ames has largely been accepted as correctly decided.