At what point do we declare that the judiciary is facing a credibility crisis? When do we finally decide that laws passed by Congress have no meaning and that judges are able to rewrite them at will, often using the most laughably specious reasoning?
Yesterday, the Seventh Circuit Court of Appeals unilaterally revised that the Civil Rights Act’s ban on employment discrimination on the basis of “race, color, religion, sex, or national origin” so that it now includes a ban on sexual-orientation discrimination as well. Never mind the actual words on the page. Never mind the common meaning of the words then or now. All that matters is the right result — the triumph of the social-justice “super clause” that is hidden in every law, regulation, or constitutional provision.
The majority option — crafted by Diane Wood — insults our intelligence. She pretends to engage in standard statutory interpretation, attempting to divine what that devilishly complex word “sex” means. Here’s an actual sentence:
It is neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose.
Let’s translate: Congress had no idea that the word “sex” was so darn broad. Fortunately, however, she knows what it truly means. But the opinion moves from comedy to farce when she attempts to “prove” that sexual-orientation discrimination really is sex discrimination by posing a hypothetical: What if the lesbian woman in the case, Kimberly Hiverly, was really a straight man? A lesbian woman loves women. A straight man loves women. Thus (and this is the reasoning, I kid you not), if an employer treats the lesbian differently from the straight man, it has to be because of sex, not sexual orientation. After all, it’s sexist and stereotyping to believe that women shouldn’t love women.
This is pure sophistry. Obviously it would be sex discrimination to treat gay men differently from lesbian women, but when you treat gays and straights differently, that’s sexual-orientation discrimination. This isn’t a hard concept, but the goal isn’t to convince; it’s to rationalize.
In his concurring opinion, Judge Posner at least respects the public enough to be honest. Instead of indulging the majority’s charade that the word “sex” encompasses “sexual orientation,” he announces a rule of statutory interpretation that he calls, “judicial interpretive updating.” He’s explicitly giving an old statute a “fresh meaning,” one that “infuses [the statute] with vitality and significance today.” According to Posner, the older the law, the more vulnerable it is to a contemporary judicial update.
Read this excerpt carefully:
It’s true that even today if asked what is the sex of plaintiff Hively, one would answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity. A broader understanding of the word “sex” in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination.
In other words, even now “sex” still means sex, but that doesn’t get Posner to the kind of social justice he seeks, so the meaning of the word must change. Immediately.
Writing with her characteristic clarity, Judge Diane Sykes in dissent presents a polite civics lesson. Simply put, it’s not the court’s job to rewrite statutes:
Judicial statutory updating, whether overt or covert, cannot be reconciled with the constitutional design. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. . . . Needless to say, statutory amendments brought to you by the judiciary do not pass through this process. That is why a textualist decision method matters: When we presume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours.
Let’s be clear, however: The liberal judiciary doesn’t really embrace a philosophy of “judicial statutory updating” (or, in constitutional law, the “living constitution”). If you doubt me, watch them howl if conservative justices were to rewrite a statute that liberal justices liked. Then, they’d be all about the words on the page. Then, they’d be all about original public meaning.
There is instead an entire class of federal judges who, when faced with contentious culture-war cases, simply ask, “what can I do for social justice today?” They disrupt the constitutional system, and they don’t even (Judge Posner aside) pay us the courtesy of basic honesty about their intentions and methods.
The case will probably proceed to the Supreme Court. There’s a circuit split (in other words, different federal courts of appeal have reached different outcomes), and the ultimate fate of the law is almost certainly in Justice Kennedy’s hands. He has proven that he can understand and apply the original meaning of the law, and he’s also proven — particularly regarding LGBT issues — that he will do whatever he wants to advance a cause he so plainly likes. We can’t know what he’ll do, and thus we can’t know if he’ll hold that the statute means what it so plainly says. That’s not constitutional government; it’s judicial supremacy, and it’s creating a grave and ongoing challenge to the rule of law itself.
— David French is a staff writer for National Review, a senior fellow at the National Review Institute, an attorney