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Those Ever-Moving Goalposts

Football ready to be kicked.

Since the unexpected—and, in certain circles, inconceivable—election of Donald Trump as President, federal courts have aggressively obstructed his executive orders on immigration, leading to complaints that activist judges are staging an insurrection or even a coup d’état against a President they consider illegitimate. I’ve indulged in a bit of this commentary myself, but—unfortunately—the problem is deeper and more serious than a few rogue judges resisting Trump’s policies. Much of the nation’s elites, and especially the legal class that dominates the judiciary, are in a bipartisan revolt against the bourgeois social order and the constitutional loyalties it underwrites. Trump’s election has merely exposed the extent of the longstanding (and widening) cultural chasm that divides the lumpenproletariat (Hillary’s “deplorables”) from the self-anointed elites.

Judicial activism is not a mysterious cabal; it takes place openly, using doctrinal sleight-of-hand to reach results favored by the intellectual classes who dominate the media, universities, and especially the legal culture. While judicial activism is generally viewed as a weapon wielded by the Left, it is more accurately seen as a nonpartisan means for the intellectual class to circumvent constitutional government via its proxies (or, perhaps, its ventriloquist dummies)—a judicial oligarchy drawn from the ranks of elite law schools (which happen to be overwhelmingly liberal). Justice Antonin Scalia once caustically criticized his colleagues for “inscribing one after another of . . . the countermajoritarian preferences of the society’s law-trained elite” into the Constitution.[1]

The judiciary’s implacable opposition to capital punishment (manifested recently by an Obama appointee’s quickly overturned injunction of six executions by the state of Arkansas), is one example. As Justice Anthony Kennedy has demonstrated, even Republican judges appointed by conservative Presidents can be coopted by the attitudes and policy preferences of the cultural elites, whose views on a variety of subjects—religion, immigration, diversity, and feminism, to cite just a few examples—are diametrically opposite of those of the electoral majority who supported Donald Trump.

The agenda of the elites is not ideology per se, but something that is actually more rigid: intellectual fashion. In his 1978 Harvard commencement address, Alexandr Solzhenitsyn observed that, even without censorship, “fashionable trends of thoughts and ideas” control the academy with an iron grip. It takes a strong commitment to the rule of law for judges to resist that temptation. Increasingly, elite judges succumb to it.

As evidence, I offer the remarkable flouting of the plain language of Title VII[2] in a decision handed down last month, Hively v. Ivy Tech Community College. In an en banc decision by the normally sensible Seventh Circuit, the majority (joined by eminent Reagan appointees such as Kenneth Ripple, Joel Flaum, Richard Posner and, most-notably, Federalist Society mainstay Frank Easterbrook) brazenly misread the word “sex” to include “sexual orientation.” This constitutes a shocking display of judicial defiance, reminiscent of the scofflaw Ninth Circuit—simply refusing to enforce the law as written. When even ostensibly conservative judges feel free to legislate from the bench, the Rubicon has been crossed.

Hively was an employment discrimination case, brought under Title VII of the Civil Rights Act of 1964 by Kimberly Hively, an openly lesbian part-time instructor at a community college in Indiana. Hively alleged that she was denied a full-time faculty position due to her sexual orientation. Because Title VII does not forbid employment discrimination on the basis of sexual orientation, Hively’s lawsuit was dismissed, consistent with well-established circuit precedent. Hively, now represented by the Lambda Legal Defense and Education Fund, appealed to the Seventh Circuit. Initially, a three-judge panel (correctly) affirmed the dismissal in a 2016 opinion written by Judge Ilana Rovner, joined by Judges Kenneth Ripple and William Bauer.[3] The court reasoned, quite logically, that the statute proscribes discrimination based on enumerated protected characteristics—“race, color, religion, sex, or national origin”—but does not include “sexual orientation.” Absent a statutory prohibition, employers are free to hire and fire whom they choose.

Unfortunately, despite the statutory clarity of Title VII, a decision that should have been two paragraphs long went on for a full 20 pages, discussing the perceived unfairness of the result, which it termed a “paradox.” Clearly, the panel didn’t like the fact that Title VII doesn’t cover sexual orientation. In the elite culture, limiting the protection of Title VII to sex discrimination is considered gauche. Judge Rovner’s opinion contrasted Congress’s exclusion of sexual orientation from Title VII with the Supreme Court’s more enlightened recognition of a constitutional right to same-sex marriage in Obergefell v. Hodges (2015):

The cases . . . create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.

After extended lamentation, the panel reluctantly concluded that its hands were tied, legally speaking. Not to worry, though—inventive judges are more adept at escaping from restraints than Houdini was. Hively duly sought and obtained a rehearing en banc.

Hence the Seventh Circuit’s decision of April 4, which reversed the panel. The full court, by a vote of 8 to 3, concluded that the word “sex” should be interpreted to include “sexual orientation.” The majority opinion was written by Chief Judge Diane Wood, a highly regarded Clinton appointee who was reportedly considered for Supreme Court vacancies during the Obama administration. The en banc majority (including Judges Rovner and Ripple, who apparently changed their minds!) reasoned that “sex” and “sexual orientation” mean the same thing. The majority was not deterred by the fact that Congress has repeatedly rejected proposed legislation that would have extended Title VII to include sexual orientation (as pointed out in footnote 2 of the panel opinion). And the majority further sidestepped the fact that, since 1964, Congress has sometimes enacted laws prohibiting discrimination based on sex and sexual orientation, as separate categories.

As George Orwell observed, “There are some ideas so absurd that only an intellectual could believe them,” and the en banc opinion in Hively is living proof. Denying that it was amending Title VII through judicial legislation (which it modestly acknowledged was “beyond our power”), the en banc majority “interpreted” the unambiguous word “sex” to include “sexual orientation” as a “subset,” with the cryptic comment that “The goalposts have been moving over the years.” (Whatever that means.) Using abstruse arguments based on “gender nonconformity” and “associational theory,” and distorting a straightforward matter of statutory interpretation with inapplicable equal protection and “fundamental rights” precedents, the en banc majority reached a conclusion that was squarely at odds with the plain meaning of the statute and the clear intent of Congress.

Judge Posner, once considered the most respected appellate judge not serving on the Supreme Court, wrote a separate concurring opinion candidly conceding that extending Title VII to cover sexual orientation is a judicial invention, but justifying the invention on the grounds that “times have changed.” According to Posner, the mere passage of time has changed the meaning of the word “sex”:

“Sex” in 1964 meant gender, not sexual orientation. What the framers and ratifiers understandably didn’t understand was how attitudes toward homosexuals would change in the following half century. They shouldn’t be blamed for that failure of foresight. We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.

Libertarian law professor Josh Blackman harshly criticized Posner’s opinion, accusing him of “taking advantage” of life tenure. George Mason University law professor David Bernstein adds that “Posner really doesn’t seem to believe that judges should be bound by legal texts, whether statutory or constitutional, because wise judges like himself, up-to-date on contemporary mores and unbound by crass political considerations, can govern better than those who wrote the texts.” Sadly, the only thing that distinguishes Posner from many other federal judges is his honesty.

Judge Diane Sykes (who was on the list from which Justice Gorsuch was elevated to the  Supreme Court) wrote a persuasive dissent, which was joined by two other judges: Bauer, from the original panel, and Michael Kanne, a Reagan appointee. I will not attempt to summarize Sykes’s dissent, other than to say that she makes all the legal arguments one would expect a principled originalist judge to make. (It is worth reading.) Refreshingly, Sykes resisted the temptation to parrot the elite’s fashionable attitudes about discrimination on the basis of sexual orientation, deferring instead to the actual language of the statute. I predict that the Supreme Court will grant cert in Hively and reverse it.

Two things are troubling about Hively.

First, the nonchalance with which “mainstream” judges (that is, not committed ideologues of the Ninth Circuit sort) rewrote an unambiguous statute, creating a sweeping new cause of action, on grounds that most non-academics would find sophistic, is a disconcerting sign that the discipline of the judicial role has greatly weakened.

Second, and even more worrisome, is that respected conservative judges who have long been regarded as sound originalists, such as Frank Easterbrook, would join Judge Wood’s activist opinion.

My ultimate concern is not with activist judges, but with the larger legal culture (shaped significantly by the legal academy), whose attitudes greatly influence judicial decisions. When the legal professoriate becomes estranged from—and disdainful of—the American public, judges will often follow elite groupthink rather than the law. Decades ago, the late Robert Bork predicted that “The ideas that win hegemony” in the law schools and the law reviews “will govern the profession, including judges, for at least a generation and perhaps more.” It turns out that Bork was prophetic.

[1] United States v. Virginia, 518 U.S. 515, 567 (1996).

[2] 42 U.S.C. section 2000e-2(a).

[3] 830 F.3d 698 (7th Cir. 2016).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 10, 2017 at 08:49:01 am

At the time the Act was passed the classes of "gender" were based only on attributes that a reasonable person could identify as "male", "female", etc. on first impression. In other words, those that would appear in a photograph. "Orientation" is subjective, and subject to change from one day to the next. The law cannot rely on things like "self-identification". It has to be identification by others, based on what they can see.

There may be a place in the law to protect persons based on self-identification of their gender, but this law doesn't do that.

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Jon Roland
on May 10, 2017 at 09:42:30 am

The law cannot rely on things like “self-identification”. It has to be identification by others, based on what they can see.

This legal standard might do much to alter Free Exercise jurisprudence. You say you can't work past sundown on Fridays 'cuz you're Jewish? You don't look Jewy to me. So pull it out and let's have a look.

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nobody.really
on May 10, 2017 at 10:23:00 am

The Act has nothing to do with holiday exemptions. Those are at the discretion of an employer.

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Jon Roland
on May 10, 2017 at 10:33:44 am

Tell me about it. But Hively is small potatoes. In that case the elitists merely misconstrued a statute. What about when they deface the Constitution? For example, consider this text:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The elitist majority deigned to inform us plebeians—as well as the nation’s democratically-elected legislatures—that this language actually means something different than had been understood for the prior two centuries. With the benefit of their unique, all-knowing perspective, the majority twisted this language to mean that government is barred from limiting an individual’s capacity to secure weapons—expect for precisely those weapons that would be most relevant to a well-regulated militia or securing a free state. As George Orwell observed, “There are some ideas so absurd that only an intellectual could believe them,” and the majority opinion in District of Columbia v. Heller is living proof.

Justice John Paul Stevens (who was not merely on a list of judges who might be elevated to the Supreme Court, but was actually elevated to the Supreme Court) wrote a persuasive dissent, which was joined by not by two other judges, but by three other justices. I will not attempt to summarize Stevens’s dissent, other than to say that he makes all the legal arguments one would expect of a native speaker of English. (It is worth reading.) Refreshingly, Stevens resisted the temptation to parrot the elite’s fashionable attitudes about autonomy uber alles, deferring instead to the actual language of the Constitution. I predict that the Supreme Court will reverse it--eventually.

In the meantime, can nothing be done to stop the tyranny of elitism—that is, circumstances when people disagree with me, and I can’t simply dismiss them as being dumb?

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nobody.really
on May 10, 2017 at 10:48:51 am

I have been trying for most of my life to resist what I consider the pathological culture of most lawyers and judges on many issues. It is a culture that sustains massive corruption that infects every part of life. See my website for a record of those efforts.

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Jon Roland
on May 11, 2017 at 09:18:39 am

Nobody:

expect for precisely those weapons that would be most relevant to a well-regulated militia or securing a free state. "

Yep, I guess that means that we and my buddies CAN own a cannon, as back in the day, the local yokels pooled their resources and procured (in some cases actaully made) cannons for the defense of a free state.

Yep, some notions are just nothing more thasn the rantings of those who seek to be identified as "intellectually fashionable."

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gabe
on May 11, 2017 at 09:21:56 am

Mark:

Great piece.

It is absotively true that the intellectual class behaves more like high school girls desirous of being invited to the prom; "well, LIKE, I mean EVERYBODY is doing this"

We have a judiciary and an academy presently populated by "Sheeples"!
Regrettably, they are CLEVER little sheeples.

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gabe
on May 11, 2017 at 09:54:29 am

Militia weapons have included not only cannons but warships.

The only regulation allowed for militia weapons would be by elected militia commanders, and for the particular mission that day.

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Jon Roland
on May 11, 2017 at 09:58:07 am

The problem starts in elementary school. One can see how indoctrination begins early, and the teachers and college instructors are the first indoctrinators. That continues into the law schools where lawyers come to expect progressives to be the generators of the most fees and cases.

Well, "everyone" is not doing it. The time is turning, one mind at a time.

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Jon Roland
on May 11, 2017 at 14:12:20 pm

"The elitist majority deigned to inform us plebeians—as well as the nation’s democratically-elected legislatures—that this language actually means something different than had been understood for the prior two centuries. "

So much of your commentary reminds me of a quip by Neils Bohr in reply to some academic:

"Your problem, Sir, is that you are being logical; You are NOT thinking."

As always, and as with logic, it is the "premise" that leads us astray.

Also, I would add that Pulliam makes no claim that others are dumb - just fashionably leftist.

It is reserved for the Left to hurl allegations of stupidity - or so THEY would have us believe!

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gabe
on May 11, 2017 at 14:39:25 pm

“Your problem, Sir, is that you are being logical; You are NOT thinking.”

"The madman is not the man who has lost his reason. The madman is the man who has lost everything except his reason." G.K. Chesterton, Orthodoxy.

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nobody.really
on May 11, 2017 at 14:44:52 pm

Ahh!

But I was referring to REASON (Logic) - not reason (thinking).

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gabe
on May 11, 2017 at 15:07:47 pm

The "progressives" that are the opposition here seldom if ever offer either logic or reason, just rants. They try to stand on being generally better educated (and perhaps more talented), and anoint themselves the protectors of the downtrodden (who they are the only ones qualified to identify). The noblesse oblige attitude is a perennial source of mischief.

I have seen the problem since college. The "elite" are guilty about being more gifted than others, although they are not that much more gifted than others, nor does talent always come with good judgment.

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Jon Roland
on May 12, 2017 at 08:06:37 am

Thanks, Gabe. Sometimes they are too clever for their own good!

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Image of Mark Pulliam
Mark Pulliam
on May 12, 2017 at 08:31:12 am

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Trackbacks
on April 10, 2020 at 08:32:56 am

[…] In a manner similar to a public relations brief for the trial bar, Litigation Nation air-brushes out all the defects of the civil justice system, depicting only what he wants the reader to regard as benefits: progress, fairness, and safety. The book is silent about massive inefficiency, product liability abuse, asbestos litigation fraud, recruiting phony plaintiffs in securities class actions, patent trolls, and the impact of frivolous malpractice litigation on the medical profession. Are Americans better off than their counterparts in, say, the United Kingdom, by virtue of their greater degree of litigiousness?  Establishing such a conclusion would be necessary to prove Hoffer’s case, but he never even tries. Hoffer presents the results of cases as an unalloyed good. He simply assumes that society is better off with judicially-contrived claims for sexual harassment, strict liability for product defects, recognition of same-sex marriage, and similar inventions. […]

on April 15, 2020 at 08:55:51 am

[…] In a manner similar to a public relations brief for the trial bar, Litigation Nation air-brushes out all the defects of the civil justice system, depicting only what he wants the reader to regard as benefits: progress, fairness, and safety. The book is silent about massive inefficiency, product liability abuse, asbestos litigation fraud, recruiting phony plaintiffs in securities class actions, patent trolls, and the impact of frivolous malpractice litigation on the medical profession. Are Americans better off than their counterparts in, say, the United Kingdom, by virtue of their greater degree of litigiousness?  Establishing such a conclusion would be necessary to prove Hoffer’s case, but he never even tries. Hoffer presents the results of cases as an unalloyed good. He simply assumes that society is better off with judicially contrived claims for sexual harassment, strict liability for product defects, judicial recognition of same-sex marriage, and similar inventions. […]

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