Our black-robed supreme legislature strikes again

Summary: The Supreme Court takes another step to becoming the supreme legislature of America, ruling based on their personal views. As more Americans see this, another prop under the Republic washes away.

Again we are ruled by black-robed priests (now called Judges),
making stuff up based on their incomprehensible books.

Black robed priest - AdobeStock - 256071432
Black-robed priest – By Nomad Soul. AdobeStock – 256071432.

This month we have more evidence that the Constitution is dead. Americans want what they want, and interpret the Constitution accordingly – so that it has no fixed meaning. Our tribes cheer at rulings that grant their wishes, and boo the baddies that thwart their goals. The process of constitutional law is irrelevant so long as the “right” decision is reached.

The Supreme Court is an exemplar of this, as they become lifetime priests in black robes – unaccountable, unelected, incontestable legislatures. Each new ruling stripes away a little more of the Constitution’s legitimacy. We have been repeatedly warned, but do not listen. As in this dissent from the Supreme Court’s ruling in Bostock vs. Clayton County, their latest edict restructuring American society.

Excerpt from the dissent by Justice Alito,
joined by Justice Thomas.

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses.

Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, but the bill has stalled in the Senate. …

Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” …If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation – not to mention gender identity, a concept that was essentially unknown at the time. …

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not. …

The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means. The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law. Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of …sex” unambiguously means. See Part III–C, infra. …

Implications ignored

What the Court has done today – interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity – is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C. The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside.

As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s. The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded – and perhaps effectively ended – any chance of a bargained legislative resolution.

Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty. …

Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.


The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is. The Court itself recognizes this.

“The place to make new legislation …lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.”

It is easy to utter such words. If only the Court would live by them.


Of course judges will not live by them. Left or Right, many (a number increasing every year) of our Judges are drunk with their power. They rule as philosopher-kings, shaping America according to their personal beliefs about the Good and Wise.

The opinion itself is a mind-blowing 172 pages of word salad. Future generations might mock this much as medieval scholasticism was mocked by later generations (“how many angels can dance on a pin” mocking Thomas Aquinas’s Summa Theologica) or modern China mocked the decadent work of the late Chinese mandarin class. Our shallow Robed Rulers have no idea about the wider results of their tinkering with core elements of American society (e.g., even a bien-pensant Leftist worries).

The Court appears blind to the almost certain results of their actions in this ruling. Not just upsetting a vast body of rulings and laws, but also further destabilizing our tottering Second Republic (built on the Constitution). As judges become supreme legislatures, selecting these priest-kings becomes a no-limit fight – as the Democrats have already realized (but the Republicans, stupid as usual, have been slow to see this). These fights will increase in ferocity, becoming dirtier and more vicious over time. They are as or more important than elections.

Even worse, this shows people that our democratic machinery is becoming a sham – and that elections matter less than the whims of high officials. This is one of the great insights that will lead to the fall of the Republic and the rise of a new regime. Just as happened to the Roman Republic over two thousand years ago,.


I will send a copy of Rome’s Last Citizen (see below) to those who post the best comments to this series of posts. I have ten copies. Only one book per winner. Decisions are purely subjective by the judges, based on the originality and quality of insights, plus supporting facts and analysis, of the comment.

For More Information

Ideas! See my recommended books and films at Amazon. For something different, see “The Swallow – a story of the WWII Night Witches.”

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Court, about Reforming America: Steps to New Politics, and especially these…

  1. The age of revolution has begun in America.
  2. Another American judge weakens the Republic’s foundation.
  3. Should we thank the Court as it rescues us from our bad laws? Or just bow?
  4. The Court overturns two laws passed by Congress. Everybody cheers!
  5. The Left will rue the day they cheered an activist Court.
  6. The Kavanaugh hearings show our broken Court.
  7. The Kavanaugh hearings’ warning: the Court is so powerful that extreme measures are appropriate to take control of it.
  8. The Kavanaugh hearings: lawfare used against us.
The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution
Available at Amazon.

Another warning

The Most Dangerous Branch:
Inside the Supreme Court’s Assault on the Constitution
By David Kaplan (2018).

A good liberal, Kaplan became upset about the Court’s power only when the Right took control of it. But his supporting evidence and logic are sound, despite his partisanship. From the publisher …

“With the retirement of Justice Anthony Kennedy, the Court has never before been more central in American life. It is the nine justices who too often now decide the controversial issues of our time – from abortion and same-sex marriage, to gun control, campaign finance and voting rights. The Court is so crucial that many voters in 2016 made their choice based on whom they thought their presidential candidate would name to the Court. Donald Trump picked Neil Gorsuch – the key decision of his new administration. The next justice – replacing Anthony Kennedy – will be even more important, holding the swing vote over so much social policy. Is that really how democracy is supposed to work?

“Based on exclusive interviews with the justices and dozens of their law clerks, Kaplan provides fresh details about life behind the scenes at the Court – Clarence Thomas’s simmering rage, Antonin Scalia’s death, Ruth Bader Ginsburg’s celebrity, Breyer Bingo, the petty feuding between Gorsuch and the chief justice, and what John Roberts thinks of his critics.

“Kaplan presents a sweeping narrative of the justices’ aggrandizement of power over the decades – from Roe v. Wade to Bush v. Gore to Citizens United, to rulings during the 2017-18 term. But the arrogance of the Court isn’t partisan: Conservative and liberal justices alike are guilty of overreach. Challenging conventional wisdom about the Court’s transcendent power, The Most Dangerous Branch is sure to rile both sides of the political aisle.”

15 thoughts on “Our black-robed supreme legislature strikes again”

  1. John F Pittman

    Larry, you bring up what I consider the most damaging rot to the Republic: words don’t have meaning, but mean what we want them to mean. This is just chaos in a system. Apparently the Supremes have forgotten that our science, law, civility, and social cohesion depend on agreement of words. Although words can and do convey emotion, their true force in society is to convey truth and facts. Though the claim will be that this is just differentiation, the dissenting justices have pointed out it is simply untrue, This is a real problem for the courts: they will be viewed as purveyors of phantasms, not core truths.

    The process of constitutional law was meant to provide consistency and hold the other branches accountable in word and deed. This use of definitions and law, whether the founding fathers meant it or not, is what has made the courts the third branch. Worse, in my opinion is not the turmoil, but as you have stated “show(ing) people that our democratic machinery is becoming a sham.” It is also showing the people that phantasms are more important that the core beliefs that hold our nation together. They have little or no excuse since the dissenting judges make manifest the problem.

    For consideration: was the secret ballot (1884) indicative of our refusal as crew members to “pledge to each other our Lives, our Fortunes and our sacred Honor.” Yes, there are good reasons to have a secret ballot. However, imagine if we had public voting with today’s “woke.” IMO there is a severe lack of maturity in most moralizers. To me, this highlights a thought: We, in our pursuit to avoid painful disagreement and discussion, have helped sow the seeds of rot.

  2. How is this decision any different from any other controversial judgement made by the Supreme Court?
    As Justice Evans Hughes famously said: ‘The Constitution is what the Judges say it is.’
    That view has not been rejected during the century plus period since he voiced it.
    Moreover, it is disingenuous to argue that ‘sex’ was so narrowly conceived, given the subsequent court rulings about workplace discrimination based on sexual preference were explicitly based on the same equal rights clause.
    I have no argument with your underlying complaint, but this decision seems to me more a natural evolution rather than an innovative departure.

    1. Etudiant,

      “Moreover, it is disingenuous to argue that ‘sex’ was so narrowly conceived, given the subsequent court rulings about workplace discrimination based on sexual preference were explicitly based on the same equal rights clause.”

      The details of the issue weren’t relevant to this point. However, the opinion cited spends several thousand words trashing that belief.

      “How is this decision any different from any other controversial judgement made by the Supreme Court?”

      I assume you are kidding. Most controversial decisions before the Warren Court turned on interpreting and balancing reasonable – and often clashing – themes in the Constitution.

      The Warren Court began the new era of legislating from the bench (it was rare before). Over the years the frequency and magnitudes of their new laws have increased.

      History is made up mostly of such changes in magnitude and frequency. People are surprised by events largely because they ignore such changes, denying that anything is happening.

    2. Do you realize that you can trace much of our current problems with the police back to Pierson v. Ray, which invented the ‘right’ of qualified immunity? Who knows what horrendous consequences this decision will have?

      1. Randolarian,

        “Do you realize that you can trace much of our current problems with the police back to Pierson v. Ray”

        One reason modern public policy produces so many bad outcomes is the belief in single causes. We change one key factor in a system, and then watch in astonishment at the many unintended side-effects.

        The Floyd incident, excessive force used on a career criminal with a history of violence, shows why police pushed for qualified immunity: the district attorney is behind in the polls for re-election, so panders to the mob by grossly overcharging the police. Headlines! He’s a hero.

        Urban police have fairly high job requirements, high rates of death and injury, high rates of suicide, and low public respect in the high crime areas they defend. And blue collar wages (lower than in most suburban PDs, that are nicer to work in).

        Many in these communities feel more esteem for the criminals who prey upon them than the police.

        As economists say, solve for the equilibrium that fills the ranks of the police.

        Now change the job: more restrictions on their actions in hazardous situations, more & complex regulations (to be used in complex fast situations on the street), fewer legal protection, more hatred by the public. Solve for the new equilibrium.

        Few of the people designing our new police regime have any experience – not even in ride alongside. Most would never take the job, and many probably wouldn’t last a month on it.

        The likely results are already appearing. Early retirement skyrocketing – experienced people, essential knowledge.

        I’ll bet we will see recruiting fall off (it’s not a rational job choice for someone with options). And officers with options leaving – senior ones going to think-tanks, corporate security, academia, etc. Line people to private security, a growing business as rich people and businesses realize police protection can’t be assumed.

        There are alternative, seldom mention. Such as expecting more from police – and so paying them more. But the current mob emotionalism makes rational discussion impossible.

  3. I don’t disagree with your concern, but I think the root cause for the legislation from the bench is the inability of congress to get beyond dysfunction and deadlock to do their job. If legislation needs to change as times change, it is their job to do that. Much legislation is also poorly crafted and vague almost intentionally it seems. Granted, the courts should more often send plaintiffs to the legislature for resolution, but there is a power vacuum that they end up filling.

    Congress has succumbed to the desire to stay in office, and avoid rocking the boat as individuals at any cost. In similar fashion to how citizens have neglected our role as active participants in self government ( as you have tried to point out lo these many years), I think congress critters avoid contentious issues and are happy to let the third branch take the heat.

    1. Steve,

      “I think congress critters avoid contentious issues and are happy to let the third branch take the heat.”

      Pretty much everybody else does their job as their bosses desire – and little beyond. But we expect our representatives to be Philosopher Kings, nobly acting beyond what we do. And of course we despise and mock them.

      And for pay far less than what such people could get in the private sector (and one who thinks it is easy to become elected official should run for office).

      How odd that we don’t get the elected officials that people of our awesomeness deserve!

    2. John F Pittman

      Steve C:”I don’t disagree with your concern, but I think the root cause for the legislation from the bench is the inability of congress to get beyond dysfunction and deadlock to do their job.”

      Two of the three branches are not doing their constitutional job. It would be unusually for the third to do theirs. A triad is typically unstable since it is the easiest to combine and conquer the third.

      In the race to the bottom, I nominate the press. They too have forsaken their role of stopping this tendency in triads.

      The root cause, IMO, is our citizens.

      1. Yes. But the question is, what has made them as they are? Answer that, and you know what has to be changed.

        I am reading ‘The Big Sort’ now, by Bill Bishop. The encouraging thing is that there are people doing proper quantitative analysis of what exactly has happened. It is possible to figure out what and why, and it will be possible to devise means which will change it.

      2. John F Pittman

        The biggest cause I see is as Nietzsche foresaw: God is dead. Not just religion, but honor, loyalty, etc. All these have a price to obtain, maintain, and develop. This does not appeal to amoral seekers of immediate pleasure and avoidance of commitment. It is a broad category with many apparent causes. The root I see is amoral adherence.

      3. John,

        I totally agree. Nietzsche saw, with almost unbelievable prescience, our future. We had the last of the great tribal wars. Now co es the collapse of all values.

        Nietzsche foresaw our condition today, and hoped that from it might come new insights and new beliefs — from which we can build better forms for society. Let’s hope he was right in this, as he was in so many things.

        “The traditions that provided a substitute for nature have crumbled. The soul becomes a stage for a repertory company that changes plays regularly — sometimes a tragedy, sometimes a comedy; one day love, another day politics, and finally religion; now cosmopolitanism, and again rooted loyalty; the city or the country; individualism or community; sentimentality or brutality. And there is neither principle nor will to impose a rank order on all of these. All ages and places, all races and all cultures can play on this stage.

        “Nietzsche believed that the wild costume ball of the passions was both the disadvantage and the advantage of late modernity.“

        — From Allan Bloom’s Closing of the American Mind.

      4. From The Big Sort – very interesting. There was apparently enormous citizen and voter apathy in the fifties of the last century, and it was a topic of widespread concern then. I had not realized the extent of it. In the sixties, that changed, and politics became much more divided and strongly felt.

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