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.
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.
Conclusion
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.
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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,.
Contest
I will send a copy of Rome’s Last Citizen
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…
- The age of revolution has begun in America.
- Another American judge weakens the Republic’s foundation.
- Should we thank the Court as it rescues us from our bad laws? Or just bow?
- The Court overturns two laws passed by Congress. Everybody cheers!
- The Left will rue the day they cheered an activist Court.
- The Kavanaugh hearings show our broken Court.
- The Kavanaugh hearings’ warning: the Court is so powerful that extreme measures are appropriate to take control of it.
- The Kavanaugh hearings: lawfare used against us.
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.”
