A Primer On Proper and Improper Judicial Reasoning

Kimberly Hively was canned from her adjunct professer job at Ivy Tech College. She’s openly lesbian and figures that’s why she was fired. She filed a lawsuit under the Civil Rights Act of 1964 in hopes of getting her job back, with back pay. Maybe even some puntive damages. You can get that in civil rights cases. Attorneys fee too. Or so she thought. But a trial court pointed out that while the Civil Rights Act does offer a remedy for discrimination on the basis of sex, the courts have long held that since it doesn’t say anything about sexual orientation, which is a trait distinct from one’s sex as either a man or a woman, the statute doesn’t cover it.

But never fear Kimberly, some activst judges are here to help. The case is Kimberly Hively v. Ivy Tech College of Indiana, U.S. Court of Appeals, 7th Circuit, April 4, 2017.

Chief Judge Diane Wood delivered the majority opinion, and opened with this:

WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discrim- inate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.

Do you see what they just did? The statute doesn’t cover the particular facts of your case, but that’s OK, we’ll fix it for you Kimberly. We won’t let the mere words of the statute deter us, and we won’t let a few decades of stare decisis get in our way either. We are Judges and we don’t intend to be the lackies of legislators. If they won’t act, we will!

Judge Richard Poser agrees wholeheartedly, but he’s much more honest about what he’s doing:

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burn- ing the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.

Or consider the Supreme Court’s holding that the Fourth Amendment requires the issuance of a warrant as a precon- dition to searching a person’s home or arresting him there. E.g., Johnson v. United States, 333 U.S. 10, 13–14 (1948). There is nothing in the amendment about requiring a warrant ever. All that the amendment says about warrants is that general warrants, and warrants that are vague or issued without probable cause, are invalid. In effect the Supreme Court re- wrote the Fourth Amendment, just as it rewrote the First Amendment in the flag-burning cases, and just as it rewrote the Sherman Act, and just as today we are rewriting Title VII. We are Blackstone’s heirs.

Umm,  excuse me Judge, that’s all a lot of…Well, one need not be a “diehard” originalist to believe himself bound by the actual words Congress used in the statute. Any old ordinary originalist would think so. Scalia didn’t have to re-write the law to decide the flag burning case. Speech and non-verbal conduct clearly meant as communication are not distinctly separate things. Requiring a warrant for a search is not too much of a stretch because the 4th Amendment speaks to warrants and says they require a showing of probable cause. It would seem odd that the language of the 4th Amendment could be understood as not requiring a warrant for a search. The stretch of the 4th Amendment that has occurred is to be found in all the exceptions to the warrant requirement that courts have labored to create and justify. Finally, to say that the 2nd Amendment originally did not protect an individual right to keep and bear arms is ridiculous.  Just one reason among many is that the words “of the people” that are contained in the 2nd Amendment clearly refers to the rights of individuals, just as it does in the 1st, 4th, 9th and 10th Amendments.

But thank you Judge Posner, for your honesty. Thank you for admitting that you and your colleagues chose to rewrite the Civil Rights Act of 1964 in order to reach the result you wanted.

Now comes the wisdom of a good judge:

Judge Diane Sykes in Dissent:

SYKES, Circuit Judge, with whom BAUER and KANNE, Circuit Judges, join, dissenting. Any case heard by the full court is important. This one is momentous. All the more reason to pay careful attention to the limits on the court’s role. The question before the en banc court is one of statuto- ry interpretation. The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative pro- cess by which the people govern themselves.

Respect for the constraints imposed on the judiciary by a system of written law must begin with fidelity to the tradi- tional first principle of statutory interpretation: When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.

Read the whole thing, particularly Judge Sykes’ Dissent. It’s a primer on what is the proper judicial function in a free society. Judge Sykes, by the way, is on Trump’s list of 20 judges he’d consider for the Supreme Court. Imagine if she replaced Ruth Bader Ginsburg.

From Differing Views on the Role of the Judge, by John M. Walker Jr:

Justice Oliver Wendell Holmes emphasized rule of law values and the attendant need for objective standards in statutory interpretation. In Holmes’s view, a government of laws, not men, demanded standards external to judges. These were to be found in the plain meaning of the words actually enacted. “[W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”


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