I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts”. That’s my way of talking about the modern judiciary’s habit of inventing new laws or re-interpreting old ones based on their own policy preferences. They show particular hostility to traditional moral values that have been enshrined in law and culture since time immemorial. They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.
We no longer live in a democratic republic with a Constitution. We are now ruled by judges who make up the law as they wish.
In 1820, Thomas Jefferson wrote a letter to a prosperous merchant, in which he discussed his views about the proper role of the judiciary in the American constitutional system. In his letter, Jefferson made a famous observation:
You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.https://founders.archives.gov/documents/Jefferson/98-01-02-1540
In his first inaugural address in 1861, Abraham Lincoln echoed these sentiments, in reference to the Supreme Court’s infamous decision in the Dred Scott case:
… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.https://avalon.law.yale.edu/19th_century/lincoln1.asp
Which brings us to the latest version of judicial usurpation of power. The Supreme Court came down from Mt. Sinai today and decided to re-interpret the 1964 federal law banning discrimination on the basis of sex (Title VII of the Civil Rights Act) to encompass sexual orientation and gender identity.
The details of the alleged legal reasoning by the majority (in an opinion written by Justice Gorsuch) are not particularly interesting. They represent an example of the boundless creativity of wise foolish lawyers who can bend words and concepts to achieve an irrational favored result.
As pointed out by Justice Alito and Justice Kavanagh in separate dissents, until the last few years nobody has ever thought that the words “discriminate because of sex” also include “sexual orientation” or “gender identity”. The first ten Circuit Courts to confront this issue all decided against it unanimously. Congress has repeatedly tried to amend the law to add “sexual orientation” or “gender identity”, showing that they knew that the word “sex” doesn’t include them. States and localities across the nation have specifically added “sexual orientation” or “gender identity” to their anti-discrimination laws, demonstrating the same understanding. Everyone in the world understood – and will continue to understand – that these are separate categories, and that confusing them would be a fundamental logical error.
Which doesn’t stop the Court from making precisely that error. At one point, the Court explicitly said that “We agree that homosexuality and transgender status are distinct concepts from sex”. Yet the Court went ahead and treated them as if they were identical. They must never have heard of the Rule of Contradiction – a statement can’t logically be both true and false at the same time. As Justice Alito phrased it, “Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label.” The Court majority’s implicit response was: “so what, we’re going to do it anyway”.
The incoherence of this decision is particularly highlighted by the fact that nobody can give a clear definition of what is meant by “gender identity”. It is by its very nature a malleable and elusive concept that has no meaning beyond the subjective sentiments of any individual. How can one deal with a law that now bans discrimination based on “sex” when we’re talking about “gender fluid” people, who by definition reject the notion of “sex”, don’t conform to any fixed “gender identity” and may change it from day to day? This fails one of the traditional rules for a valid law – it must be clear, intelligible, and consistent in its meaning.
None of that mattered to the Court. As Justice Alito said, “There is only one word for what the Court has done today: legislation…. A more brazen abuse of our authority to interpret statutes is hard to recall.” To this board of unelected rulers, the legislative process is irrelevant. The Constitution, history, common sense, authentic legal reasoning are all hindrances. Power is all that matters.
Make no mistake about how radical this decision is. The Supreme Court has decided that there is no objective reality. Words no longer have meaning. The unequivocal word “sex” now has no fixed meaning in biology but rather is an entirely subjective notion. It is the ultimate illogical extension of the infamous nonsense of the incoherent Casey decision: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” There are no limits to subjectivity.
This decision will have a far-reaching impact. It instantly redefines hundreds of federal laws and regulations. It is suddenly incorporated in every federal contract and grant program as a condition for participation. It now endangers the religious and free speech rights of millions of people and organizations that hold to the apparently-obsolete notion that sex is a biological reality of male and female. It effectively brands any dissenter as a bigot and outlaw.
Of course, homosexual persons and those with gender identity issues must be treated justly. But the way to do that is a policy decision for the people through their representatives, not for a small group of impatient judges who don’t want to wait for Congress.
And so, we should really stop pretending about being a Constitutional republic. We no longer have a rule of law but a rule by judges. Our courts see no limitations on their authority. We no longer have a rule of reason but a rule of incoherence.
Jefferson’s and Lincoln’s warnings of the despotism of an oligarchy of judges have fully come true.