The post-constitutional world of Judge Richard Posner

In Hively v. Ivy Tech Community College, the 7th Circuit Court of Appeals, sitting en banc, held that Title VII's prohibition of discrimination based on sex should be interpreted to include a prohibition of discrimination based on sexual orientation. The court essentially argued that if you treat someone differently because she is a woman who has romantic relationships with women, as opposed to a man who has romantic relationships with women, that is literally discrimination based on sex. This is true, the court, adds, even if Congress didn't recognize this implication of banning discrimination based on sex in 1964.

For a variety of reasons, which perhaps I'll go into in a separate post, I find the court's reasoning dubious. But not, however, as dubious as the concurring opinion of the infamously idiosyncratic Judge Richard Posner. Josh Blackman dissects Posner's opinion very effectively and in great detail; I highly recommend his post to those who are interested. For our purposes, however, it's enough to focus on this key language:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of "sex discrimination" that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963- 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught. (emphasis supplied)

As Blackman notes, Posner's theory of interpretation goes well beyond even that of Judge Guido Calabresi, who famously argued that some (but not all) statutes are written to delegate to the courts the authority to update them via common-law reasoning. Even if one accepts Calabresi's theory, there is no reason to think that Title VII, a product of negotiation and careful compromise—such as requiring potential private litigants to get a go-ahead from the Equal Employment Opportunity Commission before they could sue under the statute—is one of these statutes.

Posner's theory of statutory interpretation, then, is really a theory of judicial usurpation of Congress's Article I powers. Article I, let's recall, states that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." So yes, as a rule the "entire burden" of updating old statutes is indeed on the legislative branch. Congress has consistently declined the opportunity to add sexual orientation to the list of protected classes under Title VII, and judges have no authority to exercise legislative authority in Congress's place.

Readers may remember that Posner attracted a great deal of criticism last year for suggesting that modern constitutional law is so unmoored from the actual Constitution, and necessarily so given how old the Constitution is, that there is "no value" in judges "studying the Constitution, the history of its enactment, its amendments, and its implementation." Posner later apologized for apparently "suggesting that constitutional law is and must and maybe should be entirely a judicial creation."

But who is kidding whom at this point? 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. He may be right, but our Constitution, which he sworn to uphold, simply doesn't give him the authority to do so.