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Titus: Judge Posner’s Emporium
April 18, 2017

By: Herbert W. Titus ©

Three days after April Fool’s Day, 2017, the United States Court of Appeals for the Seventh Circuit – with all judges sitting en banc – reversed itself, holding that discrimination on the basis of “sex,” as forbidden by Title VII of the 1964 Civil Rights Act, now included discrimination on the basis of “sexual orientation.”

As notable as the majority opinion is -- in that it undermines the very principles upon which the American people claim to be ruled by law, not governed by the political beliefs and personal values of life tenured, unelected judges – the concurring opinion of Judge Richard Posner (a Reagan appointee) is an arrogant manifesto of judicial activism, the illegitimacy of which must be vigorously exposed.

Dissenting Circuit Judge Diane Sykes – one of the judges on President Trumps’ short-list for promotion to the Supreme Court – had this to say about the majority’s “momentous” decision:

The question before the en banc court is one of statutory 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.... Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

Even while regaling his colleagues in the majority for their lavish display of raw judicial prowess, Judge Posner thought it would have behooved the Court to have been more “straightforward,” in its explication of the “interpretive” method used by the majority to reach its predetermined result. And, indeed he did -- proclaiming “at the outset that the interpretation of statutes comes in three flavors : (i) “conventional,” (ii) “spirit[ual]”, and (iii) “fresh.” Like vanilla, strawberry, and chocolate, statutory interpretation becomes just a matter of personal “taste.”

Take good old “conventional” – the vanilla of the three. Described by such familiar words – “original,” “ordinary,” and “straightforward” – Posner found this interpretive method to be easy to apply. Any ordinary judge can do it. Familiarity with English and an orderly set of facts is all that is required. But oh how mundane.

Then there is the “spirit of the law” our strawberry, where the language is easy enough to understand in the abstract, but impossible to apply literally because of an unusual set of facts that could not have been anticipated by the legislature, and that if applied literally, in disregard for the

“spirit”of the law, would lead to an absurd result.

O but the temptation of the “fresh” option – rich chocolate – full and vibrant – “a meaning ... with vitality and significance today” – changing with changing times – “making old law satisfy modern needs and understandings.”

To capture this last interpretive method, Judge Posner creates his own “personal branding” --“Judicial Interpretive Updating” – thus far an interpretive school of one.

Statutes then in the hands of a master judge are like Neopolitan ice cream – any choice or combination of flavors are possible – its just a matter of judicial taste. As Posner puts it: “We

should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-65), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.” As Oliver Wendell Holmes, Jr. “so eloquently” explained,” judges give “new meaning” to “old statutes” in light of what “this country has become.”

This evolutionary drivel is no less than a defiant Judicial Declaration of Independence from the laws and constitution of the United States. Posner needs no Geoge III against whom to rebel, when a long dead Congress will do.

Oh. Not to worry. Such changes will not overcome us. Instead, Judge Posner assures that “it takes years, often many years, for a shift in the political and cultural environment to change the meaning of the statute.” And Judge Posner – the Lord High Chancellor – will know just when we have evolved up to the next level.

Were Judge Posner as disciplined and reticent to apply his updating interpretive standard as he claims to be, there would be some who would eagerly accept his invitation. But, already, Posner has suggested that “sex” is broad enough for the 1964 law to reach discrimination against “transgender persons.” After all, Posner observes, transgenderism is now “common.” Has gender identity played itself out in the national psyche long enough to warrant special protection? Who knows? Given Posner’s prolixity of mind and pen, don’t bet on it.

Not content to modernize only statutes, but Posner plays fast and loose with judicial precedent, all of which is designed to flavor judges with increased interpretive discretion, not to constrain, but to empower.

Take Blackstone for instance. To give his concurring view on interpretive discretion an air of credibility, Posner draws on Blackstone’s treatment of a statute which “stated that whoever drew blood in the streets should be punished with the utmost severity” should not be construed to apply to a surgeon “who opened the vein of a person who fell down in the street with a fit.” It is true, as Posner contends, that Blackstone advocated that, given the spirit and reason for the law, the statute should not be construed to apply to the surgeon. Thus, Posner acknowledges that

Blackstone made it clear that the interpretive rule was confined to those statutes “where words bear either none, or very absurd signification, if literally understood,” and even then “we must a little deviate from the received sense of them.”

However, later in that same opinion, Posner kidnaps Blackstone twice to support his view of Judicial Interpretive Updating. In support of the “rewriting of Title VII,” Posner claims the en banc majority “are [just] Blackstone’s heirs.” Indeed, according to Posner, it was “Blackstonian terminology” that made it possible for the majority to equate “sex” and “sexual orientation” to be nothing more than “a sensible deviation from the literal meaning of the statutory language.”

Both of these legitimacy claims on the Blackstone legacy are Pharisaical, which Posner must know is utterly incompatible with the English jurist’s Genesis foundation for the common law as being the law of the Creator, not the invention of judges. Thus, Blackstone believed that judges do not make law, they only discover and state it. Hence, as Blackstone put it, a judicial opinion is not law, it is only evidence of law, and if a judicial opinion is contrary to the “laws of nature and of nature’s God,” the opinion is not bad law – it is not law at all.

Posner not only gratuitously misrepresents Blacksone, he also can’t resist attacking his recently deceased arch-nemesis, Justice Antonin Scalia and his “decisive fifth vote to hold that burning of the American flag as a political protest ... protected by the free speech clause of the First Amendment....” Belittling Scalia’s judicial philosophy of “originalism,” Posner chides Scalia’s vote as one dictated not by the original free speech text, but by “present need and understanding.”

What can his message be but this – “We are all judicial updaters now.” But Posner overlooks one salient fact – Scalia was not always an originalist, and the flag burning case is evidence of that. For example, although Scalia did indeed carefully parse the text of the Second Amendment (to Posner’s dislike), he never reconsidered the Supreme Court’s First Amendment precedents in light of the text -- as he recently did in 2012 with respect to the Fourth Amendment decisions that had been anchored to modern notions of privacy, and divorced from the historic protection of private property in “persons, houses, papers and effects.”

Now that Posner has put into play his personal preference for judicial interpretive updating, there is no telling where his fertile mind will take the Seventh Circuit. Given his progressive, atheistic, neo-Darwinian world view of law, there is one thing of which we can be sure – he will follow in the footsteps of his idol, Oliver Wendell Holmes, Jr., who revolutionized the common law – not in the footsteps of Sir William Blackstone who expounded it.

Under Article III, Section 1 of the United States Constitution, federal judges are duty bound to “hold their office during good behavior.” As Raoul Berger observed, “good behavior” was a common law term” meaning “plain common sense.” According to Posner’s intrepretive rule, the common sense meaning of a word in either a statute or a constitutional provision, if outdated in the eyes of a judge, must be changed. This is judicial misbehavior. And as Berger observed, “the Framers self-evidently did not intend that a judge who behaved badly and thus violated the condition of his tenure should continue in office.”