During the AALS annual meeting in January, Judge Posner discussed at some length Hively v. Ivy Tech Community College. This case, which was then pending before the en banc Seventh Circuit, presented the question of whether the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. The AALS’s podcast of the event is online (Posner’s remarks begin around 1:14:00), and you can also read my contemporaneous tweets.

Putting aside my charge that the comments were unethical and inappropriate–Judge Posner responded to me here–with remarkable clarity, his presentation signaled precisely how he would approach the case. In short: “judicial interpretive updating.”

First, Posner said that “courts should simply pick whatever is the most sensible interpretation [of a statute], and forget about [the] intent of Congress.” Second, he noted that the Civil Rights Act of 1964 was passed  “more than a half century ago,” which was during a “totally different era of how we think about sex.” Third, he explained that in light of the fact that “today we have same-sex marriage . . . shouldn’t we bring the Civil Rights Act up to date.” Fourth, he said that if Congress in “1964 had known what was coming in [the next] half century, [including] different attitudes toward sex, [then] discrimination against sex would also include subgroups of gender.” Fifth, Posner said that courts should “interpret statute with how it fits modern needs.” Sixth, he explained, “interpretation, realistically, includes giving meaning to a statute that wasn’t in the meaning of the thoughts who wrote the statute. ” He added for good measure, that courts should “interpret statutes to meet current needs, even if not foreseen by framers. That is in short how I think about statutes.” These remarks offer an almost-verbatim summary of his opinion in Hively. (My transcriptions in the tweets were fairly accurate, though I cleaned them up here).

Rather than interpreting a statute based on the “extraction of [it’s] original meaning” or by “unexpressed intent”–the “conventional” approaches–Posner offers a third way:

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance to- day. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the pre- sent case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning— constitutional provisions even more frequently, because most of them are older than most statutes.

Here, Posner alludes A Common Law for the Age of Statutes, in which now-Judge Gudio Calabresi explained that for certain statutes, Congress has in fact delegated to the courts the power to “update” them in a common-law fashion. The classic example is the Sherman Act. However, for statutes in which Congress did not delegate that power, courts lack the power to “update” them in a common-law fashion. Calabresi’s remarks at the 2009 Federalist Society Lawyers Convention, which were published in the Harvard Journal of Law & Public Policy explain this dichotomy.

In other words, the whole of the common law in the United States is statutory. It is enacted by statute with powers delegated to the courts. Courts—unelected as well as elected ones—were given the power, using the common law method, to construe the common law, to update it, to do all the things that law students in their first‐term torts classes and contract classes learn that courts do. Now again, does that mean that courts can do the same as to statutes for which they have not been delegated that power? No. I am only saying that delegating that power, in some circumstances, is not insane, nor is it unconstitutional.13

13. This position—that courts do not have this power unless it is delegated to them and that delegating it to them is, under some circumstances, both sane and constitutional—is the central theme of my book A Common Law for the Age of Statutes. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982).

The critical question, then, is whether Title VII should be understood as a common law statute, as was the Sherman Act. I searched my Kindle copy of Guido’s book, and it does not reveal any discussions of Title VII or the Civil Rights Act. There are discussions of discrimination, though primarily in the context of how to understand the Equal Protection Clause in Part II.

Posner writes:

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

Why does the Civil Rights Act of 1964 “invite[] an interpretation that will update it to the present?” The strongest argument would track the Court’s ever-expanding understanding of the phrase “sex” in cases like Price Waterhouse and Oncale. Yet these decisions attempt to argue that their construction of Title VII was always the correct interpretation of Title VII. That is, there was no need to “update” the statute, because of “because of.” The law always prohibited sex-stereotyping or claims of sexual harassment from men.

Posner’s argument, however, is quite different. He rejects any reliance on Oncale.

I am reluctant however to base the new interpretation of discrimination on account of sex in Title VII on such cases as Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a case of sexual harassment of one man by other men, held by the Supreme Court to violate Title VII’s prohibition of sex discrimination. The Court’s opinion is rather evasive.

Why? Because Scalia’s opinion in Oncale is, in Posner’s words, “originalism.”

Consider the statement in the quotation that “statutory prohibitions often go beyond the principal evil to cover rea- sonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (emphasis added). That could be thought “originalism,” if by “provisions” is meant statutory language.

Such an analysis would be apostasy for Posner:

So we’re back to the essential issue in this case, which is whether passage of time and concomitant change in attitudes toward homosexuality and other unconventional forms of sexual orientation can justify a fresh interpretation of the phrase “discriminat[ion] … because of … sex” in Title VII, which fortunately however is a half-century-old statute ripe for reinterpretation.

(I previously discussed the notion of “statutory originalism” in the context of Gloucester County v. GG, which applies to Title VII as well.).

Candidly, he admits that in 1964, the statute did not prohibit discrimination on the basis of sexual orientation, but today it does.

The argument that firing a woman on account of her be- ing a lesbian does not violate Title VII is that the term “sex” in the statute, when enacted in 1964, undoubtedly meant “man or woman,” and so at the time people would have thought that a woman who was fired for being a lesbian was not being fired for being a woman unless her employer would not have fired on grounds of homosexuality a man he knew to be homosexual; for in that event the only difference between the two would be the gender of the one he fired. Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word “sex” in it now connotes both gender and sexual orien- tation. It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. . . . .But what is certain is that the word “sex” in Title VII had no immediate reference to homosexuality; many years would elapse before it could be understood to include homosexuality.

Posner even disagrees with the majority opinion by Judge Wood, which attempts to graft sexual orientation to the original understanding of “sex” in 1964. Not so, says Posner:

The majority opinion states that Congress in 1964 “may not have realized or understood the full scope of the words it chose.” This could be understood to imply that the statute forbade discrimination against homosexuals but the framers and ratifiers of the statute were not smart enough to realize that. I would prefer to say that theirs was the then-current understanding of the key word—sex. “Sex” in 1964 meant gender, not sexual orientation. What the framers and ratifi- ers understandably didn’t understand was how attitudes toward homosexuals would change in the following half century. They shouldn’t be blamed for that failure of fore- sight. We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture. Congress in the 1960s did not foresee the sexual revolution of the 2000s.

Posner, always to his credit, is remarkably straightforward about what he is doing: judges should fess up about what they are in fact doing:

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.

For good measure, Posner continues his ongoing critique of Justice Scalia, rebuffing originalism:

A diehard “originalist” would argue that what was be- lieved 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.

However, his comments about Justice Scalia’s vote in Texas v. Johnson, or the construction of the Second Amendment, are about constitutional provisions. Unlike constitutional texts, which are fairly difficult to amend, the Civil Rights Act is a statute, one Congress can, and has amended–but not to prohibit sexual orientation discrimination.

At bottom, Judge Posner offers the “most sensible” interpretation of Title VII:

The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman. That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian. I don’t see why firing a lesbian because she is in the subset of wom- en who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.

There you go. It makes sense to Posner, so regardless of what Congress wrote, or even how the phrase “sex” was understood at the time, this is the correct interpretation of the statute. To paraphrase Justice Scalia’s final dissent delivered from the bench in King v. Burwell, “[w]ords no longer have meaning.”

Judge Calabresi, who was way ahead of his time, offers this description of Judge Posner’s school of interpretation:

There are people like the critical legal theorists, and people like Judge Richard Posner—who is simply a critical legal theorist of the Right—who say that courts can do anything they want because language does not tell us anything. That is nonsense. Language is important; it limits courts a great deal. To say either that language does not mean anything, or that it tells us exactly what everything means, is baloney. The truth lies somewhere in between. Text means language in context.

Nonsense is an apt way to describe Posner’s opinion. Rather, Calabresi contends, courts must be “honest agents” of the enacting legislature:

Interpretation, in my view, should always be backward‐looking. Interpretation requires one to be an honest agent. Judges are interpreters of the enacting legislature. A judge should try to find what the legislators intended, but that is often impossible. Just saying this points out the difficulty of the task because there are any number of different things legislators said and did not say.

Calabresi acknowledges that courts could perhaps consider “what people who thought about things as the legislators did would have done about it had they thought about the issue in terms of today’s society.” But such an approach yields a “problem,” he wrote, because “it is [like] putting Lincoln in a Speedo, or Washington in cut‐off jeans.”

Posner is the polar opposite of a “honest agent.” He views himself as a free agent:

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.

What Judge Posner is taking advantage of is life tenure.

 

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