During the AALS 2017 conference, Judge Posner appeared on a panel about Bill Eskridge’s work on legislation. Or, at least he phoned it in. Along with Judge Katzmann, Judge Posner spoke remotely by phone. On the panel were Justice Goodwin Liu and Judge Marsha S. Berzon.
During his remarks, Posner spoke about a pending en banc case, Hively v. Ivy Tech, which considers discrimination on the basis of sexual orientation is prohibited by Title VII. Judge Posner repeatedly referred to it as the “lesbian case.” His comments were, well, surreal.
Disembodied voices of Article III at #AALS2017 pic.twitter.com/JcWOXkaB5k
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner: “It’s terrible communication. I’ve got no sense at what Liu was driving at. Every few seconds there was silence” #AALS2017 https://t.co/nxXEe0nHyy
— Josh Blackman (@JoshMBlackman) January 6, 2017
Judge Posner is up #AALS2017
— Josh Blackman (@JoshMBlackman) January 6, 2017
Law is made by simple people. For simple people. I don’t admire the legal system, judiciary itself. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Courts should simply pick whatever most sensible interpretation, forget about intent of Congress. How can you make garbled statute useful? https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
There is a case my court heard recently, it hasn’t been decided yet, so I won’t offer an opinion. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner talking about suit where Lesbian employee fired. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Employer argued that sex means man or woman. Fired bc she was a lesbian, which is not sex, but an orientation. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
That is literal-minded interpretation. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Contrary view. Civil Rights Act of 1964. Hafl century ago. That is a different era of how we think about sex. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Today we have same-sex marriage. Given that lesbians recognized different from heterosexuals, shouldn’t we bring Civil Rights Act up to date https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
If leg in 1964 had known what was coming in half century, different attitudes toward sex, discrimination would include subgroups of genders https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpret statute with how it fits modern needs. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Most of what we think of is constitutional law is made up by the #SCOTUS, doesnt have to do with what 18th century ppl thought https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
4th Amendment places limits on warrants, does not require any warrants in any circumstances. But this isn’t 18th century anymore https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Natural for judges in modern times to interpret constitutional provisions to meet contemporary needs. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Justice Scalia cast deciding vote to hold burning flag is speech w/in meaning of 1st Am. That is absurd as historical interpretation https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpretation, realistically, includes giving meaning to a statute that wasn’t in the meaning of the thoughts who wrote the statute. https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
I give absolutely no weight to the cannons of statutory construction. Ir regard them as totally worthless and meaningless and unnecessary https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
(Judges on panel smiling at Posner dismantling everything) https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Interpret statutes to meet current needs, even if not foreseen by framers. That is in short how I think about statutes https://t.co/k6wsnv8YQl
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner to Eskridge: Would you let me get a word in edge wise? What do you think about the lesbian case?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner again: What do you think of the lesbian case? Isn’t that a simple question?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Posner: What arguments are there for a narrow construction about 1964 Act?
— Josh Blackman (@JoshMBlackman) January 6, 2017
Update: Judge Posner offers a response in this post.