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  • Writer's pictureStaff @ LPR

Legislating From The Bench - Not REAL Justice!

The legislative branch makes the law, the judicial branch interprets the law, and the executive branch enforces the law. This is the general outline of the American form of government as taught in middle schools, but responsibilities are more blurred in practice. Conservatives frequently criticize courts for legislating from the bench through judicial activism. The recent Bostock opinion by the Supreme Court illustrates the danger posed when courts rewrite laws.


Title VII of the Civil Rights Act provides that it is unlawful for employers to fire, refuse to hire, or otherwise discriminate on the basis of the individual’s “race, color, religion, sex, or national origin.” At issue in Bostock was whether the inclusion of “sex” in Title VII protected sexual orientation by extension. This essay will not delve into the legal arguments of whether this decision was correct as a matter of law or as a matter of policy. When passed, no one considered sexual orientation to be within the scope of the Title VII protections. This understanding became entrenched in the law’s interpretation for the 56 years since its inception. Several attempts were made by Congress to add sexual orientation to the list of protected groups, implying that it was not already covered by the term “sex.” The Supreme Court disagreed by a margin of 6 to 3 with Roberts and the liberal justices joining the Gorsuch written opinion.


For better or for worse, the court effectively rewrote the law as it was understood for its entire history. In doing so, the court in practice violated the principle forbidding ex post facto laws. An ex post facto law is a law that has a retroactive effect. For example, imagine if you drove down the interstate at the speed limit of 65 MPH today. Tomorrow, the speed limit is lowered to 55 MPH, and you get a ticket in the mail for going 65 the day before. This is obviously unfair. The rule against the passage of ex post facto laws is one arising from this intrinsic sense of fairness: no one should be civilly or criminally liable for violating a rule that was not in place at the time the action was committed. As described by St. Thomas Aquinas, a law must be promulgated in order to be a law at all. Article I Section 9 of the Constitution forbids Congress from instituting ex post facto laws (perhaps the last uncontentious part of the Constitution in today’s polarized environment). However, no such rule exists for decisions by the court that amount to new policy proposals.


Legally, the Supreme Court did not create an ex post facto law. In the majority’s view, they interpreted the law for what it had meant from the day that it was signed into law. To them, the law had no retroactive effect. Title VII had protected individuals from discrimination based on sexual orientation for 56 years despite the original intent and years of widespread understanding to the contrary. As a matter of law, no ex post facto issue exists. In practice, however, the court’s decision to legislate from the bench created the same consequences as an ex post facto law from Congress. In the case at hand, the employer who discriminated on the grounds of sexual orientation was liable to the plaintiff despite following the widespread (if not nearly unanimous) interpretation of the law at the time of the action. This decision does not only affect the parties in the case. Subject to some limitations, any employer who took an action that was widely seen as lawful at the time is now considered to have taken an unlawful action under Title VII and could face liability.


Even if you agree with the ultimate policy outcome in the Bostock case, it illustrates several grave dangers of allowing courts to rewrite acts of Congress with retroactive effects in other cases. First, it breached the fundamental fairness principle of holding individuals responsible only for things that they knew or could have known. As repeatedly discussed, the prevailing view that Title VII did not include protections for sexual orientation became entrenched over decades of legal analysis. Second, the court’s retroactive application of its decision reduces the incentive for people to seek legal advice and hinders the ability of individuals and businesses to plan. The purpose of written law is clarity. But if a court can rewrite laws as it did in Bostock, why have written laws at all? Why seek legal advice if the widely accepted view can be changed and you can be liable for following the common understanding? This is not to say that planning and certainty should prevent the progression of law. Laws must evolve over time. The problem is when progressions of law are retroactively applied to entities who sought to comply with the law as it was at the time of its action. Finally, allowing the retroactive application of the decision undermines trust in the legal system as a whole because it breaches the fundamental fairness principle and chills planning and seeking legal advice. People want laws to be fair. That is why people celebrated the majority’s argument in Bostock. But fairness implies fairness for all of the relevant parties. Achieving fairness for one group at the cost of unfairness to another is necessarily unfair. As such, the lack of fairness erodes trust in the legal system.


The question turns to what should be done in response to the threat of judicial ex post facto decisions. Courts could stop rewriting Congressional laws when they are clear and well settled. Admittedly this is unlikely. Alternatively, courts could make these types of decisions have only prospective effects. In other words, do not apply the judicial “innovation” of the law to the present case or any actions taken before the decision was rendered. This would allow for the progression of law while adhering to the fairness principle underlying the ex post facto prohibition. In the present case, this would mean that employers could no longer discriminate based on sexual orientation. But those employers who did so before the shift in interpretation would not be punished for that which they did not foresee. This proposal is similar to the doctrine of qualified immunity that public officials enjoy. Admittedly, the scope of qualified immunity has been scrutinized in recent months. Although it should be trimmed for public officials (a discussion for a later post), the principle that people should be able to know whether something is lawful begs for qualified immunity to protect individuals and businesses as well.


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