Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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law. Rather, Congress and the President enacted new leg-
islation, as prescribed by the Constitution’s separation of
powers.
   For several decades, Congress has considered numerous
bills to prohibit employment discrimination based on sexual
orientation. But as noted above, although Congress has
come close, it has not yet shouldered a bill over the legisla-
tive finish line.
   In the face of the unsuccessful legislative efforts (so far)
to prohibit sexual orientation discrimination, judges may
not rewrite the law simply because of their own policy
views. Judges may not update the law merely because they
think that Congress does not have the votes or the fortitude.
Judges may not predictively amend the law just because
they believe that Congress is likely to do it soon anyway.
   If judges could rewrite laws based on their own policy
views, or based on their own assessments of likely future
legislative action, the critical distinction between legisla-
tive authority and judicial authority that undergirds the
Constitution’s separation of powers would collapse, thereby
threatening the impartial rule of law and individual liberty.
As James Madison stated: “Were the power of judging
joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary controul, for the judge would
then be the legislator.” The Federalist No. 47, at 326 (citing
Montesquieu). If judges could, for example, rewrite or up-
date securities laws or healthcare laws or gun laws or envi-
ronmental laws simply based on their own policy views, the
Judiciary would become a democratically illegitimate su-
per-legislature—unelected, and hijacking the important
policy decisions reserved by the Constitution to the people’s
elected representatives.
   Because judges interpret the law as written, not as they
might wish it were written, the first 10 U. S. Courts of Ap-
peals to consider whether Title VII prohibits sexual orien-
tation discrimination all said no. Some 30 federal judges
                  Cite as: 590 U. S. ____ (2020)             5 KAVANAUGH, J., dissenting

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