Monday, April 17, 2017

Toto for a Day

"Pay no attention to that man behind the curtain!"

This famous line from the perennial classic movie, "The Wizard of Oz", has often been expressed as meaning the people secretly in the background pulling the levers of a hidden machine. Everyone is awestruck by the power and eminence of the "Great Oz", only to discover (after Toto scurries up and pulls the curtain) that the Great Oz is actually a great fraud.

Often in the marbled, grand legal world, the American people huddle and shake like the characters of this story as the court system thunders, "Do not arouse the wrath of the great and powerful Court!"

Only on rare occasions do you find Toto scampering up and, for a brief moment, revealing the truth--that the great and powerful legal system is not a rule of law but a rule of man. The judges are pulling the levers. This Halley's Comet event slipped by quickly across the corner of the legal sky on April 4th in the case, HIVELY v. IVY TECH COMMUNITY COLLEGE OF INDIANA, before disappearing over the legal horizon as quickly as it appeared.

This important Seventh Circuit opinion was about a lesbian who claimed she was denied promotions at this Community College due to her sexual orientation. She sought redress through a statue, a law passed by Congress, a monumental and historic law in fact, Title VII of the Civil Rights Act of 1964. It has been made famous for its prohibition of discrimination on the basis of race in employment but also had other prohibitions. This Act made it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin."

It was the "sex" part that was at issue. Hively claimed sexual orientation should be included. The problem was the this word has always  been understood to mean male or female. It was understood that way in 1964 and still is today. Indeed, a long series of cased upheld this common understanding but that does not stop the modern legal system. The majority would begin with:

"The question before us is not whether this court can, or
should, 'amend' Title VII to add a new protected category to
the familiar list of 'race, color, religion, sex, or national
origin'. Obviously that lies beyond our power."

They would then spend 21 pages utilizing classic legal doublespeak to obfuscate, obscure and ultimately do exactly that.

None of this, unfortunately, is unusual.

You have to look to the concurring opinion of Judge Richard Posner before you catch a glimpse of Toto at work.

This 78 year old prolific legal writer happens to be long past any illusions of a seat on the Supreme Court. We have all seen the many memes on social media:

Posner is a bit tired of the charade and reaches up, pulling the curtain:

"I join the majority opinion, but I wish to explore
an alternative approach that may be more straightforward...
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. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 965), carrying out their wishes."
This was a brazen admission that the Court was in truth, flat ignoring the Constitutional mandate that it is Congress and not the Court that makes the law:

"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  
Article I of the US Constitution
The dissent would of course stridently attack this judicial defiance:

"Th[is] result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover...Either way, the
result is the same: the circumvention of the legislative process by which the people govern themselves.
When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people."

This Toto's reveal hit the bottom of the news feeds for a few hours and then quietly slipped into the dusty legal blogosphere.

Whenever the Great and Powerful Oz's finally decide the issue, you can be certain the curtain will be firmly back in place. Whatever the mighty ones decide, there will be no Toto--they might get noticed--so there will only be what Scalia said back in 2011 in MICHIGAN v. BRYANT :

"Today’s tale . . . is so transparently false that professing to believe it demeans this institution. In its vain attempt to make the incredible plausible, however – or perhaps as an intended second goal – today’s opinion distorts our...jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort."

"Go - before I lose my temper! The Great and Powerful-- Oz -- has spoken!"