Fake Law by Fake Judges

Brazen judges openly legislating from the bench are confirming the widely-held public perception that activist courts are out of control. As a lawyer practicing for three decades in the plaintiff-friendly stronghold of California, within the jurisdiction of the notorious Ninth Circuit, I witnessed many instances of judges—state and federal—slanting their decisions against disfavored parties, such as insurance companies, corporate employers, and deep-pocketed defendants.

Activist judges used to be subtle about it, usually “fudging” the result only in close cases, and typically relying on semi-plausible statutory interpretations, tenuous factual “findings,” flimsy credibility determinations, and the like to justify the politically-desired outcome. Even in California, it was important for judges to maintain a patina of impartiality, so decorum required that their result-oriented decisions hide behind at least a fig leaf of neutral reasoning or precedent.

Not anymore. Judges increasingly view themselves as political actors free to “go rogue,” issuing rulings that are directly contrary to unambiguous laws. Such scofflaw decisions cannot in any meaningful sense be considered “law,” and the black-robed functionaries who issue them cannot fairly be regarded as “judges.” We are entering the realm of fake law being invented by fake judges. This obliteration of the proper judicial role is a threat to democracy—or, if you prefer, to our republican system of representative self-government.

When judges refuse to follow the law, they are scofflaws who threaten democracy.

If this sounds like hyperbole, consider the absurd ruling of the Fourth Circuit Court of Appeals, upholding a nationwide injunction of President Trump’s travel ban order, not based on the actual text of the order, but on statements that candidate Trump made on the campaign trail. Even NeverTrumper David French at NRO called this decision “a strange madness” that he termed “Trumplaw” because he does not believe that any court would rule this way if the President were any other politician. Yet a recent ruling from a federal district judge in the Eastern District of Pennsylvania (based in Allentown) is even worse—possibly the most outrageous judicial decision I have ever seen.

The case, Blatt v. Cabela’s Retail, Inc., is a straightforward employment discrimination lawsuit brought by a former employee against the outdoor sports retailer Cabela’s, under the Americans With Disabilities Act. The facts are simple: A biological male named James Blatt was hired by Cabela’s as a seasonal stocker at its Hamburg, Pennsylvania store. He was employed for six months, from September 2006 through March 2007, at which time Cabela’s terminated him. Blatt is a diagnosed “transgender,” meaning that he “identifies” as female even though he was born as (and anatomically remains) a male. Blatt’s lawsuit alleges that Cabela’s discriminated against him under the ADA by refusing to “accommodate” his medical condition—gender dysphoria—by allowing him to wear a female name tag (“Kate Lynn” instead of “James”) and granting him access to the female restroom. Additionally, Blatt alleges that he was subjected to objectionable comments from co-workers due to his decision to dress and act like a female at work, and ultimately was fired due to his condition.

I confess that I am skeptical about the extension of legal privileges to so-called transgender persons (see, for example, here, here, and here), but the ADA clearly excludes gender identity disorders as a “disability” requiring accommodation by an employer. Simply put, when Congress enacted the ADA in 1990, in section 12211 it specifically denied legal protection to “homosexuality and bisexuality,” and went even further, listing the types of sexual disorders that would not qualify as a disability. The statute expressly states that “the term ‘disability’ shall not include … transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” (Emphasis added.) “Gender dysphoria,” Blatt’s alleged disability, is a gender identity disorder. Ergo, Blatt’s condition is not covered under the ADA and cannot form the basis for a claim of discrimination under that statute.

Nevertheless, on May 18, 2017, U.S. District Court Judge Joseph Leeson, appointed to the bench by President Barack Obama, denied Cabela’s motion to dismiss, ruling that gender dysphoria is protected by the ADA. Acknowledging the provisions of section 12211, quoted above, Judge Leeson “reasoned” that the exclusion of “gender identity disorders” from coverage of the ADA should be “read narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.” Whatever that means.

Congress unambiguously excluded “sexual behavior disorders,” from the ADA, specifically citing “transvestism” and “gender identity disorders.” Therefore, gender dysphoria is not covered by the ADA, period. The statute could not be clearer. Judge Leeson strained to conclude that Blatt’s gender dysphoria was more than merely “identifying with a different gender,” by claiming that Blatt’s condition also “substantially limits her [sic] major life activities,” including reproducing.

As Dave Barry would say, I’m not making this up.

Legal Mandarins inhabit the courts today.

According to Judge Leeson, because a man pretending to be a woman, and even dressing like a woman, can’t bear children, that makes the gender identity disorder a disability under the ADA. Therefore, Judge Leeson concluded, “Blatt’s condition is not excluded by section 12211 of the ADA, and Cabela’s motion to dismiss Blatt’s ADA claims on this basis is denied.”

Cabela’s will now have to incur the legal expenses of discovery and trial preparation in defense of a claim that Congress intended not to exist. Cabela’s recourse will be to appeal an adverse judgment to the Third Circuit Court of Appeals, if it doesn’t settle the meritless lawsuit in the meantime to avoid substantial legal costs.

This was not a casual mistake by a busy, overworked judge. Federal judges are assisted by a bevy of full-time “law clerks” (recent law school graduates who compete for the coveted one or two year positions based on academic distinction), and sometimes also part-time “externs” (current law students volunteering for a semester). Judge Leeson’s six-page opinion was issued nearly 18 months after Cabela’s motion to dismiss was argued in December 2015. Judge Leeson’s ruling was deliberate. He blatantly thumbed his nose at the ADA because he desired a policy outcome contrary to the one enacted by Congress. The decision, largely overlooked in non-legal media, was closely-followed in the LGBT community—in fact, hailed as a landmark ruling. Which it is.

Americans need to confront that judges—especially life-tenured federal judges—have become naked political actors, advancing a policy agenda masquerading as law. The ideology represented by these “new mandarins” is profoundly hostile to our bourgeois social order. Activist judges now routinely misconstrue or ignore statutes enacted by the legislature, and—as with the case of Trump’s travel ban order―hamstring executive branch policies with which they disagree. This is antithetical to the constitutional separation of powers, and principles of self-government. Despite activist courts’ ongoing judicial usurpation of lawmaking, many libertarian legal theorists continue to advocate an even greater role for judges in reviewing democratically-enacted laws. Proponents call this theory “judicial engagement,” but I view it as a call for libertarian judicial activism. The judiciary is too “engaged” already. Decisions like Blatt v. Cabela’s illustrate the need for judicial restraint, not increased activism.


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18 responses to “Fake Law by Fake Judges”

  1. The sexual behavior disorders exclusion was likely added to the ADA so it could pass. In other words, the ADA wouldn’t even be a law, and this case couldn’t have been brought, if not for the now meaningless exclusion.

    Reminds me of a speech I heard from Berlin a couple days ago demanding that we “push back against those trends that … suppress democracy.”

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    • This exclusion recognizes scientific fact, and was included specifically to address those who don’t.

  2. Tenure for any job except perhaps the supreme court should be abolished. Power corrupts and it should be checked on a regular basis.

    • All judges should stand for election. It’s the only way they can be held accountable.

    • I am thinking that lifetime appointment for any judge except those on the Supreme Court can be overridden by Congress. I suggest that every such judge stand for reappointment by the Senate every 8-10 years. Reappointment should require a 60% vote since their records are already known.

    • Good question. I’ve written about this. https://amgreatness.com/2017/03/20/can-activist-judges-controlled/
      President Trump needs to speed up his judicial nominations. There are 120 vacancies on the federal bench. Congress needs to stand up for itself by considering limits on federal court jurisdiction and impeachment of scofflaw judges. At some point, the executive may have to resort to ignoring errant decisions.

      • Would it be possible for the executive to grant some kind of clemency, or do those powers only extend to criminal cases?

      • I quail at the thought of who gets to define “scofflaw” – knowing how far the Left will got to obtain power — and the executive bureaucracy is already ignoring decisions they don’t like.
        I’ll take carefully drawn statutory (or Constitutional) limits on jurisdiction, and some mandatory retirement ages / maximum tenures.

  3. There are all too many of these leftist judges that are issuing opinions based on their political dogma instead of the law. There should be some method of removing these “lifetime” trolls from the bench. Theoretically and historically, the bench should be self-policing and such judges are only assigned the least important cases or advised to retire. Now the entire judiciary is infested by the Hillary/Obama disease of liberalism and there is no easy way to remove these disgraces to the system.

  4. Why are we shocked or surprised at this late stage in the perversion of OUR legal system into what is now a means to ends; economic, social and political.

    The “Operators” of this system so widely desired and accepted by our society are those “learned in the law” through our system of legal education (Law Schools) of the past 70 years (at least); from which are now drawn those individuals to act as “jurists” at the various levels of litigated and administrative matters. Having evolved their motivations through participations in a system used as a means to ends, how natural as “jurists” they too use the system as means for ends of their choosing.

  5. I feel your pain, Mark. The practice of law was so much fun 35 years ago when I started. I hardly recognize it anymore

  6. Would ANYONE else have standing to appeal this nonsense? Because if no one does, it becomes a precedent providing other Leftists cover?

    • I don’t think motions to dismiss are appealable, unfortunately.