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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