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SCOTUS Is Not the Place for Social Activism
Wednesday, June 24, 2020

Once again, the U.S. Supreme Court has strayed from its constitutional authority in declaring what preexisting law is to actually making law itself.

Impatient with the pace of legislative action on amending Title VII of the Civil Rights Act of 1964 to include sexual orientation discrimination, the Supreme Court has rewritten the statute via interpretation. In Bostock v. Clayton County (a 6–3 decision), the Court held that Title VII’s prohibition of workplace discrimination based on “sex” now includes sexual orientation as opposed to the original 1964 meaning of biologically male or female in the law. Although many Americans may well agree with the policy result reached by the Court, all thinking persons should question whether six unelected lawyers have the authority to usurp the legislative role of Congress. “There is only one word for what the court has done today: legislation,” dissenting Justice Samuel Alito wrote.

In the same week, the Court contrived a way to rescue the DACA program from President Trump’s Executive Order to end it, even though DACA was unconstitutionally created by an Executive Order from President Obama. Similarly, the Court creatively avoided rulings that would have reinforced the Second Amendment and rescinded “qualified immunity” for police and other government officials. And all of this is reminiscent of how Chief Justice Roberts invented a way to rescue Obamacare in 2012 by unilaterally redefining legal terms.

This event features Independent Research Fellow William J. Watkins, Jr., who discusses with Independent Executive Director Dr. Graham H. Walker how Bostock and other decisions by the Roberts court are teaching Americans the wrong lessons. They discuss how rather than engaging in a debate, proposing legislation, and garnering votes, we are being told that the easiest way to obtain a desired policy result is to run to the judiciary to legislate unconstitutionally “from the bench.”

Graham H. Walker
Graham H. Walker is Executive Director and Assistant Editor for The Independent Review: A Journal of Political Economy at the Independent Institute. He received his Ph.D. in public law and government from the University of Notre Dame. Dr. Walker has served as Associate Professor of Politics at Catholic University of America, Assistant Professor of Political Science at the University of Pennsylvania, Visiting Scholar in Social Science at the Institute for Advanced Study (Princeton, NJ), Senior Research Scholar at the Witherspoon Institute, Headmaster at Oaks Christian School, Vice President for Academic Affairs at Oklahoma Wesleyan University, Visiting Scholar at the American Enterprise Institute, President at Patrick Henry College, Legislative Aide to former Congressman David Stockman, and Fellow at the Presidio Institute.
William J. Watkins, Jr.
William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty: Recovering the Anti-Federalist Values of America's First Constitution and Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy. He received his B.A. in history and German summa cum laude from Clemson University, his J.D. cum laude from the University of South Carolina School of Law, and his LL.M. with merit from the University of London. Mr. Watkins is a former law clerk to Judge William B. Traxler, Jr., of the U.S. Court of Appeals for the Fourth Circuit, and he is the President of the Greenville, SC, Lawyers Chapter of the Federalist Society. He has served as a prosecutor and defense lawyer, and has practiced in various state and federal courts.

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