by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The latest print edition of National Review features a brief lament about federal judges who are unwilling to abide by the Constitution.
It’s becoming increasingly clear that a disturbing number of federal judges are reading a social-justice “super clause” into the Constitution and federal statutes and regulations. The clause works like this: When the law conflicts with the demands of social justice, the law can and should be reinterpreted, regardless of the text. The latest example happened in the Seventh Circuit Court of Appeals, where the full court held that the prohibition against sex discrimination in Title VII of the federal Civil Rights Act is broad enough to include a prohibition against sexual-orientation discrimination. Judge Richard Posner, in his concurrence, called the decision an act of “judicial interpretive updating.” His purpose was to give an old statute “fresh meaning.” Yet this is not the role of the courts, as Judge Diane Sykes pointed out in her dissent. They do not make new law. So, where are we now? We’re left with an entire class of federal judges who, when faced with contentious culture-war cases, simply ask, “What can I do for social justice today?” They disrupt the constitutional system and ask the Supreme Court to ratify their lawless acts, and all too often the Supreme Court does just that.
This reader recalls a recent Daily Journal that exposes a key problem associated with “social” justice.
Terms such as “social justice” and “racial justice” raise red flags for this observer. An action can be just. It can be unjust. Or it can have nothing to do with justice.
By definition, a “just” act must be good for society, hence it’s socially just. The same should be true for all races. Advocates of a particular “brand” of justice seem to suggest that their preferred qualifiers — “social,” “racial” — can transform an act from just to unjust or vice versa.