Anybody have any idea which recently deceased Italian-American judge Judge Posner might have had in mind when he wrote this in his Hively v. Ivy Tech concurrence?
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. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
Actually, kidding aside it’s not even a subtweet, as he calls out Scalia by name earlier in the opinion. (I actually think Wood’s opinion for the court is stronger this time.)
More on the major ruling later. I just hope that Kennedy doesn’t want his legacy to include “getting to the right of Frank Easterbrook in a major LBGT rights case.”