Fighting judicial overreach is policy neutral

September 18, 2018

Activist judges who set aside their duty to interpret statutes and instead rewrite the law consistent with their own views should disturb us all — regardless of any particular policy preferences.

The separation of powers is a fundamental principle understood by elementary civics students, and for good reason: It is critical to our free and democratically accountable form of government.

But when judges or unelected bureaucrats trust themselves to shape the law in place of our elected representatives, we all suffer.

Our office has consistently fought this overreach.

Whether the policy be immigration, energy production or, most recently, workplace discrimination, our office has been consistent in defending the rule of law and the undisputed role of Congress to make important decisions that affect West Virginia.

The constitutional principle that judges say what the law is, and only those men and women we elect get to make the law, is a policy neutral decision.

Championing the separation of powers is not a decision to condone or support discrimination, as a recent article and editorial by The Herald-Dispatch may lead its readers to believe.

In fact, true analysis of our brief itself would have made clear that our 16-state coalition took no position on whether existing laws should be amended or supplemented to include protections based on gender identity and transgender status.

Instead, the brief urges the U.S. Supreme Court to review, and ultimately overturn, a lower court ruling that rewrote the Civil Rights Act in a way Congress never intended, by erasing all common, ordinary understandings of the term “sex.”

The coalition’s singular purpose is to note that “sex” under the plain, unambiguous meaning of Title VII does not mean anything other than biological status. Unless and until Congress acts to change that meaning, the Constitution leaves to states the authority to determine which protections should flow to an individual based on “gender identity.”

Nothing in the brief interferes with or advocates against workplace protections on a state or local level. What it does argue is that judges cannot hijack the legislative process to make the law say something it does not.

Again, that is a matter for Congress and our state lawmakers.

Elected legislators, at all levels of government, are entrusted by the voters to consider the views and needs of their constituency, solicit broad input on the impact of potential policy decisions, study a range of potential solutions and ultimately work with their colleagues to draft legislation that benefits their community, state or nation.

Judicial overreach sidesteps this legislative diligence. It imposes the views of just three to nine unelected judges upon the entire citizenry. This robs voters of their voice in setting policy and substitutes the blunt instrument of a judicial decree for the nuanced policy decisions that come from deliberation and bipartisan input.

Our office will remain consistent in fighting against such overreach.

We all have an opportunity and responsibility to advocate for policy changes through our elected officials. We all lose when we allow that process to be short-circuited by unelected judges or bureaucrats who twist the law to fit their desire.

Patrick Morrisey is the attorney general of West Virginia.

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