Kavanaugh, J., dissenting
judges.[1]
The unanimity of those 30 federal judges shows that the question as a matter of law, as compared to as a matter of policy, was not deemed close. Those 30 judges realized a seemingly obvious point: Title VII is not a general grant of authority for judges to fashion an evolving common law of equal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination. And under the separation of powers, Congress—not the courts—possesses the authority to amend or update the law, as Congress has done with age discrimination and disability discrimination, for example.
So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed. Rather, the judges’ decisions have evolved.
To be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase and the meaning of a phrase’s individual words could differ, it dismisses phrasal meaning for purposes of this case. The majority opinion repeatedly seizes on the meaning of the
- ↑ See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001); Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth v. Children’s Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085 (CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005).
