[j0hnml]

I could honestly see it both ways, but this argument seems relatively weak to me. The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation. From what I can tell making those kind of interpretations are at the core of the Court’s purpose.

[Qub3d]

That is exactly what the majority opinion stated in response to the historical meaning argument. It is not reasonable to expect every time a court finds a law should be applied in a way its never been applied before to then throw up their metaphorical hands and say "welp. Guess we have to let the legislative branch do something, our work here is done."

Re-interpreting existing law is a HUGE component of our legal process. This goes all the way back to common law roots -- the court does not PREscribe law from above arbitrarily, rather it DEscribes the existing societal contract.

[pdonis]

> Re-interpreting existing law is a HUGE component of our legal process.

It is, but that doesn't necessarily mean it should be.

Decisions like this are ultimately political. The Court has basically decided that discrimination based on sexual orientation or transgender now counts as discrimination based on sex and hence is prohibited by law. But decisions about what real-world actions count as what legally recognized actions are political decisions, and political decisions in a democracy are supposed to be made through the democratic process, i.e., by the people or their elected representatives.

> This goes all the way back to common law roots

Yes, but those common law roots are not based on democratic norms; they come from societies that were not democracies but monarchies. A case could be made that our concept of "common law" has not kept up with the evolution of our society from monarchy to representative democracy.

Of course, an opposing case could also be made that even though our society is nominally a democracy, that doesn't necessarily mean that everything in the law should be democratically decided. Our law does recognize fundamental rights that cannot be changed or removed by the democratic process, and at least part of the process of common law is supposed to be to provide a way for people to have those rights recognized and respected even if there is no explicit statute that does so. Then the question would be whether there is such a right not to be discriminated against based on sexual orientation or transgender.

[rtkwe]

It's the same BS that got us out of control qualified immunity, just because a court hadn't already found that the precise way a cop/government official violated your rights was a violation of your rights they couldn't be charged for it. [0] More conservative justices love originalism because it lets them just throw back to the decisions of a more backwards time and say, 'well we have to respect their direct explicit intent' [1] it's a convenient way to not move forward.

[0] Never mind that it also expects the existing case to be /exactly/ the same situation.

[1] Often just what anyone appealing to originalism wants them to have intended.

[pdonis]

> The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation.

No, the majority opinion is not doing that. It is not arguing that "sex" includes "sexual orientation". It is arguing that, in order to discriminate based on sexual orientation (or transgender), you have to also discriminate based on sex.

The dissents disagree with that argument. But both sides agree that "sex" does not include "sexual orientation"; they are distinct concepts.

[j0hnml]

Thanks for the clarification. I read Kavanaugh’s dissent instead of the Court’s opinion, so I made a wrong assumption. You are correct, they aren’t making the argument I was thinking they were.

With that said, I still think that this is far from the Judiciary system amending legislation.