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…
So says the so-called ‘judge’ Richard Posner.
Posner’s theory of statutory interpretation, then, is really a theory of judicial usurpation of Congress’s Article I powers. Article I, let’s recall, states that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” So yes, as a rule the “entire burden” of updating old statutes is indeed on the legislative branch. Congress has consistently declined the opportunity to add sexual orientation to the list of protected classes under Title VII, and judges have no authority to exercise legislative authority in Congress’s place.
Source: The post-constitutional world of Judge Richard Posner – The Washington Post