Should Supreme Court Justices Legislate From the Bench?

On June 15, 2020, the Supreme Court handed down a ruling in the case of Bostock v. Clayton County. It's a landmark decision, for several reasons. In their majority opinion, six justices wrote that sexual orientation and gender identity fell under the protections of Title VII of the Civil Rights Act of 1975. These justices took a textualist approach in their decision, most notably Justice Neil Gorsuch, who had portrayed himself as an originalist who believed the law is based on the understanding of the language when it was written, and who had even written and spoken extensively in the past about the dangers of a textualist approach.

"In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee," Gorsuch wrote in the majority opinion. "We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

Setting aside the details of the case for a moment, I believe this decision sets a dangerous precedent of the justices legislating from the bench. Congress instituted Title VII – which prohibits employer discrimination on the basis of race, color, religion, sex or national origin – as part of the Civil Rights Act of 1975. In order to change a law, Congress must pass a law. Nine unelected justices should not overstep into Congress's jurisdiction.

I'm concerned to see the judicial branch overreaching into the legislative branch, and oftentimes the Court does this because Congress fails to act. However, in this instance, Congress had acted and was very clear in the language of the day with the term "sex" meaning biological gender, nothing more, nothing less.