SCOTUS Justices are not Judges

by Ugh

As many (some?) of you know, I was "lucky" enough to take Constitutional Law from Prof. John "Torture? Hell yeah!" Yoo at Berkeley, back before his tenure at OLC in the Bush Administration.  This was Con Law I, which mainly focused on things like separation of powers, the rights and duties of the legislative, executive, and judicial branches, and not, e.g., the Bill of Rights, due process, etc.* 

One of his observations in class, and I forget how this came up, was that he would never want to be a Judge.  A Supreme Court Justice, on the other hand....  And so here we are, faced with another kabuki dance of pretending a nomination to the Supreme Court is the same as any other position in the Judicial branch, and as long as someone has the necessary prerequisites, how can you possibly object?!!?  He (and for all but 3 FOUR justices it has been "he"), has a distinguished career as a circuit court judge, writing decent opinions, and he "follows the law".  What's to complain?

Well, SCOTUS justices don't have to "follow the law." At least on Constitutional questions and to a decent extent on statutory interpretation, they "make" the law.  So that a circuit court justice actually felt bound by SCOTUS decisions and other precedent is neither here nor there.  It seems likely that Kavanaugh's appointment will shift the court significantly to the right, making CJ Roberts and not J. Kennedy the median vote - and with Kavanaugh/Gorsuch/Alito forming a wildly conservative 3 vote block on most issues, 4 if you include Thomas, this does not bode well for the majority of Americans, perhaps the vast majority.

Anyway, just felt the need to get that off my chest.

P.S. There's something about Mitch McConnell that's so hypocritical it's like how much more hypocritical could he be? And the answer is none. None more hypocritical.

*Needless to say the powers of the President as taught by Prof. Yoo in class didn't exactly match up with his analysis in his OLC memos.  Funny that.

Comments

[wj]

Suppose (just for the sake of discussion!) that Mueller's final report shows that Trump has been both funded and controlled by Putin. Not saying how likely I think that is. Just an assumption for the purpose of this comment/question.

What would be the position of anyone, especially any judge (or Justice), who was appointed by him? That is, even if they were simon pure when it comes to Russian influence on them personally, would the mere fact of being appointed by a Russian agent be cause for removal?

[Nigel]

Kavanaugh is even more of a piece of work than I thought...
https://www.wired.com/story/brett-kavanaugh-supreme-court-could-spell-trouble-for-tech/

[Ugh]

wj - the House and Senate can, I would say, remove any Executive or Judicial branch official for any reason they want. Sure the Constitution says "high crimes & misdemeanors", but IMHO there is no way a court is going to adjudicate a decision by the House and 2/3 of the Senate to remove an official for any reason or no reason.

So they could certainly use "nominated by a fraudulently elected President" as a reason to remove a judge/Justice.

But, what then? If Trump is still President is he barred from nominating anyone? And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them. Perhaps he would choose different SCOTUS justices.

More broadly, suppose it was proven that the Russians had hacked the vote counting systems in a few states and flipped enough votes to Trump to hand him an election actually won by Clinton. What then? I think a court would rule "the Electoral College has voted and Trump is the President."

One of the big holes in our system of government is how to remedy this kind of thing. Another: suppose Trump and Pence died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I'm pretty sure there isn't.

[wj]

suppose Trump and Pence [had] died in a plane crash between the time of the election and their inauguration. Would Hillary then be President? There is no answer in the Constitution, at least I'm pretty sure there isn't.

Unlike you, IANAL. That said, I'm pretty sure that the language in the Constitution would devolve the Presidency on the Speaker of the House.

Certainly someone would have to step in. And I can't see an alternative.

There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.

[Tony P.]

I mentioned last night that Kavanaugh is a lickspittle. I see this morning that The Washington Post noticed his toadyism also.

Of course, Kavanaugh kissing He, Trump's ass right off the bat is not likely to disgust Manly Men like Joe Manchin or Perennial Teases like Susan Collins. But I do hope that Leahy or Whitehouse might grill Kavanaugh on TV about it. Neither of them will do it as well as Al Franken would have, though.

Any SCOTUS nominee who is capable of the idolatrous flattery Kavanaugh exhibited by saying (to, and of, He. Trump!) that “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination” has some kind of "temperament", but not the "judicial" kind.

--TP

[Ugh]

There might be a question, if their deaths occurred before the Electors vote, whether that would free those electors who are bound by state law to vote for the winner of the election in their state. If not, there could be an absence of a majority in the Electoral College, which would throw the decision to the House.

Now you're going to go and make me read (or re-read) the Constitution wj!

Whether their deaths occurred before or after the electoral college votes would certainly make a difference in how things played out.

[wj]

Ugh, I suppose there's some virtue in reading it occasionally. ;-)

But the way I read Article 2, Section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress

the state legislatures have the authority to force electors from their state to vote only for the person listed on the ballot. I don't know if the various state laws make provision for a circumstance where said person is dead. But I'm guessing not.

[JanieM]

Here's a resource about the EC. I don't have time to dig into it right now myself.

[Ugh]

I don't know if the various state laws make provision for a circumstance where said person is dead.

Or, you know, under 35, or not a natural born citizen, or some other disqualifying characteristic, including that the person probably needs to be on this side of the grass.

There are a lot of Constitutional provisions that could use tidying up. The long period between election of the President and inauguration being just one. The electoral college mess being another.

[Sebastian H]

"Well, SCOTUS justices don't have to "follow the law." At least on Constitutional questions and to a decent extent on statutory interpretation, they "make" the law."

I've always had a huge problem with this formulation. I want to be clear that I understand that it is a common formulation, especially among living constitutionalist theorists, and especially when defending the Warren and Burger Courts so I'm not suggesting that it is obviously silly or wrong to talk about it that way, but I disagree with it.

The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings. That is a function of a judge. The idea that it is supposed to function as a back door amender to the Constitution strikes me as highly suspect. If the Court is really a maker of laws rather than a judge-style applier of laws I have no idea why we would task that to 9 life time appointees who can only be overruled by an amendment to the Constitution, or presumably by repeated impeachment of judges making rulings 2/3 of the Senate doesn't like.

I don't understand how anyone thinks that is a good idea from even a remotely democratic standpoint. Constitutionalism has good arguments for temporarily thwarting majority will to protect minorities. But the kind of Courtarcy described by the "they make the law" seems far less defensible. It also isn't clear to me whether or not people who use the formulation mean it as regrettable but descriptive (as in "they make the law and we unfortunately can't stop them") or if they mean it to be a good thing (as in "they make the law so we had better make sure that we get our judges in there so the other side can't overrule our preferences except with a constitutional amendment or a violation on the norm against impeaching judges you merely disagree with plus 2/3 of the Senate").

[Ugh]

The Supreme Court is tasked with applying the Constitution (among a couple of other tasks) in court settings.

Yes but the Constitution is incredibly brief and vague. This professor of mine once described the test he was put through in order to vote in the south. In addition to being asked to explain what the Latin phrases in the Constitution mean, he was asked "what does 'due process of law'" mean?

He parried that, in his telling, by saying "I really don't know, but neither does the Supreme Court..." That was him describing in 1993 a test he was required to take in the 1950s (or maybe earlier).

For better or worse, to your point, this is the de facto system we have. The Constitution is too hard to amend, even on simple procedural issues, and so it has devolved to the point where the Court is the Amender. I would not describe it as a "Courtacy," since so much is still easily handled by the other two branches.

I would say that the "originalism" vs. "living constitutionalism" clash of views is overblown. Both are easily turned to the policy preference preferred by the Justice at hand.

[hairshirthedonist]

I think your "good thing" formulation can just as easily be a realpolitik way of dealing with a regrettable reality, Seb.

(Just because you don't like gunfights doesn't mean you should bring a knife.)

[Ugh]

I mean, stare decisis plays a big role in being a Justice, as does being able to marshal arguments combined with such precedent, but the idea that, especially in the Constitutional arena, the Justices are not making law just seems nonsensical.

We could have a Constitution the size of the U.S.C. and have more refined debates on what the law requires, but that's not what we have.

[wj]

The question is, was Mr Dooley correct?

"no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns"

And if so, which returns exactly?

Not to mention the question of whether the Court as constituted today behaves as it did a century ago.

[russell]

apologies if some version of this shows up twice.

IANAL, but this is how it looks, to me.

The SCOTUS is tasked with articulating what the intent of the Constitution is, relative to some legal question, when other folks have been unable to find a satisfactory resolution.

If the intent is more or less clear, it doesn't go to the SCOTUS.

So the whole thing about "balls and strikes" is, IMO, disingenuous. Balls and strikes are the easy cases, the ones where we all know where the boundaries of the batter's box is, and all we need is somebody with good enough eyesight to tell if it's in or out.

The SCOTUS is not about balls and strikes. The SCOTUS is about figuring out where the batter's box is. Or if there even is one. Or if there is even a batter. Or if a pitch was even thrown.

That's what they do.

To expect somebody to do that, without being influenced by every thing they have learned or experienced in decades of life is foolish. To claim that somebody is doing that, without being influenced by the same, is somewhere on the spectrum between disingenuous and deliberate, calculated falsehood. You can decide for yourself exactly where on that spectrum you think such claims lie.

The difference between 'living constitutionalists' and 'strict constructionists', as far as I can tell, is that the former consider what the authors' intent would be *in the historical context in which the decision is being made*, and the latter confine their imagination to what they think the authors' intent was at the time the document was written.

I leave the choice of which seems a preferable meaning for the word 'intent of the constitution' to you as well. I can tell you that the authors' assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.

Whether you want to call it 'making law', or not, the SCOTUS has enormous influence over what laws actually come to be. And to claim that they are not influenced by their own personal political stance is obviously not the case.

The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole.

That's the problem.

[Sebastian H]

"The nation is divided, so the court is divided. And is divided in a way that is not representative of the nation as a whole."

But isn't the real problem that either 5-4 split will not be representative of the nation as a whole, yet would remove huge numbers of questions from the field unless the other side (whichever side that is) can muster an amendment? The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress. Add the randomness of Supreme Court Justices dying or resigning and it gets even worse because there is a lottery like effect (even before we get to a discussion of McConnell's horrific act).

[Countme-a-Demon]

Actual baseball umpires carry out the intent of the rule book of baseball sitting on the desk of the Commissioner of Baseball, who serves at the pleasure of the owners of the country, er, sorry, I mean, the owners of the baseball teams.

The strike zone changes all of the time, bottom of the knee, top of the knee from year of year. The rules on home runs change from park to park, depending on stadium dimensions and where the yellow line is on the fence, if there even is a yellow line. The composition and manufacturing of the baseball is altered according to the whim of the owners, who for now have decided home runs and high scoring games are more profitable than low-scoring games. The height of the mound changes from time to time and even then, groundskeepers from stadium to stadium have their little biases about how to groom it juke home field advantage.

Hell, every umpire has his own bias about what constitutes a strike and a ball. If you don't believe that, try standing in the batter's box at the whim of two different umpires.

Some of this is charming to my mind when it comes to baseball.

If Ugh is in the majority on the baseball Supreme Court, games will be two hours long. If I am, they will be longer.

According to what absolute, original, God-given standard, I ask you? To my mind a guy taking time to run through his personal idiosyncracies before stepping into the batter's box is Natural Law.

Not charming when it comes to originalist judges deciding what suits their originalist interpretation of the Constitution.

If it's an interpretation, than how is it original?

The entire umpire metaphor used by Roberts is hooey, like so many of the bedtime stories we tell ourselves in America.

The Republican Party is Pete Rose. They installed Roberts and company.

So who do you think gets to place bets on baseball winners and losers from the dugout telephone?

Pete Rose.

And vice-sa and versa, as Yogi Berra might add.

[Sebastian H]

One bit of irony. And this will certainly sound a little mean spirited if you don't understand that I'm talking from despair about the state of our country.

I saw a tweet a couple of weeks ago (before the Kennedy resignation so they must have been talking about Gorsuch). It said something like "How sad it will be if our young people lose faith in the Court because of politically motivated rulings repeatedly thwarting the will of the majority".

I wanted to say something about how that already happened and Roe v. Wade launching a thousand candidacies but I didn't have the heart.

[russell]

But isn't the real problem that either 5-4 split will not be representative of the nation as a whole

The nation as a whole does not have a coherent and shared sense of what the hell we are about.

That's the real problem. In my opinion.

I wanted to say something about how that already happened

It's been happening for quite some time.

You appear to believe that Roe was some kind of watershed event, that opened the door to the undermining of what was up until that point otherwise fair-minded and well-ordered representative governance.

I think that's a pretty anhistorical view.

You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.

I think you're mistaken there, as well.

I think a case can be made that the question of abortion does not property belong to the feds.

To make that case, you're going to have to remove lots of other things out of the scope of responsibility of the feds, because the substance of the issue is not unlike a hell of a lot of other things that have long been within federal scope.

As practical matter, as far as I can tell the courts are as legitimate a venue for folks to sort out their differing interests as any other.

[Sebastian H]

"You also appear to believe that the substance of the Roe decision does not reflect the view of most folks in this country.
I think you're mistaken there, as well."

For decades about 65%-70% of the country has believed that most abortions should be illegal at some point in the second trimester. That is not permitted by Roe. About 80% of the country has believed it should be generally legal in the first trimester. About 25% of people believe that abortion shouldn't be generally illegal until the 3rd trimester (or not at all illegal). That is distinctly the minority view (about the same number of people who believe that abortion should be illegal in the first trimester).

From my perspective, the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.

[russell]

That is not permitted by Roe.

Roe allows regulation of abortion in the 2nd trimester for the safety of the mother.

How that fits, or doesn't fit, into the opinions of the 65-70% of the population who believe that "most abortions" should be illegal in the 2nd trimester, I can't really say.

That's as far down the Roe rabbit hole as you are going to drag me in this thread.

the process problem with Roe is that by making it a constitutional issue, anyone who wants to change it to what most people think is right, has to work with the extreme pro-life groups to get it done.

Dude, for "Roe" and "pro-life" feel free to insert 150 years of SCOTUS decisions about corporate personhood, or more recent decisions about guns, or any number of other topics.

The settled decisions of the SCOTUS do not reflect the will of the people in anything like a consistent way. Not at any point in time, not over time, not for any particular issue.

It is what it is. That is not their job. The courts are not obliged to follow polling results. Sometimes that sucks. It almost always sucks, for somebody.

[Nigel]

happening for quite some time...

The First Amendment has grown enormously in significance since a piece of ‘judicial activism’ a century ago:
https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/

It is an utter fiction to think that SC judges don’t make law - obviously not all of it, but a significant portion - and they have been doing so since Marbury v Madison.

[JanieM]

In the context of a lament about 5-4 decisions in relation to the will of the people, a reminder that Roe v Wade was a 7-2 decision.

[Ugh]

Brown v. Board, 9-0, was met with such vehemence that it continues to this day.

[Snarki, child of Loki]

wj: "And what good would it do if Pence was President when these judges/Justices were impeached? He could, I think, just renominate all of them."

Conviction after impeachment can not just remove from office, but also "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States"

Lifetime ban. Can't be remedied by a pardon.

[JanieM]

Ugh: Brown v. Board, 9-0, was met with such vehemence that it continues to this day.

Vehemence and popular majority support are two different things, FWIW.

This is a morass of complications.

[wj]

Thanks Snarki. I had forgotten that, if I ever knew it.

[wj]

Hardly a surprise that vehemence continues re Brown. Those who have never reconciled themselves to the 14th Amendment (or even to the outcome of the Civil War) Would be unlike to accept its application.

[Sebastian H]

"Brown v. Board, 9-0, was met with such vehemence that it continues to this day."

I haven't heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream.

[Countme-a-Demon]

"I haven't heard anyone complain about busing in at least two decades. Though if we tried to bring it back I bet a lot of progressives in cities would scream."

I expect this is an accurate depiction.

Which speaks to the depth of despair endemic to America for those deemed the Other.

It never stops.

This guy:

https://nypost.com/2018/07/05/white-man-calls-police-on-black-family-at-neighborhood-pool/

He couldn't even say he was sorry. His voting record is not in evidence but it could be anything, right?

I suspect however that if he leans progressive, he'll be voting mp in 2020, because he was publicly shamed.

America has had 242 years to get over this fucking crap.

Get over it now, because it stops now.

Or else.

[Countme-a-Demon]

Apparently, the fix was in:

https://www.balloon-juice.com/2018/07/10/trench-lawfare-open-thread-of-course-kavanaughs-a-pig-fellator-and-we-should-also-make-the-gop-deny-it/

Kennedy and his corrupt enabler son of mp's fraud and theft at Deutsche Bank need to be physically assaulted at whatever D.C salad bar they sneeze over.

This shit stops now.

Or else.

No more.

[wj]

I haven't heard anyone complain about busing in at least two decades

Of course not. Charter schools have made that moot. With an assist from "home schooling" for the real hard cases. If you can avoid public schools altogether, you don't care what their students look like.

[Nigel]

The nominee appears to believe its the President who is the judge of what is constitutional or not....
https://slate.com/news-and-politics/2018/07/brett-kavanaugh-supreme-court-donald-trump-just-handed-democrats-a-gift.html
in 2011, Kavanaugh wrote in dissent that if a president takes issue with an existing law, he can simply declare it unconstitutional and refuse to enforce it. “Under the Constitution,” he wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

[Countme-a-Demon]

I lived in a country like that once.

Apparently, I'm going to again.

[liberal japonicus]

The problem is that by repeatedly and increasingly relying on the Supreme Court for major change, it institutionally sets up conflicts to become nastier and nastier because every little win for the other side is way more entrenched than it would be for acts of Congress.

However, let's take this statement out of the penumbra of Roe (sorry, IANAL, so I'm probably using it wrong, but I couldn't resist) and talk about decisions like the previously mentioned Brown v. Board of Education or Loving v. Virginia (another 9-0 decision)? It seems like 'we' relied on the court to deal with major change because no other agent of change could step up. And the problem is not that the SC took on social change, it's that there are no other institutional agents of change in the US. (I'm not sure about that last part, but given the narrative is always 'why are we spending money on that', I hope you can see where I'm coming from)

As for progressive screaming about a reinstitution of Brown, wouldn't the screaming be because public schools can now be like this (that Hartmut flagged) and this rather than what you seem to be suggesting, that they are hypocritical?

[Nigel]

So much for institutional agents of change....

"A Court of careerists" -
https://www.politico.com/magazine/story/2018/07/11/whats-missing-from-the-supreme-court-218967

[russell]

I haven't heard anyone complain about busing in at least two decades

to my knowledge, there hasn't been busing in at least two decades. so, not many complaints these days.

i know 'progressives' who opened their homes and families to kids, and the families of kids, bused from crappy schools in poor boston neighborhoods, to the better-served schools in their nice not-poor neighborhoods. and, who maintain those relationships to this day, decades later. to everyone's advantage.

but keep on feeding the popular national resentment of those hypocritical urban liberal elites.

the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional

i suspect this goes back to jackson's comment about marshall in worcester v georgia - "let him enforce it!". and persists in the practice of signing statements,

odd to hear a SCOTUS nominee endorse it.

[cleek]

I haven't heard anyone complain about busing in at least two decades

https://www.csmonitor.com/USA/Education/2010/0324/Busing-to-end-in-Wake-County-N.C.-Goodbye-school-diversity

[JanieM]

So let me get this straight. We have a view (based in Marbury v Madison) that says that the Supreme Court is the final arbiter of what's constitutional. For some period of time we've also had a fringe lunatic view that county (?) sheriffs are the *real* final arbiters of what the constitution means (since they swear an oath to uphold it? don't a lot of people do that).

This is the first I've heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone's boss.

Jesus H. So to speak.

[Countme-a-Demon]

Supreme Court, The Presidency, Sheriffs, all of them, are the final arbiters of what the Constitution means, according to the three of them.

All three institutions sewn up by the same minority political party. And fuck them.

Meanwhile, the legislative punks of the same rump political party were in Moscow last week consulting with Putin about what our Constitution means, if anything, in the event that the latter's vassal in the White House takes a header.

Do the Russian members of NRA chapters in that country carry little Russian constitutions in their flak jackets and wave it around all the time.

Do American, and I use the term loosely, NRA reps visiting the Kremlin carry around both the American and Russian Constitutions and wave around one or the other according to which side of their stinking, vermin pig mouths they are talking out of?

There are Russian submarines skulking near the mouth of the Chesapeake and offshore of Mar-a-Lago that will serve as getaway cars for the republican vermin when the jig is up.

I'm having this eerie premonition recently that we are unwitting players in a game with unrevealed rules and no stated goal, like those movies in which the players think they are attending their own birthday party or a game night with the neighbors and when the dice are rolled and the blindfolds removed, it is announced to the victims ... us ... that America has just been a prank and we are trapped in an abattoir and dinner is us .... or the skies for months have been filled with odd cloud formations and dark portents and one morning we wake up and reptilian-type interstellar aliens are feeding on our pets.

What if "Red Dawn", the movie that fucking conservatives thrilled to, was really about what those cuck conservatives were going to pull off one day.

We can shoot our way out of this, but it needs to start soon.

[Countme-a-Demon]

http://theweek.com/articles/783966/most-useless-part-resistance?utm_source=dlvr.it&utm_medium=twitter

[hairshirthedonist]

https://fivethirtyeight.com/features/the-abortion-debate-isnt-as-partisan-as-politicians-make-it-seem/

[wj]

Re HSH's link, I think the only way out of the box we have gotten ourselves into is to change something, so that the most extreme members do not drive the selection of candidates. For example, California is trying "top two open primaries" to achieve that . . . with a little success but not a lot.

The other alternative that occurs to me is to try something like mandatory voting. A big part of the reason that the extremists drive candidate selection is the very low turnout in primary elections. The downside of that, of course, is that you get a lot of very uninformed people voting -- on who knows what basis. On the other hand, maybe it would be worthwhile seeing what a different set of problems look like.

Anybody with another option, please share.

[hairshirthedonist]

Mandatory voting might provide the impetus for at least some people to become more informed. I don't think the amount of "catch up" they'd have to play would be all that much to meet the average levels of information of the people who are already participating.

[wj]

Taking this only slightly sideways (since we are talking about SCOTUS), why does everyone seem to be almost totally focused on Senator Collins when it comes to blocking Kavanaugh? It seems like McConnell would have less leverage on Murkowski. After all, she has already demonstrated that the far right can primary her (successfully!) and she can still get reelected running as an independent.

[Tony P.]

wj,

It's because Collins has fooled people into considering her a "moderate" the same way Paul Ryan fooled people into considering him a policy wonk.

As J.R. Ewing once pointed out, "Once you can fake sincerity, the rest is a piece of cake".

--TP

[cleek]

why is anyone seem focused at all on Collins or Murkowski or any of them? barring a surprise pedophilia conviction, Kavanaugh is going to be confirmed. it's a done deal. it became inevitable Nov 8, 2016.

[wj]

Cleek, because even a slim chance is still a chance. (Would you have expected McCain to stop the bill to repeal Obamacare? Seriously?) When it's all you got, you try for the long shot.

[Tony P.]

Kavanaugh may be a done deal, but the re-election of GOP senators is not. Making them OWN their support of He, Trump's toady is still useful.

--TP

[Countme-a-Demon]

https://www.thedailybeast.com/brett-kavanaugh-thinks-banning-assault-rifles-would-be-like-banning-speech?via=newsletter&source=DDMorning

That's funny, because I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.

[russell]

From Kavanaugh's opinion, cited in the count's link:

There is no meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles.

Say that from 100 yards away.

[bobbyp]

....so that the most extreme members do not drive the selection of candidates.

Given how politics ACTUALLY takes place in this country this "terrible" outcome, I would aver, occurs mainly on the right side of our lamentably constrained political spectrum.

As an aside, top 2 primaries are just another stupid way to try to take politics out of, well, politics. Dumb and anti-democratic. It's hard to beat that.

[wj]

I view bullets fired automatically out of the barrels of assault weapons as protected, free political speech in the shaping of policy.

Which would clearly mean that Assault with a Deadly Weapon would cease to be a crime. (Although simple assault, ie without a weapon, could still be a no-no.)

[Hartmut]

There are places in the US were toy guns are illegal but real ones aren't.

[Fossil Fuel Industry]

There are places in the US were toy guns are illegal but real ones aren't.

Cops find it somewhat embarrassing when they shoot someone with a toy rather than a real gun.

[CharlesWT]

Fossil Fuel Industry

Forgot to change that... :}

[Snarki, child of Loki]

wj: "The other alternative that occurs to me is to try something like mandatory voting."

First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.

It would work great, if mandatory voting had been instituted 100 years ago.

Quick! To the Time Machine!!

[wj]

First result: voters enraged by being told that they MUST vote immediately voting out the party that imposed mandatory voting.

Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.

[liberal japonicus]

Charles WT, could I ask you not to change your nick like that again? As my mom used to say, it's all fun and games until someone gets their eye poked out.

I realize that this is not something we've never said was wrong, but it seems that you changed your nick to make an argument, albeit humorous, that conforms with your libertarian outlook. Beyond any interrogation of your motives, if it becomes a thing, then mods are going to have to spend time going into the dashboard to figure out who is saying what. So please don't do it again. Thanks.

[bc]

Delurking.

What Seb said. And most of what russell said. As usual, he's being reasonable.

I even agree with Tony P. on Kavenaugh's statement. Good grief. But you lost me,Tony, when you said "Franken."

What I would ask to the general body of "originalist" detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation? Is it Ugh's "anything goes in light of the changing standards of decency of society?" Not that I hear Ugh necessarily saying that is the way it SHOULD be vs. the way it actually is.

I know Scalia is probably anathema here, but do yourself a favor and read his speech on this topic and then decide for yourself. I don't agree with every decision he made. I know you don't either. But the speech is entertaining and thought provoking regardless of where you fall on the spectrum of Constitutional interpretation.

We used the amendment process until 1971. Then Roe happened. Not commenting on Roe per se, but the ERA was proposed (just prior?) and then never was adopted.

If we don't go back to the amendment process, then we will be ruled on some issues by an unelected council of 9. Unless someone disagrees, which leads me to . . .

This is the first I've heard anyone saying that the president is the last word. Kind of like abolishing the reformation and reinstating the Pope as everyone's boss.

Or going back to Thomas Jefferson and Abraham Lincoln. Hamilton liked judicial review, Jefferson not so much. Jefferson liked the states deciding (funny thought that, states being sovereigns) and espoused the three branches being equal. I don't know that he would have said the President has the last word, but he very well might have said all three branches have the last word.

I like judicial review as a general proposition, but I think that a situation could come up of sufficient import that a president or congress or a state could simply say "no" as a matter of principle. Wait, some of those situations have actually come up . . .

I can tell you that the authors' assumption at the time the document was written was that only adult white men, preferably property owners, would vote. Take it from there.

But the document has been amended. For voting rights, the question for originalists would be 1920 for women, and the 60's? for the voting age, 1868 for the 14th A, etc. You are not stuck with 1789 (unless it hasn't been amended).

I agree, too, that each Justice will be influenced by his/her life experience but that doesn't mean we throw the whole thing to the wind. Unless the Constitution is at least somewhat "fixed", and we start with that proposition, the whole system of government falls apart at least on an intellectual level, IMHO. That it has not already is that, as some have said, many, many issues do not come before the court because there is general agreement among the people.

[CharlesWT]

So please don't do it again. Thanks.

No problem. I've only done once or twice before over the years.

[JanieM]

I don't know that he would have said the President has the last word, but he very well might have said all three branches have the last word.

And if two of the branches disagree about what the last word should be, then what? A shooting war?

I don't see how it can work without some entity having the last word. Speaking as a gay person, I would prefer it not be the majority of the electorate.

[bobbyp]

What I would ask to the general body of "originalist" detractors is what criteria, then, governs SCOTUS decisions? What is your theory of interpretation?

In reply, I would offer this and this.

Going a bit further afield Shelby County or Bush v Gore would seem to indicate that the practitioners of "originalism" don't have too many scruples when it comes to tossing it aside when deemed necessary.

We used the amendment process until 1971.

We have used a variety of approaches to deciding vexing constitutional issues, up to and including a bloody civil war. So what are you trying to say here....that women's and gay rights should have waited for an Amendment? Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way.

It always has.

Thanks.

[hairshirthedonist]

Forgot to change that... :}

I knew that was you. ;^)

[Sebastian H]

"Given a fairly evenly divided polity split along increasingly ideological lines, politics will work it way"

Given a fairly evenly divided polity split, wouldn't it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?

[JanieM]

Given a fairly evenly divided polity split, wouldn't it make a lot of sense to not make lots of constitutional changes until one of them can gain an enduring and large majority instead of empowering lots of hacks to elevate their choices to super majority-level protections without ever getting an amendment through?

So in some alternative history where the Civil War didn't happen, equal rights for African-Americans should have waited until a large majority was in favor?

[JanieM]

Never mind, of course, the preliminary step of abolishing slavery.

[JanieM]

I mean, what's the point of the Bill of Rights if no decisions can be made in relation to whether someone's rights have been violated until a super-majority of citizens are in agreement about the violation?

[wj]

Part of the point of the Constitution was to protect the nation, and the people, from the well-known excesses of mob rule. That is, it was a recognition that just because a majority hold an opinion that doesn't necessarily mean that it should be enforced on everyone. Which is why we occasionally get Supreme Court rulings that are a long way from achieving majority support.

What's rather interesting is how a Court ruling which is nothing like a majority opinion at the time, can rapidly become one. Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today). Would that have happened, in anything like that timeframe, absent Supreme Court rulings? I beg leave to doubt it.

[Tony P.]

bc: But you lost me,Tony, when you said "Franken."

bc,

Nice to see you again. I have missed your particular brand of wrongness :)

If Al Franken puts you off, can I assume that you find He, Trump deplorable? Or are you, like Marty, willing to overlook his 10xFranken^2 moral shortcomings in light of His "(Republican) policies"?

Since you ask "what criteria, then, governs SCOTUS decisions?" I have to ask whether you mean "what criteria should" or "what criteria do" govern SCOTUS decisions. And when the decision is 5-4, how sure can we be that "SCOTUS" got it right by whatever criterion you (or I) consider "right"?

It amazes me that both conservatives and liberals can make a big fat hairy deal about who gets to be a Justice, if The Law is so clear-cut that there is a single correct way to interpret it.

I mean, if He, Trump's "base" doesn't believe that a Federalist-Society-approved nominee is "automatically" a vote against Roe (and unions, and voting rights, and the ACA), then why bother stealing a nomination from Obama? why object to He, Trump picking Kennedy's successor by drawing names from a hat? why make believe that lying flattery (of He, Trump no less!) is not clear proof that Kavanaugh has no claim to "judicial temperament"?

--TP

[hairshirthedonist]

The problem with originalism is originalists (and that they think they’re divining something more meaningful than non-originalists). Language changes, circumstances change, and there was some degree of amibiguity on day one. Originalists overestimate their own ability to navigate their way through these obstacles to arrive at the one true original intent (as it should apply today). Maybe they should hold a seance.

[russell]

What is your theory of interpretation?

The question I ask is, what is the principle being expressed?

It's like reading the old Testament, except maybe adjusted by an order of magnitude in terms of the time scale.

The Torah tells me I shouldn't muzzle the ox while it's threshing. I don't have an ox, and neither I nor my hypothetical ox have anything that needs threshing.

Nonetheless, I understand the principle.

It ain't rocket science. And it is by god as honest as any other approach, and far more so than folks who say it doesn't apply to me because I have no ox.

good to see you around the way!

as an aside, I have to ask: anybody besides me wondering if the freaking potus is being run by vladimir putin?

might be so, might not be, but it sure as hell is among the simpler explanations.

Numquam ponenda est pluralitas sine necessitate

[Sebastian H]

I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?

[russell]

the sad thing is, if that's what's going on, i'm not sure he even knows it.

[Sebastian H]

I think we all know that sometimes a judge knows what he wants to do and backfills it in suspect ways. With originalists you can perceive that hypocrisy in certain ways with the text.

So I think the illuminating question is "how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?

[russell]

I think a more illuminating question might be if you are a living constitutionalist, how do you know which times the originalists have gotten it wrong as opposed to the times they get it right?

but not vice versa?

because the strict constructionists are always so rigorously faithful to the text?

what does a 240 year old document mean? if your answer is 'just what it says', you beg the question.

[liberal japonicus]

Consider how incredibly short a time it took to go from homosexual behavior being flat illegal in a large swath of the nation (pre Lawrence v Texas) to gay marriage being not only legal but having 2/3 majority support (which it does today).

That's because homosexuality cuts across race and class boundaries. As an example, Tim Cook was not going to suddenly reveal that he was African American and he was born and raised in poverty. Or that he was a single mother. In that sense, there was already this built in portion of the population that would, when the time was right, be able to act in ways that would normalize it, imho.

[Countme-a-Demon]

"anybody besides me wondering if the freaking potus is being run by vladimir putin?"

Yes. 63 million Americans who voted for him and they like it. He announced to them and the country in a campaign stop that he was requesting the Kremlin's help in outing Clinton's emails.

Republican Party politicians know it and are fine with it.

As to when some right should become constitutionally ratified, it took several hundred thousand years before a suitable majority came around to the idea of free speech. Before that, everyone seemed satisfied with the "STFU or we'll cut your tongue out rule".

They did polls in 900 B.C. and cautious conservative shitheads said, "look, I don't like having my tongue cut out any more than the next guy, but forbidding the majority to do it seems like regulatory overkill to me. This interview is off the record, I hope."

Now it took only some 400 hundred years from the invention of the gun to get that right enshrined in the Constitution, because shooting people is so much cooler and efficient than cutting their tongues out and more fun than talking and the written word, for that matter.

Both of course were way more important and mutually agreed upon than say, giving niggers and wogs any rights. Or those dickless creatures, women, and even now I'd say a sizable minority is not fully on board with any of those more recent innovations. Seems we were hasty, I spose in giving those human beings any rights.

Which is why I favor telling conservatives to STFU and then cutting their tongues out.

Because the human race with them dragging their heels on every fucking thing is full of dog shit.

[Sebastian H]

Russell, I think you're misunderstanding me. I'm asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don't agree with from the Supreme Court. They think that ruling is wrong. Why do they think that? One of their big tropes is "society has changed". Can it change in ways that disagree with their favored political outcomes? How would they know that has happened rather than "we just don't happen to have 5 votes today"?

[russell]

So I think the illuminating question is "how can you tell the difference between well reasoned and backfilled motivated rulings in a living constitutionalist?

Is it consistent with the principle that is expressed in the text, or not.

Ask me 100 more times, and that will be my answer.

live by the letter, or live by the spirit. if you live by the spirit, you are vulnerable to taking liberties with the text. live by the letter, you are vulnerable to straining out a gnat and swallowing a camel.

which suits you better? which risk seems less harmful to you?

that's the path you should take.

if folks prefer the letter of the law, that's fine. just don't tell me it's any more honest or authentic of a reading than the spirit of the law.

it's not.

my approach to interpretation is: what is the principle being expressed in the text?

it's a perfectly reasonable approach.

[Countme-a-Demon]

When Abigail Adams protesteth too much that American citizens with vaginas should have the right to vote, and hubby John Adams said "Not gonna happen, cupcake, the big swinging dicks down at the bird and bee ale house won't have it" she should have used the full force of the already ratified Second Amendment and shot him dead in his sleep, and then paid a visit to the alehouse and taken care of business there too.

One common nickname for a shotgun is "The Convincer". Seems more fittingly First Amendment.

By the way, the naming of guns has always been a thing, but did you know there is now a trend in America of naming new-born children with gun-like names, like "Wesson" and "Ruger", and "Bullet".

In a few short years, kids with normal politically correct parents and names will be sitting next to kids named "Trigger", and "Shooter" in study hall, and maybe have a heads-up on which spawn of republican subhuman vermin may be about to slaughter them.

"Yes, Boltaction Shuvulski was a quiet sort and kept to himself pretty much. He occasionally smelled of gunpowder, but other than that, I can't recall any red flags, well, except for the red flags in his yard, and on his truck and on his t-shirt."

[Countme-a-Demon]

Actual people are not people anymore.

Corporations, money, algorithms, and guns have personhood.

[JanieM]

Language is not mathematics; it is a slippery thing at the best of times. The law is also not mathematics, including the Constitution. Life itself is slippery, complicated, and rife with gray areas and paradoxes.

I.e., there is ample room for interpretation.

My work involves numbers, lots and lots of numbers, all related to cost of living in cities all over the world. And guess what: despite what I just implied about math, even numbers are slippery! You have to make assumptions and trade-offs, and figure out how to compare unlike things as best you can. Since our numbers are used for payroll purposes, there are issues of fairness as well. Even here there's plenty of room for interpretation and disagreement.

I am too tired, both literally and in terms of my ability to engage with this topic, to draw the explicit connection between all this slipperiness and all these shades of gray on the one hand, and the debate about originalism vs living constitutionalism on the other, but maybe it's obvious enough. I feel like the argument is a weird echo or mirror of exactly the kind of thing all the justices do all the time -- whatever else they may *say* they're doing.

Maybe it's just my political bias, but I get the sense that the originalists are more hypocritical, and I would respect them more if they would just be honest about what they're really doing. Kind of like I'd respect the likes of Susan Collins more if she'd just stop obfuscating and tell the truth.

[JanieM]

By the way, Ugh, from the OP:

He (and for all but 3 justices it has been "he")

Um, am I too tired to interpret sentences correctly, or is that a typo? Or are you from one of those tribes that doesn't count beyond three?

[JanieM]

Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?

[Sebastian H]

"Is it consistent with the principle that is expressed in the text, or not."

I think that is a fine statement of intention. It doesn't really seem that is how the judges we think of as living constitutionalists operate.

For example from the 5th amendment "nor shall private property be taken for public use, without just compensation".

Justice Stevens, Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer think that means that taking property via eminent domain to give to a private developer doesn't violate that. (Kelo v. City of New London). That group includes zero textualist, and all of the living constitutionalist justices of the time.

[wj]

If you take private property via eminent domain, and don't pay the owner for it, then you've violated the 5th Amendment. If you pay for it, the only problem is with determining "just compensation." If you can make a case that the government paid market rate, again you're OK.

Now the "giving to another private party" part, once the government owns it, is a different issue. It's probably stupid if the transfer isn't at market rate. Stupid, possibly in violation of various laws (depending on where it is), . . . but not unconstitutional.

[Sebastian H]

Wj, well the full phrase is "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'"

I don't think your reading really gets it (certainly not in the spirit of reading that russell is talking about). You can take property FOR PUBLIC USE if you pay for it. Making a park is public use. Making a freeway is public use. There are a very large number of public uses. But not everything is a public use. Giving it to some other private owner is almost the definition of "not public use".

[Nigel]

Russell, I think you're misunderstanding me. I'm asking how a living constitutionalist knows that a ruling is incorrect. They see a ruling they don't agree with from the Supreme Court. They think that ruling is wrong. Why do they think that?

One could ask exactly the same question of ‘originalists’.

Look at their actual decisions, rather than the philosophical film flam they claim as principle, and is is pretty well impossible to discern anything other than adherence to present day conservative dogma.

It is perfectly reasonable as a matter of principle to object to a politically activist court, but to claim that one side is somehow purer than the other in this respect has little or no basis.

[Hartmut]

Wondering, a bit related to my 11:04: how does an appeal to the strict text of a document written 240 years ago help us with questions about, say, the internet?

I'd say, ask an orthodox rabbi. E.g., a light switch is the modern equivalent of fire, so do not flip it on the Sabbath. ;-)

[Nigel]

We used the amendment process until 1971. Then Roe happened.

That rather elides the gutting of the 14th Amendment by the Supreme Court following the Slaughter-House Cases in 1873.

The constitution was written to accommodate slavery; the 14th was clearly intended to remedy that. The Supreme Court substituted its will for that of a supermajority of the country.

[russell]

I'm asking how a living constitutionalist knows that a ruling is incorrect

first, you appear to assume bad faith on the part of 'living constitutionalists' as a group. maybe put that assumption aside.

second, your displeasure with 'living constitutionalists' seems highly correlated with specific decisions you disagree with. some of which i also disagree with. it may be more useful to debate the decisions, rather than the virtue or lack of virtue of an entire approach to interpret a text.

third, i can't speak for 'living constitutionalists'. bc asked how folks who are 'originalist detractors' would interpret the text. i spoke up because i fall in that category, and my answer was that i interpret the text by trying to understand the underlying principle that it expresses. which seems, to me, a sensible approach to understanding any text that comes from a social or historical context other than one's own. or even ones that do come from one's own.

fourth, there probably is no correct answer to your question, because as far as i can tell there is no universally received definition for what a 'living constitutionalist' is, nor any standard or agreed-upon rule by which people who are labeled as such approach interpretation.

'living constitutionalists' seem to be whoever a self-described originalist says is a living constitutionalist.

so not only can't i speak for them, they can't speak for them. because there is no 'them'.

i think most interpreters of the constitution would say a ruling is wrong if it violates the intent of the constitution. originalists, as far as i can tell, want to limit the meaning of 'intent' to be how that intent would be expressed in the late 18th C. other folks seek to understand what the underlying principle of the language is, and then apply that to their own place and time.

[liberal japonicus]

I think I have recommended Lawrence Solan's The Language of Judges, where he points out multiple cases where interpretation of linguistic facts is rarely an attempt to find something and more often a general attempt to 'backfill' legal decisions to give them an air of plausibility. The book is a bit old (1993) and this (open source!) recent paper by Solan
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026373
discusses some things that weren't possible in 1993, like the use of corpus analysis to justify decisions. More of his papers are here
https://works.bepress.com/lawrence_solan/

[cleek]

originalists, as far as i can tell, want to limit the meaning of 'intent' to be how that intent would be expressed in the late 18th C.

modulated by the actual result they want to achieve, however.

that whole "well-regulated militia" thing, for example gets happily overlooked when the originalist™ wants to ensure every school shooter gets a Republican-brand gun.

[Countme-a-Demon]

Black and female sufferage, anal sex, and abortion were all things in 1789. All of them were natural law, in that they were real-life happening things and desired, albeit with contention, for ages.

Automatic and semiautomatic weaponry, let alone in the hands of underaged citizen schoolhouse shooters, were not. They didn't exist except maybe in Ben Franklin's dreamy imagination and even then someone would have told him to go fly a kite.

Only the latter, however, is truly intended and originalist according to nowadays shitheads.

[Michael Cain]

Somehow I just assumed that it got established via an initiative, rather than by the legislature. Comes of being from California I suppose.

I had the same thought, being from Colorado. You get used to the idea that if the legislature ducks an issue, it'll still get decided. Colorado's legislature referred a redistricting commission for US House seats to the voters this year rather than face what might happen by initiative. There are rumors conservatives in Arizona were scared by the results of the most recent marijuana legalization initiative there so will legalize next session in order to maintain some control of the process.

[bobbyp]

I should think our "originalist" friends should go back and thoroughly review the politics surrounding Marbury v Madison and get back to us.

Now I could be as idiotic as many so-called conservatives and simply ask, "Where does it say 'judicial review' in the Constitution?" CHECKMATE LIBS! But I shall abjure that persuasive line of argument (/sarcasm).

Another interesting article on this topic may be read here.

[hairshirthedonist]

Originalists and (textualists) engage in the conceit of making a big deal out of reading the words in the constitution and trying to understand them, as though the people who don't bluster about doing so make wild guesses irrespective of the words, likely in a ways that conveniently align with their preferred results.

I'm going to start calling myself an "alternating-step walker" and will criticize the inefficient manner in which people who don't call themselves that must walk. They must be doing something else, and it must not work very well. Otherwise, they'd be alternating-step walkers like I am.

The whole thing's fncking silly.

[Countme-a-Demon]

The Nowadays Shitheads.

Not a terrible band name.

[JanieM]

What hsh said at 9:10.