Trump outrage of the day

[JLee]

Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.

[FIPurpose]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

[LennStar]

I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.

If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.

That is generally true of courts, especially higher ones.

First of all the people in there are often quite old, and with age often comes conservatism.
Second, people in a higher court are always those who profited from the existing system, so they see it in a better light than most people.
Third, Judges don't want to set a precedent. It's more work and more enemies.

Keep in mind that all those things work in a subconscious way and as such are hard to pin down, not to speak of activly being aware and countering them in your daily work.

[ctuser1]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

[Plina]

I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.

If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.

That is generally true of courts, especially higher ones.

First of all the people in there are often quite old, and with age often comes conservatism.
Second, people in a higher court are always those who profited from the existing system, so they see it in a better light than most people.
Third, Judges don't want to set a precedent. It's more work and more enemies.

Keep in mind that all those things work in a subconscious way and as such are hard to pin down, not to speak of activly being aware and countering them in your daily work.

If they were appointed until retirement age, they would not be that old. Here they have to retire at latest at 67 years. Some keep working in the judicial system but not as ordinary judges but as temps. The job of the the judges at our supreme court is to set precedents. If the judges are worried about making enemies, I would be seriously worried about your system to appoint judges and the independence of your courts.

[John Galt incarnate!]

Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Kennedy's Libertarian streak influenced  him to rule as he did in Lawrence and Obergefell which infuriated Scalia and social conservatives.

Republican John Paul Stevens became increasingly attuned to liberal causes during his tenure on the Court.

 He attributed his metamorphosis to his keen appreciation of the great number of people significantly affected  by the Court's rulings.

[John Galt incarnate!]

Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.

There's not much comity among the Senators anymore.

[Wolfpack Mustachian]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

[Wolfpack Mustachian]

Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.

It is interesting that there was a time when people weren't as partisan and voted for justices based on qualifications and not just partisan politics. We are quite divided now.

[John Galt incarnate!]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

[ctuser1]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

My problem with ideologies is when they becomes absolutist - as judicial originalism has.

Un-elected Justices, appointed by minority presidents now have majority on the court. Some of them have decided (unsupported by the plain meaning of the constitutional text) that certain non-obvious extensions of the plain meaning of the words in the constitution are implied and hence sacred, even beyond the reach of democratically elected governments (e.g. "money" == "speech").

Originalism used as a secondary supporting argument on top of other philosophies are likely perfectly fine. Using Originalism as the primary schtick is problematic - because politicians misrepresent. They do so now, and they did so hundreds of years ago when the constitution was framed. They will write or say what they needed to in order to achieve whatever ends they had in mind (and there were enough of dueling ends different framers of the constitution had). What you do have, unquestionably, is the text of what they wrote. Why not restrict themselves within that and leave the rest to the legislature??

Some originalists try to get around this by saying they anchor themselves in the plain text meaning when the constitution was framed. This would be okay if this was not applied hypocritically. The framers of the constitution clearly did not "mean" M18 when they said guns. Did they intend to include those when they framed the constitution? Did they intend nuclear ICBMs? I am not sure we have any definitive way to know. So why not constrain themselves within the text and leave those complicated considerations to the legislature??


What we have now is tyranny of the minority. I'm not sure that is what was intended by any "framer". The framers were very "liberal" for their time. So there are just as many ways to interpret the constitution in liberal ways when you apply "originalist" lens to it - just as they are of interpreting it in "conservative" ways. When a partisan ideological entity pleads their case as one of many such voices - it is great, that's what the freedom of speech is there for. When they attempt to hijack the nation at the behest of a minority - that becomes a problem.

[FIPurpose]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

[former player]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

[Wolfpack Mustachian]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

[John Galt incarnate!]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."



 

[EscapeVelocity2020]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.  They did not predict the future and could not have imagined what social issues face America today.

When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute? Does prohibiting discrimination based on "sex" now include gay and transgender people? How should we apply today such vague, 18th-century language as "due process," "cruel and unusual," and even "liberty"? Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process. But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people. The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest. Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience? Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.

William Falk

[John Galt incarnate!]

 I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

"We are not final because we are infallible, but we are infallible only because we are final." Justice Robert H. Jackson

The Court's rulings are powerful due to their finality which is salutary.

The finality of the Court's opinions and precedents is necessary  because it fosters   a body of fundamental law that is stable, predictable, and reliable, the indispensable requisites of the rule of law.

[Wolfpack Mustachian]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.  They did not predict the future and could not have imagined what social issues face America today.

When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute? Does prohibiting discrimination based on "sex" now include gay and transgender people? How should we apply today such vague, 18th-century language as "due process," "cruel and unusual," and even "liberty"? Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process. But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people. The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest. Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience? Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.

William Falk

Sure, there is certainly validity in the fact that the founders left things sometimes deliberately ambiguous and of quotes such as the one you mentioned of Madison. However, even the most ardent living Constitutionalist could hopefully see that at some point, you would get so far beyond what was written that you're not interpreting anything - you're writing what you want into it (at least I hope they would agree that you could get there, otherwise, they are worse off than I thought). The issue isn't that originalists as I understand it and as I lean believe that 100% perfectly every time you can think, what would all of the founders have perfectly meant here. It's just that they lean towards looking at things from the standpoint of when they were wrote, what they really meant, whereas living constitution people lean towards the side of more of reinterpreting it for the ages. Sure, could you go to extremes either way? Absolutely. Does the simplicity of at least the arguments of originalists (if not their interpretation) mean that they are inherently flawed - certainly not.

[FIPurpose]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

We have juries that require unanimous decisions, and even in hotly debated scenarios they tend to make a decision most of the time. Right now the decisions that are 5-4 are basically winner-take-all, the author of the decision gets to write all of the precedent that gets used in future cases and direct the country's legal decisions.

There are countries whose highest court must make unanimous decisions. Either that comes through extended deliberation, finding what middle ground there is, making trade-offs. We need something that ends this lifetime power cliff at the 50% mark.

[John Galt incarnate!]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.
They did not predict the future and could not have imagined what social issues face America today.


I do believe that the Constitution "lives and breathes." When I argue with those who say it doesn't or shouldn't I say to them: "Why then, did the Framers provide for amending the Constitution?" In the natural world things that live and breathe
get taller, bigger, longer, etc. The Constitution of 2020 is longer  than    when drafted, a metaphorical manifestation that it is a living, breathing document.There are also Court-established, fundamental  rights not enshrined in the Constitution that are just as foundational to liberty as the enshrined rights.


 

When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute?

Under Heller, "Arms" means arms that are in common use such as the AR-15 and its variants.


Does prohibiting discrimination based on "sex" now include gay and transgender people?

Yes, but currently there is more protection  for rights of gay people than for transgender people. I expect litigation of issues of a transgender person's rights among  future  litigation Gorsuch mentioned  in Bostock.


How should we apply today such vague, 18th-century language as "due process,"

The long-standing  essence of "due process of law" is a person's  opportunity to receive notice of actions the government is taking against them and to prepare for and present a defense in criminal matters or counterargument in civil matters.

 (See Judge Friendly's stellar  explication of the meaning of due process of law).


 "cruel and unusual," and even "liberty"?

Under the 8th Amendment, "cruel" means barbarous or torturous such as execution by pouring molten lead into the eyes, nostrils, ears, and mouth of a condemned convict. "Unusual" means a disproportionate punishment such as a $10,000 fine for spitting on the sidewalk or a 30-year sentence of a person for stealing a bicycle (no prior convictions).

Here is the meaning of liberty under the 14th Amendment's Due Process  Clause. 

Poe v. Ullman (1961)

Justice Harlan's Dissent

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.

This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,...and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Due process has not been reduced to any formula; its content cannot be determined by reference to any code.The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.


Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process.

I largely disagree.  For instance, under the Exceptions and Regulations Clause Congress has power to change the "appellate Jurisdiction" of the Supreme Court. There is NO ambiguity about this power; it is as plain as the nose on one's face.

But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people.
The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

Construing constitutional guarantees as written preserves them and effectuates their permanence. (See my signature line).

Here is information about the two  oaths taken by justices of the Supreme Court:


"Unlike the Presidential Oath of Office, the wording of the Supreme Court Oath is not explicitly defined in the text of the United States Constitution. However, according to Article VI of the Constitution:"

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States."
In 1789, Congress sought to remedy this omission by drafting an official oath. This first version was used until 1861. The text was short, a single sentence. It read:

"I do solemnly swear (or affirm) that I will support the Constitution of the United States."
The text now reads:

"I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

This office, much more specific and lengthy than the original, is now used by every federal office investiture except for the office of the President.

The Second Oath
Appointees to the Supreme Court Bench must not only take the oath listed above, but a second oath. This statement is called The Judicial Oath. The Judiciary Act of 1789 established the federal judiciary. The Act set the number of Supreme Court Justices at six (five Associate Justices and one Chief Justice). It also mandated that for the Supreme Court Justices to begin serving, they must swear a second Oath of Office. The original text of this was:

"I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."
This oath was used until 1990 when the Judicial Improvements Act replaced the phrase beginning with "according to the best of my abilities..." to "under the Constitution." This language proved reasonably more effective in tying the decisions of the judiciary to the authority of the United States Constitution.

Frequently, Supreme Court Justices have elected to take a Combined Oath which brings the two affirmations together in one statement.

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest.
Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience?

Every human has their predilections and judges and justices do observe differing modes of constitutional adjudication. It cannot be otherwise.

 Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.
William Falk

Have you read the list of liberty-enhancing precedents I've posted a few times?
It starts with Meyer and ends with Obergefell. The list is a *continuum of rationales, transformational stepping stones that form a path of the individual liberty of family matters lived by free people in civil society.

*My version of Justice Harlan's   "rational continuum" is his dissent in Poe.

[ctuser1]

Under Heller, "Arms" means arms that are in common use such as the AR-15 and its variants.

Scalia and other justices overturned 200 years of jurisprudence to arrive at their fantastical decision that the commonly understood meaning of the plain text does not matter.

One such unanimous decision that 5/4 Heller overturned:
https://en.wikipedia.org/wiki/United_States_v._Miller

I'm not sure this is in keeping with your claim that "originalism" as practiced by the federalist society members is good for stability.

The actions of the "originalists" appear very reactionary to me on the merits of their decisions alone.

[Wolfpack Mustachian]

Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

We have juries that require unanimous decisions, and even in hotly debated scenarios they tend to make a decision most of the time. Right now the decisions that are 5-4 are basically winner-take-all, the author of the decision gets to write all of the precedent that gets used in future cases and direct the country's legal decisions.

There are countries whose highest court must make unanimous decisions. Either that comes through extended deliberation, finding what middle ground there is, making trade-offs. We need something that ends this lifetime power cliff at the 50% mark.

The correlation to criminal juries is an interesting one. I still don't think that the highly contentious issues would be unanimous, but I may be wrong.

That being said, I'd be interested in how you think the nuts and bolts of such decisions would be made. To me, if it happened, the most logical thing would be for it to come down to the states making legislative decisions and no sweeping national verdicts - so for gun control for instance, previous state laws that the SC struck down for significant limitations on guns in places like Chicago would be allowed, but national legislation would not be? Also, who would be the arbiter of said decisions?

[former player]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."

But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

[John Galt incarnate!]

Sure, there is certainly validity in the fact that the founders left things sometimes deliberately ambiguous and of quotes such as the one you mentioned of Madison. However, even the most ardent living Constitutionalist could hopefully see that at some point, you would get so far beyond what was written that you're not interpreting anything - you're writing what you want into it (at least I hope they would agree that you could get there, otherwise, they are worse off than I thought). The issue isn't that originalists as I understand it and as I lean believe that 100% perfectly every time you can think, what would all of the founders have perfectly meant here. It's just that they lean towards looking at things from the standpoint of when they were wrote, what they really meant, whereas living constitution people lean towards the side of more of reinterpreting it for the ages. Sure, could you go to extremes either way? Absolutely. Does the simplicity of at least the arguments of originalists (if not their interpretation) mean that they are inherently flawed - certainly not.

How should  a justice rule when pressed to establish  a particular new right when there is no nexus between the desired  right  and the words of the Constitution?

Should  they invoke judicial restraint, and consequently, in deference to Congress and State legislatures wait for those bodies  to exercise their power to enact the new right?

Or should the justices  themselves exercise their power to establish the new right "even if the broader public disagrees and even if the legislature refuses to act"?

If the justices  do so  is their  exercise of judicial power an undemocratic usurpation of the legislative power   that "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves"?

The competing arguments are clearly  presented in Obergefell.



OBERGEFELL et al. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al. 2015


Justice Kennedy delivered the opinion of the Court.

There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate.

The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage.

In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.

An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.


Justice Scalia, with whom Justice Thomas joins, dissenting.

 I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

 The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

 So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

[John Galt incarnate!]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."

But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

Here's an even  stickier wicket for the most adamant originalists:

Under the First Amendment's Religion  Clauses "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Suppose I establish the "Sect of the Moon Worshipers."

One of its rituals is to sacrifice the first born of any congregant on any  night the moon is full.

Doesn't no  mean that the Free Exercise Clause protects the sacrificial ritual?

"Squirm you terrible, wrongheaded originalists."

Ha ha!

[PKFFW]

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Or to put it another way, when they believe they can somewhat abrogate personal responsibility for their decision by being simply one in many, they disregard the Constitution and decide an issue based on the way they personally want the world to be.  When they feel they can not do so, they more carefully consider what the Constitution means and how it actually applies to real people.

An interesting situation for a country to be in when 9 people hold such power over the lives of 300 odd million.

[nereo]

I think we’ve strayed off-topic for this off-topic topic.

[FIPurpose]

I think we’ve strayed off-topic for this off-topic topic.

Haha we've made it to the point of the election where I try not to think about the election for the next couple days.

[GuitarStv]

The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

Apart from maybe WWII, has the US Air Force been used for defence?  The role it seems most often to take is an aggressive foreign role, not a national defensive one.



Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."

But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

[OzzieandHarriet]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

[Feivel2000]

Slowing the bus down, maybe trying to push the bus from the road?

I guess an appropriate response would have been to open fire with semi-automatic guns.

[LennStar]

Slowing the bus down, maybe trying to push the bus from the road?

I guess an appropriate response would have been to open fire with semi-automatic guns.

As minimum they all should lose their driver's license since they are apparently unfit for driving safely, if you build a blockade on a highway.

[jim555]

It is domestic terrorism, using forceful means to interfere in the election.  Nazi brownshirts of 2020.

[OtherJen]

It is domestic terrorism, using forceful means to interfere in the election.  Nazi brownshirts of 2020.

And yet, I’m pretty sure nothing happened to them. And it won’t because they’re Trump supporters in Texas, which is still tightly controlled by the GOP (who are also seeking to invalidate 100,000 ballots).. Imagine if staffers on Biden’s bus had opened fire. Or if the situation were reversed and a bunch of terrorists flying Biden-Harris flags had tried to run a bus off the road.

I’m starting to wonder if we should take down our Biden sign. Our neighbors down the street did yesterday. A couple more Trump signs have gone up, and I can’t assume that those neighbors aren’t in favor of partisan violence. Their cult leader is literally encouraging it. The sign is definitely coming down when I leave for the polls early Tuesday morning. We’re four blocks from a polling place and I don’t want any of Trump’s armed “poll watchers” deciding to retaliate while driving through the neighborhood.

[Wolfpack Mustachian]

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Or to put it another way, when they believe they can somewhat abrogate personal responsibility for their decision by being simply one in many, they disregard the Constitution and decide an issue based on the way they personally want the world to be.  When they feel they can not do so, they more carefully consider what the Constitution means and how it actually applies to real people.

An interesting situation for a country to be in when 9 people hold such power over the lives of 300 odd million.

And this is why consensus will never be achieved. Everyone is not only convinced that they are right from a moral standpoint (this is to be expected - we all probably feel this way) but that they and they alone have the Rosetta Stone through which to decipher exactly what the Constitution really means. So they get to win doubly. They're not just looking out for people, they're also 100% right on their interpretation of the Constitution.

No, I'm pretty sure these justices aren't shoving down inside themselves this view of how they just know the Constitution should be interpreted until they become the swing vote, and then they let it out. Instead, it makes a lot more sense to me that they, like most people, are worried about their legacy, and when they realize they can have a disproportionate impact by being the swing vote or when they feel like they're on the wrong side of history because they have been interpreting the Constitution a certain way, they change their vote because they are concerned about people's perception of them.

[Wolfpack Mustachian]

It is domestic terrorism, using forceful means to interfere in the election.  Nazi brownshirts of 2020.

And yet, I’m pretty sure nothing happened to them. And it won’t because they’re Trump supporters in Texas, which is still tightly controlled by the GOP (who are also seeking to invalidate 100,000 ballots).. Imagine if staffers on Biden’s bus had opened fire. Or if the situation were reversed and a bunch of terrorists flying Biden-Harris flags had tried to run a bus off the road.

I’m starting to wonder if we should take down our Biden sign. Our neighbors down the street did yesterday. A couple more Trump signs have gone up, and I can’t assume that those neighbors aren’t in favor of partisan violence. Their cult leader is literally encouraging it. The sign is definitely coming down when I leave for the polls early Tuesday morning. We’re four blocks from a polling place and I don’t want any of Trump’s armed “poll watchers” deciding to retaliate while driving through the neighborhood.

I have never put up any sign and probably never will for this very reason - but from either side. I've never myself or a friend of mine have had this happen, but I have had a close friend have property damage because of it, and it wasn't conservatives who did it. It's just not worth it to put a sign out. I'll vote for who I vote for, and I'm good with that.

[GuitarStv]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

[EscapeVelocity2020]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

Sadly, this plays well to his base and encourages more of the same behavior.  Glad my Honda Fit doesn't have a Biden sticker on it...

I'm praying that this is shrinking Trump's base and some of the less fanatical see that this is not something that they want to be part of...

[partgypsy]

The same Trump Train people brought a casket holding a black haired dummy to a Biden event. How is that not communicating threats/intimidation? https://www.fox26houston.com/news/trump-supporters-apologize-for-bringing-casket-to-biden-rally.    And in my state in Alamance county a peaceful March to the polls that was all ages and included kids, got pepper sprayed because they kneeled at the square. According to police "kneeling" was a prohibited activity...

[LennStar]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

Law and Order!
LAW AND ORDER!

I am readying my thoughts and prayers, just saying...

[OtherJen]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

Yep. If by some miracle the mass voter suppression and cheating efforts fail and he doesn't win, I want to see him spend the rest of his small, miserable life in jail for his absolute dereliction of duty to his country, mockery of the Constitution, and incitement of violence against the people he is supposed to serve. Ditto for his sociopathic adult children.

[rantk81]

Between the large cult following behind the egotistical narcist monster, the likely coming assault on women's rights and marriage equality, and the potential disappearance of protections under the ACA -- I am really starting to investigate Canada Express Entry immigration process.  Biden will probably win. But even if Biden wins, I'm getting more and more fed up with the bullshit.  The sheer number of Trump cult followers who will excuse ANYTHING is appalling, and makes me feel like I'd be better off elsewhere.  I'm ready to be done with this shit.

[Roadrunner53]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

Yep. If by some miracle the mass voter suppression and cheating efforts fail and he doesn't win, I want to see him spend the rest of his small, miserable life in jail for his absolute dereliction of duty to his country, mockery of the Constitution, and incitement of violence against the people he is supposed to serve. Ditto for his sociopathic adult children.

Ditto, ditto, ditto! Would love to seem him marched out of the White House into a paddy wagon straight to the slammer. Would be a beautiful sight!

[partgypsy]

Its hard to keep up but it sounds like trump is planning to clear house at cia, fbi, doj if he wins. Apparently they are not working fast enough to lock up his political opponents.
 https://www.google.com/amp/s/www.axios.com/trump-firing-wray-haspel-esper-088cbd70-3524-4625-91f1-dbc985767c71.html

[EscapeVelocity2020]

The Trump shitstorm is raging these days.  Trump has turned on Dr. Fauci in favor of Dr. Atlas, who had to apologize today for taking an interview with RT (formerly known as Russia Today), a registered foreign agent.

A senior White House official told CNN Sunday that Atlas did not have clearance from the Trump administration for his interview with RT. The official said Atlas "did it on his own without approval by the White House." Senior aides raised concerns internally after Atlas appeared on RT, the source said. RT said the interview was done from the White House property.
...
In October, Twitter removed a tweet from Atlas that sought to undermine the importance of wearing a face mask, because Atlas' tweet was in violation of the its Covid-19 Misleading Information Policy, a spokesman for the company told CNN. The tweet said, "Masks work? NO" followed by a series of falsehoods about the science behind the effectiveness of masks in combating the pandemic.

He also encouraged officials to limit Covid-19 testing mainly to people experiencing symptoms. And on August 31, Atlas and Florida Governor Ron DeSantis urged public health officials in several Florida cities to focus less on universal testing and more on opening the economy and schools.

Trump has relied on Atlas for advice on handling the coronavirus. But Dr. Anthony Fauci, the country's leading infectious disease expert, has criticized Atlas, a neuroradiologist and Trump's hand-picked coronavirus adviser, for his lack of expertise.

"I have real problems with that guy," Fauci said in an interview with the Washington Post Friday. "He's a smart guy who's talking about things that I believe he doesn't have any real insight or knowledge or experience in. He keeps talking about things that when you dissect it out and parse it out, it doesn't make any sense."

[bbqbonelesswing]

The Trump shitstorm is raging these days.  Trump has turned on Dr. Fauci in favor of Dr. Atlas, who had to apologize today for taking an interview with RT (formerly known as Russia Today), a registered foreign agent.

A senior White House official told CNN Sunday that Atlas did not have clearance from the Trump administration for his interview with RT. The official said Atlas "did it on his own without approval by the White House." Senior aides raised concerns internally after Atlas appeared on RT, the source said. RT said the interview was done from the White House property.
...
In October, Twitter removed a tweet from Atlas that sought to undermine the importance of wearing a face mask, because Atlas' tweet was in violation of the its Covid-19 Misleading Information Policy, a spokesman for the company told CNN. The tweet said, "Masks work? NO" followed by a series of falsehoods about the science behind the effectiveness of masks in combating the pandemic.

He also encouraged officials to limit Covid-19 testing mainly to people experiencing symptoms. And on August 31, Atlas and Florida Governor Ron DeSantis urged public health officials in several Florida cities to focus less on universal testing and more on opening the economy and schools.

Trump has relied on Atlas for advice on handling the coronavirus. But Dr. Anthony Fauci, the country's leading infectious disease expert, has criticized Atlas, a neuroradiologist and Trump's hand-picked coronavirus adviser, for his lack of expertise.

"I have real problems with that guy," Fauci said in an interview with the Washington Post Friday. "He's a smart guy who's talking about things that I believe he doesn't have any real insight or knowledge or experience in. He keeps talking about things that when you dissect it out and parse it out, it doesn't make any sense."

Well, to his credit, DeSantis' strategy is paying off- his state has risen to #4 in total deaths, #4 in cases per 1m people, and #3 in total cases! With that kind of hard work and determination, he might hit #1 eventually.

[bacchi]

The Texas SC, to its credit, is the usual pro-business, conservative, courtroom. It hasn't been taken over by complete ideologues.

https://www.cnn.com/2020/11/01/politics/harris-county-texas-drive-thru-voting/index.html

The Texas Supreme Court denied a petition Sunday by a group of Republicans seeking to invalidate nearly 127,000 drive-thru votes in Harris County [Democrat-heavy Houston], while a similar case awaits a decision in federal court just two days before Election Day.

It's not the security of the vote that's the problem.

The (federal) complaint? Drive-thru voting violates the Equal Protection Clause because "the county is adopting a manner of voting that has not been adopted by other Texas counties." That is weak.

[PKFFW]

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Or to put it another way, when they believe they can somewhat abrogate personal responsibility for their decision by being simply one in many, they disregard the Constitution and decide an issue based on the way they personally want the world to be.  When they feel they can not do so, they more carefully consider what the Constitution means and how it actually applies to real people.

An interesting situation for a country to be in when 9 people hold such power over the lives of 300 odd million.

And this is why consensus will never be achieved. Everyone is not only convinced that they are right from a moral standpoint (this is to be expected - we all probably feel this way) but that they and they alone have the Rosetta Stone through which to decipher exactly what the Constitution really means. So they get to win doubly. They're not just looking out for people, they're also 100% right on their interpretation of the Constitution.

No, I'm pretty sure these justices aren't shoving down inside themselves this view of how they just know the Constitution should be interpreted until they become the swing vote, and then they let it out. Instead, it makes a lot more sense to me that they, like most people, are worried about their legacy, and when they realize they can have a disproportionate impact by being the swing vote or when they feel like they're on the wrong side of history because they have been interpreting the Constitution a certain way, they change their vote because they are concerned about people's perception of them.

I make no pretensions to having the one and only true way to interpret the Constitution.  I'm not even questioning the interpretation of any decisions being made by others.  So long as those interpretations are being made consistently.

However, if someone changes their interpretation and decision based on being the swing vote and their legacy and how people will perceive them, by definition they are not basing their decision on what they truly believe to be the proper interpretation of the Constitution.  If they are doing that in situations where they believe themselves to be the swing vote, that calls into question the honesty and legitimacy of all their other decisions.

Why would it be ok to decide a case one way based on being the swing vote but decide it another way if they believed their vote was not the swing vote?

[OzzieandHarriet]

To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

To show approval and support, Trump tweets 'I love Texas' along with video of the incident.  The president is now openly condoning terrorist attacks against political rivals.

And ... they’re on a roll with this now.

https://www.nytimes.com/live/2020/11/01/us/trump-biden-election?action=click&module=Top%20Stories&pgtype=Homepage#trump-defends-texas-drivers-who-surrounded-biden-bus-while-presidents-supporters-block-traffic-in-new-york-and-new-jersey

[EscapeVelocity2020]

This is always a good sign for a free, peaceful Democracy - https://www.cnn.com/2020/11/02/politics/white-house-fence-erected-again/index.html

Washington (CNN)Federal authorities are expected to put back into place a "non-scalable" fence around the entire perimeter of the White House on Monday as law enforcement and other agencies prepare for possible protests surrounding the election, a source with knowledge of the matter confirmed to CNN.