Supreme Court

Kavanaugh Accuses Gorsuch of Judicial Activism in Criminal Justice Case

“The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.”

|

Today the U.S. Supreme Court struck down a federal criminal statute on the grounds that its language is so imprecise that it violates the Constitution. "When Congress passes a vague law," declared the majority opinion of Justice Neil Gorsuch, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Writing in dissent, Justice Brett Kavanaugh championed a very different sort of role for the courts. "A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event," Kavanaugh complained. "The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality."

The case is United States v. Davis. At issue is a federal statute which, in the Court's words, "threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?" That is where the debate over vagueness comes in. The law itself calls for enhanced sentencing in cases involving felonies "that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

And what exactly does that mean? Opinions differ. And therein lies the problem. As Justice Gorsuch pointed out in his majority opinion, "even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence." And "in our constitutional order," Gorsuch observed, "a vague law is no law at all" because it violates the core constitutional requirement that all federal statutes "give ordinary people fair warning about what the law demands of them."

Gorsuch's decision was joined in full by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

In his dissent, Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, attacked Gorsuch's ruling for taking the Court "off the constitutional cliff." Yes, the Supreme Court is supposed to "ensure that Congress acts within constitutional limits and abides by the separation of powers," Kavanaugh wrote. "But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers."

In other words, Kavanaugh just called Gorsuch a judicial activist.

In previous criminal justice cases, Gorsuch has butted heads with Alito over the meaning and application of the Fourth Amendment. It looks like Gorsuch will now be butting heads with Kavanaugh in some criminal justice cases too.

The Supreme Court's opinion in United States v. Davis is available here.

NEXT: Facially Viewpoint-Based Statutes Are Unconstitutional Even if They Aren't "Substantially" Overbroad

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

110 responses to “Kavanaugh Accuses Gorsuch of Judicial Activism in Criminal Justice Case

  1. “the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”

    I agree with Gorsuch here. I wish Alito had agreed with that during the Obamacare case.

    1. Yep, thank God for Gorsuch. Fuck Kavanaugh. My instincts about him are turning out to be correct.

      1. thank God for Gorsuch

        I need to start selling T-shirts that say this.

      2. And what may those instincts be? That he’s a rapist alcoholic?

        1. That he’s a rapist alcoholic?

          No – that was propaganda, not anybody’s instinct.

          The instinct was that he would turn out to be a swampy, authoritarian douche. Instinct dead on, apparently.

    2. Anyone paying attention to the hearings would have been able to pick out in between the circus acts that Kavanaugh actually said that he defers to the teachings of the Jesuits who taught him in high school.

      By his own admission, he is by no means conservative. Can’t figure out if this got by Trump or he has some ulterior motive by installing on the court.

      1. Trump had to nominate Kavanaugh as part of the deal for Kennedy to retire.

        Kennedy was horrible, so Kavanaugh is still not as bad as that guy…yet.

      2. I wonder what the terms “conservative” and “liberal” actually mean anymore.
        Is a liberal someone who generally holds that people should be free and not subject to vague laws? Is a conservative someone who says people should get longer prison sentences because the law is indecipherable?

        1. I don’t think either “liberal” or “conservative” have any discernible meaning. They’re more tools for propagandists to appeal to team spirit and avoid actual thinking. When it’s necessary to think in a binary fashion, I try to go with “statist” vs. “libertarian”. Here, Kavanaugh’s stance is statist, where Gorsuch’s is libertarian. What’s interesting here is that Breyer, whose religion is statism, joined in on the libertarian side in this one. Too bad Raich didn’t come up this term; I can easily see the wheat cases being overturned, now that the problem of Scalia’s drug war fetish is moot.

          1. I think more along the lines of collectivist versus individualist. Or government control versus freedom of choice.

            1. This is what I teach my kids. The differences are control vs freedom and collectivist vs individualist. It is so much easier to talk about than conservative and liberal, or “leftist” as so many people say.

      3. Deferring to what ‘is’ is a significant part of being a conservative. It’s no coincidence that he was on the side of the conservative judges in this opinion. He is a conservative – and like Alito and Roberts imo – not really libertarian at all.

    3. What was vague about the law in the ACA case?

      1. “PenalTax,” anyone?

      2. There were deficiencies in the law which Alito… helped ‘clarify’ for Congress. It should have been a “nullity and sent back to Congress to try again.” You don’t redefine terms in the law to help them through constitutional scrutiny. Otherwise, you’re literally legislating from the bench.

        1. Roberts wrote the majority opinion in Sebelius, not Alito.

          The joint dissent (which Alito joined) in Sebelius would have struck down the entire Act.

    4. I’ll be sure to mark that extraordinary judicial event in my Calendar, and then cry about it.

  2. And Gorsuch’s opinion calls the previous rulings and the dissenting opinion “judicial activism” as he writes that it is not the Court’s job to edit legislation into something more clear and consise.

    I am with Gorsuch’s definition of judicial activism over Root’s.

    1. I think that’s Kavanaugh’s definition, not Root’s.

      1. I think Root has asserted hat the court overturning bad law is judicial activism and therefore judicial activism is good rather than judicial activism being the court usurping legislative and executive functions by either legislating on their own or fixing those two branches mistakes through creative editing.

        1. Ah, I see.

          I’ll take either definition as long as it’s clear which one means that bad laws get thrown out and which one means that the court gets to make up a new meaning for the law.

  3. Only an intellectual could fall for the argument that wrongs should be perpetuated by the Court because they’ve been wrong for so long.

    1. Whereas only an imbecile would agree with you?

      1. Nothing wrong with what I wrote. The idea that a wrong becomes better as it does more damage over time isn’t just counterintuitive. That’s the foundation upon which that all sorts of stupid thinking is built.

        For instance, some people think that the longer industries, salaries, and jobs have been protected by regulation and trade barriers, the more they and the rest of the economy need to be protected from competition with regulation and trade barriers.

        Meanwhile, the U.S., for instance, kicks Russia’s ass when it comes to manufacturing. The longer those Russian industries were protected from competition, the harder it was for them to catch up when market forces finally wrecked their dream.

        It works the same way in law, I figure. When the courts perpetuate an unconstitutional injustice, it never makes it constitutional or just. The damage just piles up over more time. It isn’t overturning Kelo or Wickard v. Filburn that would be so damaging. It’s the perpetuation of those shitty decisions that causes the damage. Tearing the infected bandage off lets the healing begin.

        Are there any other simple concepts that need to be explained for you in detail?

        1. I think there’s some truth to what you’re saying. I also think that it isn’t the whole truth. Reality can get kind of messy, after all.

          I was thinking more about your latest jab at intellectuals, actually. Is that really the way you want to go? I know intellectuals haven’t been kind to you all lately but is flipping the table the best possible option?

          1. We haven’t heard from any intellectuals yet. At least not from you.

          2. Intellectuals are the source of each and every big man-made fuckup in history. Intellectuals as defined by Thomas Sowell, “people who’s end products are ideas.”

            1. Do you not believe in the ideas of liberty expressed in our Declaration of Independence, or in Enlightenment writings that inspired it? How about scientific ideas like evolution, or like relativity or quantum theory? All produced by “people whose end products are ideas”. The world would be a lot poorer – culturally and materially – without such people.

            2. You don’t have to rail against the entire concept of people having ideas while openly stating that most intellectuals today are morons.

              What one might call moderately intelligent peoples common sense is so much better than what the intellectuals have on offer today it’s not even funny. TJ and his ilk are the exception, not the rule. So the current crop, not being awesome like TJ, deserve as much scorn as people wish to throw at them.

              1. What one might call moderately intelligent peoples common sense is so much better than what the intellectuals have on offer today it’s not even funny.

                Vek, what I call moderately intelligent people’s common sense is their tendency to think that it is too risky to try to be right on your own, and always better to be wrong in a group that agrees with you. Problem is, that has a tricky corollary—that it is also better to be wrong in a group, than to be right and disagree with the group.

                Intellectuals are wrong more often, and more conspicuously, than moderately intelligent common sense people, because they reject both the rule and the corollary.

                A lot of intellectuals would be wiser to be more cautious. A lot of ordinary common sense people would be wiser to take more chances.

                By the way, in the Democratic primary field, there is a conspicuous example of an ordinary common sense person who is willing to take chances. It is Elizabeth Warren. If you suppose otherwise, you need to read up on her personal history, and the story of how she got into politics. Maybe that common sense piece will come out in tonight’s primary debate.

                Not yet sure I think that makes her a good presidential choice. When she ran against Scott Brown, even in winning, Warren showed herself to be clumsy at politics, and repeated the problem with the Pocahontas stuff. But the way she is getting increasing traction in Iowa and New Hampshire, and in national polls, suggests she may have learned a common sense thing or two about politics along the way. I suggest fans of common sense ordinary people could do worse than pay attention to Warren—which seems to be what is happening.

                Of course, extreme individualists won’t like Warren, because she is all about group solutions. And also because extreme individualists like to combine the vices of common sense ordinary people with the vices of intellectuals, to build a formula which enables them to be wrong all the time, and rejected by everyone.

                1. “A lot of intellectuals would be wiser to be more cautious. A lot of ordinary common sense people would be wiser to take more chances. ”

                  Agreed. But I do think most people with common sense gut instincts tend to be decent. The only reason they lean towards idiocy seems to be that the intellectuals have told them they’re wrong, and evil, and need to believe what they’re told.

                  “And also because extreme individualists like to combine the vices of common sense ordinary people with the vices of intellectuals, to build a formula which enables them to be wrong all the time, and rejected by everyone.”

                  LOL So true.

          3. It’s from a quote.

            “There are some ideas so absurd that only an intellectual could believe them.”

            —-George Orwell

            Orwell went after the intellectuals for a couple of obvious reasons if you ask me. For one, he hated the intellectuals of his day for their support of Stalin, their defense of the murder of Trotsky, etc. Instead of feeling it necessary to defend that shit in the name of socialism, like intellectuals of the day did, Orwell skewered Stalin and the communists. He didn’t expect the working classes to adopt socialism because the intellectual elite lied to them about how authoritarian assholes like Stalin were treating average people worse than shit, and he wrote whole books (see Animal Farm and 1984) to make plain his hatred for what Stalin had done in the name of socialism.

            I’ve read a lot of Orwell’s stuff. My second guess as to why he hated intellectuals was because he say them trying to make a false distinction between their elitist asses and the common people. Just like today, there are so many “intellectuals” who spout fashionable horseshit solely because it’s the opposite of what, say, the white, blue collar, middle class of the upper Midwest want. Towards the end of Animal Farm, the pigs who remain in the house start walking around upright, dressing in clothes, and generally acting like the oppressive farmer–while the common pigs are left outside in their old misery. This is when Orwell introduces the phrase, “All animals are equal, but some animals are more equal than others”.

            No, I don’t see socialism as the solution to our problems, but I do see elitism as the assumptions upon which both authoritarianism and socialism are built. Those intellectuals are so smart. Why should we be free to make choices for ourselves when they can make better choices for us than we can make for ourselves? Meanwhile, populism (whether from the right or the left) is always by definition a reaction to elitism. If we libertarians don’t want populism, we should decry elitism as well.

            There certainly isn’t anything libertarian about elitism. Libertarianism is about how the best results, from both a utilitarian and a qualitative perspective, come from stupid people being free to make choices for themselves. One of the amazing things about markets is that price signals make people behave as if they have knowledge that they do not possess. Stupid people interacting through markets become so much smarter than intellectuals, and intellectuals really hate for people to think that they aren’t superior to average people. And that’s exactly the kind of false superiority Orwell was criticizing.

            Yeah, only an intellectual could be stupid enough to believe that injustices become better when they’re tolerated for longer. Stupid people interacting in markets are far too smart to fall for that. Have you ever seen a bubble burst in the market that wouldn’t have been as devastating if only it had been allowed to continue even longer? While the intellectuals are arguing for that kind of shit (see TARP), “stupid” homeowners often do the smart thing and drop the keys off at the bank. Things often don’t start getting better until markets full of “stupid” people finally have their way with intellectuals.

            1. This may be the most persistent and absurd belief of intellectuals: Intellectuals often believe that average people will follow them–even after they realize that the intellectuals hold them in contempt. And when that doesn’t materialize, it always seem to confuse the intellectuals.

              The intellectuals called Trump voters stupid. They called them racists. They called them sexists. They called them xenophobes. The intellectuals told the average people that they were stupid because they were unwilling to sacrifice their standard of living on the altar of climate change. The intellectuals did all those things!

              Only an intellectual would find those arguments persuasive. And they still can’t seem to figure out why average people voted for Trump!

              If you tell average people how much you hate them for long enough, eventually they’ll start to believe you, and why would people follow those who hate them?

              1. So, what would the world look like without these elites?

                1. I don’t think he’s going towards gulags or anything with his thinking…

                  The elite will always be there… But history shows there can be a massive range of dynamics between them and others. The elite in the west today is very nearly at the level of detachment from reality that produced “Let them eat cake.” People with dicks are ACTUALLY women according to these people, as opposed to people who think/wish they were women.

                  They need to get brought back down to reality, and have their egos checked some. Stuff goes in cycles. The elite needs to be taken down a few notches and regain some humility.

              2. Ken, don’t you think it is true that for a very long interval—roughly from the founding era until post-WW II—ordinary people in this country did, mostly, follow the lead of intellectuals? If not, how do you explain the founders—as intellectual a set of statesmen as the world has ever seen?

                And what do you make of the notion of meritocracy? Isn’t that founded in large measure on respect for elites, albeit with the added notion that membership in the elite is always up for grabs?

                A few quibbles about your particulars:

                1. Probably more ordinary people voted for Clinton than for Trump.

                2. It isn’t true that Trump’s voters are all racists, but are there more racists among Trump voters than among Clinton voters? Absolutely, and it isn’t close. That is not my estimate, that is Trump’s estimate, as anyone can tell from his leadership style.

                3. “Intellectuals” did not conclude average people were stupid for being, “unwilling to sacrifice their standard of living, etc.” Some intellectuals probably wondered how bright you could be if you supposed you had that choice—given evidence that climate change will more likely than not trouble everyone’s standard of living. But the split wasn’t between “intellectuals,” and everybody else. It was between a sub-set of Trump followers on one hand, and on the other hand, plenty of non-intellectual ordinary voters who disagree with those Trump followers on climate questions. Intellectuals are a drop in the bucket compared to either group.

                I truly wonder why you have it in for intellectuals, who as a group have shown themselves among the least ambitious or imposing of our fellow citizens. Here is William James, a philosopher, in 1904:

                But looked at candidly, reason bears about the same proportion to the rest of human nature that we in this hall bear to the rest of America, Europe, Asia, Africa, and Polynesia. Reason is one of the very feeblest of Nature’s forces, if you take it at any one spot and moment. It is only in the very long run that its effects become perceptible. Reason assumes to settle things by weighing them against one another without prejudice, partiality, or excitement; but what affairs in the concrete are settled by is and always will be just prejudices, partialities, cupidities, and excitements.

                I suggest that James’ take on reason, and the character of intellectuals, is largely accurate, even today. And that you are mistaking intellectualism for something else—which is the systematic mobilization of those, “prejudices, partialities, cupidities, and excitements.” That has not been the work of intellectuals. That has been the work of politicians.

                My suggestion for you? Calm down, and pay more attention to the likes of William James, and less attention to Donald Trump.

                1. 2. “…but are there more racists among Trump voters than among Clinton voters? Absolutely, and it isn’t close. ”

                  Fail. Next contestant.

                  1. Double fail; that is circular nonsense

        2. We need to find a middle ground here. Continually overturning precedent also makes it impossible to know what the law is.

          But that middle ground should not be “Retain bad precedent until the moment it happens to subjectively offend 5 justices at the same time.

        3. “Are there any other simple concepts that need to be explained for you in detail?”

          But, but but what about the reassuring consistency of precedent that provides stability. No one can measure the destruction that will result from increased individual liberty as a result of reversing a precedent.

      2. I’m impressed. This may be the farthest I’ve gotten in Reason’s comments before encountering the first ad hominem attack.

        1. Slow day, I guess.

  4. Gorsuch is correct.

    >>>”off the constitutional cliff.”

    making federal penal code more clear certainly not off any cliffs

  5. How long does Kavanaugh think Slaughterhouse should be perpetuated?

    Does Kavanaugh think overturning Plessy was a bad idea?

    1. Slaughterhouse is still good law, in a sense; That’s why conservatives are always going on about Privileges and Immunities, and why the courts pretend that “substantive due process” is a real thing: The Court didn’t have the integrity to just overturn the Slaughterhouse cases, they pulled work-arounds out of their collective arse, instead.

  6. “The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.”

    The Court should probably stop doing that.

    1. The court should most definitely stop doing that.

      1. Which statutes? The unconstitutional ones written and passed by Congress, or the ones crafted and enforced by unelected and mostly unaccountable bureaucrats?

        1. Although the latter category may define and engender criminal penalties for the violation of regulatory regimes, they are literally and definitionally not “statutes”.

      2. Absolutely this. That’s a big reason courts fail to do their job. They should look critically at all legislation, not say “ehhh whatevs”

    2. Amen! The mind boggles – Kavanaugh, of all people, presuming rationality – never mind Constitutionality – from Congress.

  7. I knew Kavanaugh was a terrible nominee.

    Thank god for Gorsuch.

    1. I think he’s had some bad judgments. He’s not terrible, but he’s not good either. I have to remind myself that the only thing about him I was defending back in the hearings was that he deserved a presumption of innocence, and that allegations without any manner of substantiation shouldn’t be considered.

      1. He’s not terrible

        yeah, he kinda is

    2. Kavanaugh was part of the deal for Kennedy to retire.

      Kavanaugh will matter less and less as Trump gets to replace RBG and probably Breyer within the next 5.5 years.

      I thought Thomas would retire, so Trump could replace him too but evidently Thomas is not ready yet.

      1. Thomas probably wants to make sure that he’ll be replaced by another textualist… Not a tweetualist.

        1. Thomas just wants Trump to pick his replacement in 2024 as Trump is serving out his second term. This way a replacement for Thomas can be ready to be confirmed by the GOP Senate.

        2. So Amash is out.

  8. How can you both “ensure that Congress acts within constitutional limits” and “overstep our role in the name of enforcing limits on Congress”?

  9. I’m a layman and no legal scholar, but I’m curious about the fallout of this decision.

    So has this statute been struck? I suppose that means it’s now putting the onus on Congress to re-introduce and rewrite this…or is this a case where an entirely new bill needs to be drawn up?

    Furthermore, I suppose thousands of prisoners now have grounds to appeal their sentences. But what about convicts who have already served out their sentences, are they now able to sue the federal government for restitution?

    1. The statute is entirely struck down. If it is void for vaugness, it is void in all cases. Congress will have to rewrite it.

      1. Of course, all cases in progress will still have these charges in them – and each individual defense attorney will have to spend time (and billable hours) to bring this to their court’s attention – because fuck that if prosecutors or trial judges are going to. That’s what appeals courts are for.

  10. If the government can’t articulate to the Court under what circumstances the law applies, the law is vague and should be voided. If Congress wants to enhance the sentence of people using a gun when they commit a violent crime, it need only to list exactly what crimes and circumstances the enhancement applies.

    This is not judicial activism. Gorsouch and the liberals are right.

    1. I do think its funny that the media is saying that Gorsuch “joined” the Lefties on the SCOTUS in the majority for this case.

      It would appear that Gorsuch had this position on proper duties of the courts and the Lefty justices joined him for whatever reasons they have.

      It is fun to watch Lefty justices set up government to fall just to try to piss Roberts off.

      1. It was a funny case.

        In terms of the gun angle on the outcome, the left voted against added penalties for exercising your 2nd amendment rights, and the right voted for them.

        Except Gorsuch.

        But in terms of crime, the Left voted for lesser penalties and the Right for greater penalties, which is the more usual case.

        Luv me sum Gorsuch.

        The cases I’ve heard have pointed the way toward a *radical* overhaul of Deep State power.

        Chevron Deference is going down.

  11. Let me see if I have this straight.

    If Congress creates a vague law, the Supreme Court is not supposed to create new law to replace it – by guessing Congress’ intent – but if they don’t create new law to replace it then they are being ‘judicial activists’ because the Supreme Court has been doing exactly that for generations?

    So you’re not a judicial activist if you do the thing started by judicial activists – but only if it was first done a long time ago?

  12. Writing in dissent, Justice Brett Kavanaugh championed a very different sort of role for the courts. “A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event,” Kavanaugh complained. “The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.”

    Hence the problem that you fucking judges have been refusing to do your jobs for decades.

    If a law is void for vagueness or any other violation of the constitution, strike it down and encourage the respective legislative body to try again. Who cares how long it has been on the books.

    ObamaCare has been on the books for almost a decade and it was unconstitutional from Day 1.

    1. Yeah, keeping a law because it’s been around for a long time is a pretty terrible argument. Is it constitutional or not?

  13. I’ve always thought this was the right way to deal with vague or otherwise unconstitutional laws. If any part violates the constitution, strike the whole law. Congress fucked it up, they need to fix it.
    Without that it’s hard or impossible to get rid of big, bad and unconstitutional laws like the ACA. How likely would it have been that it would have passed again, with required modifications, after the supreme court case?

    1. Agree; as with non delegation, make it so Congress has to be so detailed and specific that they can only pass a dozen laws a year, and do it right and take full responsibility for it. Win/Win

      1. I can’t imagine how anyone could possibly disagree with what you’re saying…

        Yet they do

    2. Agree. Judicial activism is the court dreaming up dictates of the constitution that are not there. It is not striking down unconstitutional laws.

    3. That is the niche of the 3rd Branch of Government.

      To settle controversies, try crimes, preside over impeachments of presidents, and determine law and equity under the Constitution.

  14. “In other words,” Kavanaugh just called Gorsuch a judicial activist

    I see Reason is all in for click bait.

  15. Forcing a legislature to do its job correctly is the worst kind of activism.

    1. You are wreaking my cushy job by making me actually do said job.

  16. I guess Brett knows a thing or two about baseless accusations.

  17. I scanned the opinion. The thrust of Kavanaugh’s argument seems to be that the law isn’t sufficiently vague enough to merit striking. That’s pretty different from the way Root is spinning his argument.

  18. “The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.”

    That sentence makes my skin crawl.

    1. As it should. Someone who watches Law and Order for recreation can “presume” a law is constitutional or not. A judge, especially a USSC judge, should damn well know.

    2. That is appropriate for a lower court judge, perhaps, but not SCOTUS. Kav still thinks like he’s on a local bench.

  19. Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito

    Ha! The cuck wing of the court.

  20. Obviously Kavanaugh is no originalist if he doesn’t grasp the idea that three separate but co-equal branches of government were created specifically so that they’d be a check on each other’s powers. The idea that SCOTUS should presume that Congress is acting Constitutionally is the same idea that prosecutors should assume cops are acting in good faith and judges should assume both cops and prosecutors are acting as faithful guardians of justice. No, asshole, you’re not all on the same side, you’re supposed to be antagonistic to one another.

    1. ha if anyone was under the impression he’s an originalist, i got a bridge in brooklyn to sell them

  21. It’s easy to imagine how the law’s wording got so muddled. The same people who favor harsh punishment also favor letting people walk around with firearms. By wording it this way, they could say they were being tough on crime but also not punishing anyone just for having a gun on them when they ran afoul of the law. I’m surprised Gorsuch couldn’t see or wouldn’t see the conservative mind at work here.

    1. I’m surprised Gorsuch couldn’t see or wouldn’t see the conservative mind at work here.

      Maybe it’s because more than one of the two dominant parties tends to be involved in crafting legislation? And that Gorsuch legitimately finds the law unenforceably vague as written, rather than that he is failing to abide by the secret conspiratorial agenda you’re sure he has?

    2. The same people who favor harsh punishment also favor letting people walk around with firearms.

      Uhm, you’re forgetting the ‘liberals’ – Democrat and Republicans – that have been consistent about ramping up law enforcement efforts to eradicate their individual bugaboos.

      There are no clean hands here. This is not a us vs them situation. ‘Conservatives’ and ‘Liberals’ both have been consistent in their ‘tough on crime’ stances. Especially when it comes to the drug war.

    3. That’s because Gorsuch is not “conservative” He’s constitutional which is a whole different ballgame

      So many typical “conservative” issues that are unconstitutional:

  22. Imagine Jeb Bush selecting a SC justice. That’s Kavanaugh.

  23. Gorsuch = Good Trump

    Kavanagh = Bad Trump

    Yeah, yeah…I know it’s not that simple, but the man has a split personality. If he fixed that deficiency, he’d be an exciting guy to have in office.

    1. Its pretty much the same with Obama.

      Sotomayor = Good Obama

      Kagan = Bad Obama

      They’re both 1-for-2. Which is still better than pretty much everyone else before them.

    2. The question is, does Trump even see a difference between his two nominees? He probably picked Gorsuch by mistaking him for a “conservative” like Kavanaugh.

      BUT if Gorsuch was a mistake, it was a better mistake than any SC nomination in living memory. And it implies that for the first time since … Coolidge? … or Taft? … we have a President that didn’t make “worships the state” a primary selection criteria in choosing a nominee.

      1. I think he doesn’t know/care that much about court picks per se. He wants people who will be friendly to his agenda of course, but I think he would see most constitutionalists and conservatives as both being mostly on his side. I think Gorsuch was some libertarian leaning folks getting their way, and Kav was more mainstream conservatives getting their way.

        Frankly, as part of a balancing act, I’m not entirely opposed to having a Kav type in the mix. He’ll probably be cool on most issues, and maybe a bit of a hard nosed dick now and again… But perhaps in areas where some pussy purist “liberal” might not be. I’m a libertarian in 98% of cases, but I’m down with tough but fair in a lot of aspects of life. The type of criminal justice reform being pushed now, letting out genuinely sketchy people after short stretches etc, is not my cup of tea. But pot smokers shouldn’t be in trouble with the law in the first place.

        So, as I said, I think somebody along his lines will probably do good things sometimes, and piss me off other times, as is the case with pretty much everybody involved in politics in any facet.

  24. Still, the particular issue in this case makes it a bit more difficult to just say Gorsuch good, Kavanaugh bad. This kind of thing goes way back to the concept of judicial review, something Thomas Jefferson was actually wary of. The question becomes, if Congress passes total nonsense, what is the court to do? They could assign some fabricated meaning to the law, or they could just declared it unconstitutional based on… Well, not a whole lot.

    The problem is that the people in congress who are supposed to make clear, precise legislation literally have no clue what they are doing. Folks, the legislative branch has failed us, and the court is left to pick up the broken pieces.

  25. One of the biggest problems we have is power hungry and political prosecutors going for “novel interpretations” of laws in order to trap their victims. Gorsuch is right: force congress to make things very clearcut and stop the prosecutorial lottery. If the court had insisted on this all along we would not have these problems. The court should do ITS job and stop writing laws and amending the Constitution.

  26. “The Court usually reads statutes with a presumption […] of constitutionality.”

    So there’s a bias going in? Why should *any* law be assumed to be constitutional?
    All of them were drawn up by the staffs of people who don’t even read them before they vote on them.

  27. I’ll be sure to mark that extraordinary judicial event in one of my Calendars, and then cry about it.

  28. I hope to see more post from you. I am satisfied with the arrangement of your post. You are really a talented person I have ever seen.

    Office.com/Setup

  29. Under what clause of Article 1, Section 8 does this law fall, in the first place?
    THAT’S what the first decision of the SCOTUS should be.
    If it doesn’t pass that bar, out it goes, regardless of anything else.
    “Federal Law” should only be about the powers the Constitution gives to the Congress. Everything else should be handled by the states.

  30. Car Accident Lawyer Orlando with over 20 years of experience getting clients the highest settlements with ease. We’ve recovered millions from claiming and wining all the cases.

  31. It’s not in the federal trademark database, but there might be some kind of product which uses that name and established a trademark through usage………………….gocash7.com++
    Don’t copy “++ ” with web addresst

  32. Can’t be true, I’ve been told by reliable sources that Kavanugh and Gorsuch are both conservative bots who think the same, allow no dissent, and will do exactly what the other court conservatives do.

    1. Yes. If we allowed Kavanaugh on the court he was going to bewitch the other justices into striking down Roe v. Wade whether there was a case to hear or not. Tales about Handmaids would ensue.

      1. I need to watch that show… Read it in school many moons ago, but it would be nice to see what a sane, well ordered world would look like on TV 😉

  33. “But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.”

    No, you protect the Constitution and the people. That’s more important than a vaguely defined “separations of powers”.

  34. I am satisfied with the arrangement of your post. You are really a talented person I have ever seen.

    Office.com/Setup

  35. […] again joined by the Court’s Democratic appointees, ruled for a criminal defendant over a strongly worded dissent filed by Kavanaugh, which was joined by Roberts, Thomas, and […]

  36. […] again joined by the Court’s Democratic appointees, ruled for a criminal defendant over a strongly worded dissent filed by Kavanaugh, which was joined by Roberts, Thomas, and […]

  37. […] again joined by the Court’s Democratic appointees, ruled for a criminal defendant over a strongly worded dissent filed by Kavanaugh, which was joined by Roberts, Thomas, and […]

Comments are closed.