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There Is No Court of History

Chief Judge Pryor "write[s] separately to explain a difficult truth about the nature of the judicial role."

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Yesterday, the Eleventh Circuit decided Jones v. DeSantis. This en banc decision held that Amendment 4 to the Florida Constitution did not violate the Federal Constitution. The Amendment could condition the payment of any fines as a prerequisite to the restoration of voting rights. The Court split 6-4. You may recall that there was an effort to get Judges Lagoa and Luck to recuse (See here and here). They did not recuse. Ultimately, their participation broke what have otherwise would have been a tie that affirmed the district court's permanent injunction.

Chief Judge Bill Pryor wrote the majority opinion. But here, I flag Chief Judge Pryor's separate concurrence, which Judge Lagoa joined. Pryor responds to a claim made by Judge Jordan in dissent. Judge Jordan wrote:

Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today's decision—which blesses Florida's neutering of Amendment 4—will be viewed as kindly by history.

Pryor forcefully rejected this claim:

I write separately to explain a difficult truth about the nature of the judicial role. Our dissenting colleagues predict that our decision will not be "viewed as kindly by history" as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality (1981)). But the "heroism" that the Constitution demands of judges—modeled so well by our predecessors—is that of "devotion to the rule of law and basic morality." Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a "genuine risk" that later judges will "easily misunderstand" this lesson. Id. Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. The Constitution instead tasks us with "administering the rule of law in courts of limited jurisdiction," id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.

Yes, Pryor is referring to "the Supreme Judge of the world." No, not John Roberts. The judicial oath provides:

"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 lll under the Constitution and laws of the United States. So help me God."

In Trump v. Hawaii, Chief Justice Roberts purported to overrule Kormematsu in the "court of history."

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." 323 U. S., at 248 (Jackson, J., dissenting).

This line was pathetic virtue signaling. The Supreme Court cannot overrule a case in an imaginary court, where the question isn't even presented. In general, when I hear the phrase "court of history" or "arc of history," I simply presume that a liberal is trying to shame a conservative into reaching a liberal result. These phrases no longer have any meaning for me. Alas, the Chief bought into this mythology.

Chief Justice Roberts could learn a lesson from Chief Judge Pryor. Regrettably, Pryor is still on the not-so-short list, and not on the Supreme Court.

NEXT: Podcast on "A Man for All Seasons"

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263 responses to “There Is No Court of History

  1. Fortunately, it’s unlikely that Florida will be the “tipping point” state, so partisan Republican/conservative judges will not be able to throw the election to Trump. But nice job by the Florida Republican legislature to evade and subvert the will of Florida voters, and good for the 11th Circuit, in enabling this. Thank God fewer black people will be able to vote in the upcoming election. And (given the state’s own estimate of 6 years to figure out how to let affected people know how much they actually owe), those people probably will be disenfranchised in the 2022 and 2024 elections as well. Stupid black ex-felons . . . trying to vote and participate in the democratic process. #sad #pathetic #fatchance.

    1. Because Florida could have instead just banned felon voting outright….

      1. Except that the voters of Florida said to reenfranchise the felons. But dammit, a disproportionate share of felons are blacks, and blacks don’t vote for Republicans. So Florida (in the grip of Republicans) found a way to thwart the people.

        1. No, they said to reenfranchise the felons once all parts of their sentences are done. “ALL”.

          As I understand it, this was discussed in the drafting of the amendment, and that “all” absolutely includes any financial penalties.

          No, they absolutely are implementing the terms of the amendment, even if some of the backers of the amendment would prefer that some parts not be enforced.

          The best argument the felons can make here isn’t that the amendment is being violated. It’s a due process argument that you can’t very well pay the financial parts of your sentence if the government doesn’t give you a complete and clear bill.

          1. Brett,

            So it’s OK to disenfranchise voters because the sate government is incompetent? Wouldn’t one solution have been to tell the state that, if it can’t tell someone, right now, how much they owe that person gets to vote? But hey, gotta keep those blacks from voting.

            So it’s OK to tell those who can’t possibly pay the accumulated fees that they can’t vote, because they are poor? But hey, gotta keep those blacks from voting.

            But no voter suppression here, nosiree.

            1. Huh? No, I was saying that they actually have a strong due process argument for excluding financial penalties from that “all”, if the state can’t be bothered to give them a clear bill of what they owe.

              1. Which argument the court ignored with some rather pathetic hand-waving.

            2. “So it’s OK to tell those who can’t possibly pay the accumulated fees that they can’t vote, because they are poor?”

              It may or may not be OK, but that’s what the voters who passed amendment 4 said. It sure beats disenfranchising them altogether.

            3. “So it’s OK to disenfranchise voters because the sate government is incompetent?”

              No, it’s Ok to disenfranchise voters because if they were allowed to vote, they wouldn’t vote for Brett’s party.

              1. Don’t be silly, I approve of Prop 4, and would have voted for it if I’d been a Florida resident. My only objection to it is that it didn’t go far enough: Felons should get ALL their rights back after their sentence is done, not just the right to vote.

                What we’re discussing here is whether Prop 4 gets enforced as written, (That “all” meant all.) or rewritten by the courts after passage to be more lenient.

          2. No, they said to reenfranchise the felons once all parts of their sentences are done. “ALL”.

            As I understand it, this was discussed in the drafting of the amendment, and that “all” absolutely includes any financial penalties.

            Oh, as you understand it?

            Here’s what it actually says: “…voting rights shall be restored upon completion of all terms of sentence including parole or probation.” If “all terms” meant financial penalties, then it seems odd that it didn’t mean parole or probation, which would far more naturally be described as “terms of sentence” that can be “completed.” And yet they felt the need to separately include probation/parole. It would be more likely that they’d have said “all terms of sentence including parole, probation, and fines” if they had meant to include fines.

            1. This is all discussed in the Florida Supreme Court advisory opinion of Jan 2020. In fact the opinion addresses pretty much all the complaints raised in this thread – whether terms of sentence means imprisonment (ie a duration) or terms in the sense of contract terms (ie items); whether non punitive terms such as restitution are covered, whether the difficulty in identifying the amounts of fees owing means they must not be included etc

              Interestingly, the opinion refers back to an earlier run at the same question – in 2016 the FSC was required to opine on whether the ballot measure was clear enough (ie not too vague for a ballot measure.) It turns out that the sponsors of the ballot measure assured the court on that occasion that all terms of sentence meant precisely what the FSC says it meant in 2020. The FSC observes with a wry grin that it is not suggesting that the sponsors were had engaged in a bait and switch.

              IIRC, the FSC pointed out that when one is sentenced to imprisonment, one is sentenced to A term, not multiple terms, hence the appearance of “terms” in the plural argues against any reading that “term of sentence” refers to the durational sense of term. But feel free to glance at the opinion.

              1. It turns out that the sponsors of the ballot measure assured the court on that occasion that all terms of sentence meant precisely what the FSC says it meant in 2020.

                It turns out that what an attorney said in a colloquy at oral argument about his opinion of the meaning of a phrase shouldn’t carry any weight. That would be worse than the use of legislative history that Justice Scalia decried, because at least there was a chance that those who enacted a bill were familiar with that legislative history, while there’s pretty much no chance that the voters of Florida knew what was said at oral argument.

                The Florida Supreme Court claims not to have relied on this, though. Instead, the court claims to have relied on the text. The problem is that its arguments are bad. It claims that “completion of all terms of sentence including parole or probation” can’t be read as temporal because that would render “all terms of” superfluous. But the court’s reading renders “including parole or probation” superfluous. (That doesn’t mean the court’s reading is necessarily wrong; rather, it means that the canon against superfluousness can’t carry the weight the court puts on it. And it’s particularly silly to apply it with filler words like “all terms of.”)

                My favorite part is when the justices disclaim any notion that sentence is a technical term while they define it with resort to the way courts have used the phrase in other states in other contexts.

                And in terms of what the voters supposedly understood, it seems unlikely that they understood that they were enacting a constitutional amendment to reenfranchise felons that would not actually reenfranchise almost any felons.

                1. I appreciate that the FSC reached its opinion on the text (correctly IMHO) and not on the briefs and oral argument of the Sponsor.

                  But there are two different arguments going on in this thread – about what the text of the Amendment actually means, and about whether the “all terms” means “all obligations” team are now acting in bad faith.

                  As to the second, it is plain that the actual, or implied, arguments that the Florida Legislature was acting in bad faith when it enacted the statute implementing Amendment 4, by treating “all terms of sentence” as referring to obligations not duration are nonsense.

                  For the Sponsors and the non profits supporting the passage of the Amendment argued precisely the same thing in court, and in missives to the voters before the ballot. “All terms” = duration didn’t rear its head until after the ballot. Before the ballot “all terms” = obligations had the field to itself.

                  There is bad faith involved, to be sure. But it lies on the shoulders of the bait and switchers.

          3. No, it wasn’t discussed before. The legislature passed a law stating financial obligations were included in the “all”. The big sticker for voters was which felons would benefit.

        2. hey remember when California, in the grip of Democrats, thwarted the will of the people with regard to natural marriage? Pepperidge Farm remembers

          1. Do you expect better Americans to be gracious toward conservatives as the culture war winds down?

            1. We should bow down to your science too.

              Your science that says men can get pregnant, women have penises, exactly two gays can adopt a child and produce better outcomes than natural parents, and that Mother Earth gets mad and starts fires.

              Good one.

              1. You get to whine and whimper, mutter and sputter, and rant and rail about it all you like, but you will comply with the preferences of your betters (the liberal-libertarian mainstream), just as you have done throughout your life.

                Thank you for your compliance.

                  1. Your thing where you post contextless twitter movies of blacks appearing acting badly continues to be a Stormfront move.

                    Think about what your choice of confirmation bias says about your worldview.

                    1. I care more about a gnat’s fart than I do about your opinions.

                    2. OK. Because I’m not posting for you, Sam. You’re just fish in a barrel.

                    3. If you didn’t post for me, why did you address me?

                      I don’t think you’re all there.

                    4. Sam: It’s a public forum. More than just you and I read our exchanges.

                      Enjoy your Saturday!

                    5. You’re a prop, Sam.

                      Useful for dismantling the clinger cause.

                      Thank you for your service.

                    6. You addressed me, but it wasn’t for me it was for Gentle Reader?

                      lol good grief

              2. “Your science that says men can get pregnant, women have penises, exactly two gays can adopt a child and produce better outcomes than natural parents, and that Mother Earth gets mad and starts fires.”

                Don’t know wtf you’re talking about for the first two, (assuming you just misunderstood some real science) but the third one definitely can happen. The last one is known to happen, and was forecasted to be more likely with global warming.

            2. What Kirkland either doesn’t know or refuses to admit is that the middle of the 20th Century was a hell of a lot more homophobic than the late 19th & early 20th Centuries were.

              1. Depends on where you were at the time.

    2. If felon enfranchisement such a big deal, then vote for the public officials that will further your goals. Duh.

      1. Or vote with your feet and move to one of the many states in the majority that allows felons to vote just because they’re citizens of the United States.

  2. Well of course they don’t. You don’t have a sense of history beyond your need to be pedantic. The reason you disregard the arc of history is because you know deep down that the people who study it closely will judge people like Pryor poorly. So you need to disregard the possibility of mistake to assuage your limited conscience. As long as you focus on owning the libs in the here and now, that’s the only thing that matters. But of course, you personally don’t need to be concerned about the court of history. I’m sure the PhD student who presents the conference paper on the effect of legal blogging on the legal system won’t even bother putting you in a footnote.

    Also, anyone who uses the phrase “pathetic virtue signaling” is used by people of incredibly weak morals. I never thought you were a deep moral thinker, but this pretty much confirms it.

    1. The paper that that PhD student writes won’t be read by as many people who comment on this one post. And like the Scholastics, the current crop of clergy in academia preaching their tedious intersectional pieties and claiming inside knowledge of the arc of history will likewise be supplanted.

        1. More big talk from culture war casualties whose only hope is the mercy liberals may offer conservatives.

          1. Kirkland, Zenith is more than just the name of a manufacturer of televisions. Never forget that Hillary Clinton was a Goldwater Girl.

            Tides turn, and it is those riding them who least expect it.

            1. When you, Prof. Volokh, the Federalist Society, and Republicans think you are ready to start turning the tide against the liberal-libertarian mainstream in the annals of American progress, let me know.

            2. “Tides turn, and it is those riding them who least expect it.”

              Alas, not on command, they don’t.

    2. Yeah, “pathetic virtue signaling” and his sycophantic praise of Pryor….Josh Blackman is the pathetic one. It is apparent that he presumes such sycophancy is the path to advancement in the Trump-enthralled GOP. He might be right. God help us if Josh ever gets anywhere that requires quality analysis, integrity, or basic morals.

      And funny that he quotes the oath of office, especially this part:

      “…I will administer justice without respect to persons, and do equal right to the poor and to the rich…”

      This “implementation” of Amendment 4 was obviously aimed at disenfranchising poor minorities. Is Pryor really doing equal right to the poor and to the rich?

      Pryor writes: “To reiterate, Florida withholds the franchise from any felon, regardless of wealth, who has failed to complete any term of his criminal sentence—financial or otherwise. ”

      Pryor must have thought Anatole France was serious when he wrote:

      “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

      His irony detector needs adjustment.

      1. As I have previously observed, the alternative to that majestic equality, in practice, is not that the poor get a break. It’s that the wealthy get treated BETTER than the poor, rather than the same as them.

        We have to ask, in each of these cases: SHOULD the law prohibit people from sleeping under bridges? Begging in the streets? Stealing?

        If the answer is no, then neither the poor nor the wealthy should be prohibited. If the answer is yes, both the poor and the wealthy should be prohibited.

        Under no circumstances should there be a double standard.

        1. Brett,

          You are entirely missing the point. France was making an observation about the justice of a society where poor people are reduced to sleeping under bridges or begging or stealing bread to eat. Your point about equality is one big whoosh.

          Likewise, on the Florida statute, you and Pryor seem to be saying, the law is fair, everyone has to pay the fines and fees. At least you acknowledge that, in the voting case, perhaps there shouldn’t be laws requiring the payment of monetary fees in order to get the right to vote.

          In the Florida case, the problem very much is whether having your right to vote restored ought to depend on one’s access to financial resources. The answer is no. Unless you also favor poll taxes. The fact that the issue is restoring a right makes no logical difference. Providing different civil rights to citizens based on wealth is no different whether you are discussing all of the citizenry or a subset of equally situated citizens. In either case, you are distributing voting privileges partly based on wealth.

      2. Just like the poll tax wasn’t discrimination between the wealthy and the poor. Because if a wealthy man didn’t pay the poll tax he wouldn’t be allowed to vote either. Pryor is the epidemy of a fucking idiot.
        Pryor is essentially packaging Plessy v. Ferguson in pretty language. Cant be racial discrimination since blacks get fountains too.

        1. This, Shadowy. Succintly and accurately stated.

  3. Ah whoops. Posted before deleting a clause. That should be” anyone who uses the phrase “pathetic virtue signaling” has incredibly weak morals.”

    1. Either way, your condemnation of the rule of law shows it is you who has no morals at all, except that of rule of men.

      1. Where did I condemn the rule of law? I said nothing about the law. And law is unrelated to morals anyway…unless you want to assert that only laws give us morals. And if you do, you need to defend every law ever passed as moral. So I await your explanation of why the refusal to follow the Fugitive Slave Act was an immoral act.

        I don’t have “no morals” my morals are based on the duties we owe to each other as humans. Duties not to harm. Duties not to neglect. If I had no morals I wouldn’t think that we owed each other anything.

        1. Roger Taney most likely thought he was doing the right thing.

          1. So do you. But you’re both wrong.

          2. Prof. Blackman most likely thinks he is doing the right thing.

        2. Embracing the Court of History is as good as throwing the Court of Laws under the bus. Either do what the law says, interpret the laws as they are written, or do what you think future men will find correct.

          1. “do what you think future men will find correct.”

            Which always seem to coincide with what they want to do in the present.

            What a neat argument.

            1. Being on the right side of history, and winning the culture war, is very neat.

              You’ll have to take my word for it.

              1. I’m not going to watch Cuties, Kirkland. No matter how much you demand I do as part of your Culture War.

                1. Neither am I.

                  But I’m also not buying your dumbass moral panic.

                  1. OK, so is “Cuties” something that we have to accept from our betters or not? It’s so confusing.

                    1. Yes, TiP. You must watch it, AND like it! your betters insist.

                      Sheesh. Lots of middle between ‘not my thing’ and ‘it’s an ode to pedophilia.’

                  2. Speaking of dumbass moral panic, have you seen all the cities burned and looted and people murdered because of a couple of dumbass drug felons and rapists?

                2. I do not expect you to watch Cuties. I do not expect to watch Cuties.

                  I expect you to get lathered about it, though.

                  I also expect you to get crushed in the culture war. And I expect to enjoy watching it continue to occur.

                  1. You really think your pro-pedo stuff is a culture war winner? I know it’s all gay rights and stuff, but I think there are some lines us Normals won’t cross.

                    1. If you’re a normal, then let me be as abnormal as possible.

            2. “Which always seem to coincide with what they want to do in the present.

              What a neat argument.”

              I make a similar observation when people choose to try to tell me what God wants. Somehow, it always seem to coincide with what the speaker wants.

              1. Bring God into it, and you can make him say whatever you want.

  4. A prior Eleventh Circuit panel had affirmed the district court’s preliminary injunction which struck down the “pay up first” requirement. Today’s en banc decision, on appeal from the district court’s entry of a permanent injunction to the same effect, skipped panel review and went direction to en banc review on motion made by the State of Florida. I don’t recall seeing that before.

    1. Seems like a pretty important procedural question. Nobody’s written about it?

  5. I don’t think that academic historians are a very good substitute for God as judges.

    If by the “Court of History” you mean academic historians with credentials out the wazoo, then the Court of History would presumably include Prof. Woodrow Wilson, distinguished historian and Princeton president – later President of the United States – who expressed the Court of History’s view that slavery Wasn’t so Bad:

    “But where the master was himself at hand there was almost always moderation, a firm but not unkindly discipline, a real care shown for [slaves’] comfort and welfare.” /Wilson, A History of the American People, vol. 4, New York, Harper and Brothers, 1907, p. 196.

    Claude Bowers wasn’t an academic, but he was a supporter of FDR and the Spanish Republicans of the Thirties, so that should compensate for his technical lack of academic qualifications. Here is what he said, on behalf of the Court of History, about Reconstruction:

    “Northern press correspondents were in the South mingling with the lowest elements in bar-rooms, brothels, to pick up the meaningless mouthings of the vulgar for political consumption. Silly stories of ‘outrages’ were telegraphed without investigation.” /Bowers, The Tragic Era, Sentry Edition, 1957, p. 141

    So we see that all those soreheads who complained about slavery and equal rights were judges harshly by the court of history…

    1. they actually exist in the present.
      If you want to know what they think, you can ask them.

      there’s lots of people who tell you what God wants, but He seems less inclined to signal directly. California has no shortage of burning bushes, but none of them are speaking. Was that last hurricane a complaint about allowing gay people to still be gay, as some claim, or is it a complaint about reluctance to address global warming?

      1. Maybe the lack of addressing Climate Change is God’s punishment for that gay thing.

        You didn’t think of that, did you?

        1. No, I generally restrict my thinking to the reality-based world, you superstitious bigot.

          1. Your reality based world where a man can turn himself into a real authentic woman just by wishing upon a star?

        2. “You didn’t think of that, did you?”

          No, I didn’t think of that amazingly stupid thing you wrote, because apparently God wants my brain to work, but doesn’t require this of you.

      2. The U. S. A. was founded based on a belief in a God – to be sure, a vague nonsectarian, fraternal-society God, but a God nonetheless. Hence the repeated resolutions by the Continental Congress and, after the Constitution, by Pres. Washington, calling for prayers and repentance, repeated allusions to God, and so forth.

        Now that we’re enjoying (and squandering) what the Founders gave u s, it’s lots of fun to mock them as superstitious rubes for thinking there was a God who held men and nations accountable for their actions. But if they hadn’t believed it, today we might have all been sipping tea and eating bangers and mash.

        1. “The U. S. A. was founded based on a belief in a God – to be sure, a vague nonsectarian, fraternal-society God, but a God nonetheless.”

          A god who helps those who help themselves.

          1. Zing! I never thought of that! And I bet those clingers like Washington never thought of it, either.

        2. There is a difference between saying many of the Founders were religious and claiming that the country was founded based on religious belief.

          Evidence for the former is not evidence for the latter.

          1. “many of the Founders were religious”

            Which of them were not?

            1. “’many of the Founders were religious’
              Which of them were not?”

              Who cares? What difference does it make?

              1. What difference does your comment make?

    2. “I don’t think that academic historians are a very good substitute for God as judges.”

      What is it with clingers and their attempts to rely on superstition in reasoned debate? Is it childhood indoctrination? Is it lack of education? Is it immaturity? Is it just a tribal opposition to a reality-based world in which they are losing?

  6. So, I noticed that Pryor kept referring to the plaintiffs as “the felons.” This was incredibly unprofessional and disrespectful. They’re the plaintiffs. They have names. They’re listed in the caption to the case. They may be making a case because of their status as convicted felons, but to the court, they are plaintiffs deserving respect. He should refer to them by their individual names or collectively simply as Plaintiffs when he doesn’t need to distinguish them from a separate group of plaintiffs. I suspect he did this as a way to signal their arguments aren’t even worth his time (where’s the post on this form of virtue signaling, Josh?).
    It’s a shame no one on the majority took issue with this.

    1. LTG,
      I’m totally sure Josh will be commenting on it. One hopes that he includes the description of “pathetic,” as he has no problem so describing other examples of, to him, virtue-signaling. I have confidence that Josh has the integrity and character to be consistent in this way. I’m totally holding my breath for this to happen.

      1. Between this, Walker’s “Bar Bureaucracies” and the Ho/Duncan pronoun freakouts, recent conservative SCOTUS favorites have a real problem with treating the parties before them with respect in their opinions.

        1. “the Ho/Duncan pronoun freakouts”

          It seems that some child porn aficionado named Norman Keith Varner, petitioned from federal prison to change his name to Loretta, I mean Kathryn Nicole Jett. He also wanted to be addressed as a woman. He lost.

          This is obviously the worst judicial injustice since Dred Scott was pronounced a slave.

          1. For grownups in grownup jobs, professionalism is a virtue.

            1. I think the clingers know their cause is lost. Why respect the norms and polity any more? Plus, lashing out feels good to some people who are getting stomped.

              1. Hey, here’s some people getting stomped in your culture war!

                https://twitter.com/AmyMek/status/1304724370628030464

                1. Does Prof. Volokh perceive any connection between his repetitive use of a vile racial slur and his fans’ repetitive posting of racist videos?

                  1. What’s racist about that video?

                    1. You know what liberalism will get you? *posts a contextless video of blacks beating up a white guy*

                      As ‘not racist’ as a Jesse Helms ad.

                    2. I notice how you’re not tone policing Kirkland’s actual violent comments.

                      Weird.

                      P.S. That video wasn’t blacks beating up a white guy. Again, you are a filthy liar.

                    3. “I notice how you’re not tone policing Kirkland’s actual violent comments.”

                      My comments are not violent. I refer to the clash of ideas . . . the course of the culture war.

                      All I advocate is that the better ideas win. Of course, that’s easy for me to say . . . my ideas are the winners in America.

                    4. “Why respect the norms and polity any more? Plus, lashing out feels good to some people who are getting stomped.

                      Go hop on a different sock puppet and try again.

                    5. This isn’t your tone, it’s content.

                      Your racist content.

                2. “Hey, here’s some people getting stomped in your culture war!”

                  Here’s a video that shows that picking a fight when you’re outnumbered might not be a swell idea!

    2. If he’d written “those lousy felons” over and over again, you’d have a very good point.

      Many judges, and many lawyers (me among them), try to avoid referring to litigants as “appellants” and “appellees” because those terms are easily confused, even by those who know better. What these particular appellees had in common is that they are felons. Their legal claims stem precisely from that shared status. “Poor, abused felons” would also have been unprofessional. But “felons” is descriptive and precisely accurate.

      1. “Differently law-abiding individuals.”

      2. Many judges, and many lawyers (me among them), try to avoid referring to litigants as “appellants” and “appellees” because those terms are easily confused, even by those who know better.

        And some of us are mightily grateful for that, since sometimes judges are ruling on cases that are stuffed to the gills with counter-thises and counter-thats, and the fellow who burned down his neighbor’s barn turns out to be the plaintiff not the defendant because he’s suing the barn owner for burns he got lighting the fire.

        1. Except in this case, he could have used the term plaintiffs, like the dissenters did. Party alignment was not complex.

          1. To a lawyer, it’s not complex. To many laymen, even well-educated laymen, it’s a term of art that they have to process every time they hear it.

            I enjoyed Prof. V’s recent post about his local counsel’s notation system for his calendar, which uses “NT” and “EE” for docketing appellate briefing deadlines. “NT” is short for “appellaNT.” This is certainly clever, and I can see an argument that it would reduce brain fart errors in which “appellant” and “appellee” get switched, even by lawyers, paralegals, and legal secretaries. But in my files and my practice, I’d write “Smith brief due” and “Jones reply brief due,” concision be damned.

            Long ago, when the solar system was still cooling, I clerked for Judge Carolyn Dineen King on the Fifth Circuit, who came to that court from a securities-law practice, and who was (and I’m sure, still is) therefore very keen on conscientious use of defined terms. One of the most important draft opinions I ever did for her was an en banc securities case involving alleged fraud perpetrated upon those who owned a particular class of convertible debentures of the Collins Radio Company. I used “Debentureholders” (no hyphen) as the defined term to represent the class, but she couldn’t quite get comfortable with that — “It looks like one of those long German words used to describe some weird mood or psychological state,” she said — and she insisted that I instead replace every instance of “Debentureholders” with “Holders of Debentures,” which I thought was even more clunky. She being the judge and me the clerk, this was resolved decisively against me.

            I suppose Judge Pryor could have constructed his first reference to read, “Plaintiffs-Appellees Kevin Leon Jones, Rosemary McCoy, and others (hereinafter “the Felons”). I guess that strikes me as even more likely to give offense.

            “Fiscally Delinquent Persons of Felonious Backgrounds”? Not an improvement.

    3. The de rigueur euphemism is “people who have been involved in the criminal justice system,” which involves putting on a whole lot of lipstick on felons.

    4. It’s accurate, is what it is. Felons may deserve respect, but that respect doesn’t extend to ignoring that they’re felons. If they weren’t felons, they wouldn’t be the plaintiffs.

      Respect can’t demand ignoring the facts. No matter how often people make that demand.

      1. “Respect can’t demand ignoring the facts. No matter how often people make that demand.”

        This is coming from the guy who has said on different occasions that Jews he doesn’t like aren’t real Jews. So I don’t think you’re in a position to make such broad pronouncements on either facts or respect.

        1. I have literally never, in my entire life, said that. Learn the difference between paraphrasing and putting words in someone’s mouth.

          1. You on 2/7: “‘Jewish Democrat’s’ are Jewish like I’m Irish: I bake soda bread once in a while, and enjoy an occasional corned beef and cabbage, and that’s about it for being Irish.”

            You again when called out “I’m not policing them, I’m just noticing that, for most of them, it’s got as much significance as my being “Irish”; It’s an ethnicity, not a religion. This is hardly a novel observation, nor much disputed.”

            What were you trying to say other than
            Liberal Jews aren’t real Jews?

            Then there’s this gem on 7/31: “Look, he’s an evil international banker with nefarious plans. It’s totally outside our control that he’s also in some very attenuated sense “‘Jewish’”

            This was followed by your calling Soros a Nazi.

            “Maybe that’s because he’s conspicuously evil, right down to the Nazi past?”

            This is an antisemitic smear bordering on Holocaust Denial. Because to assert such a thing is to suggest that this 14 year old Jewish boy wouldn’t have been sent to the death camps by actual Nazis had his family not placed him with that Hungarian agricultural ministry official. It’s not much of a leap Jews can be Nazis to you JAQing off about numbers.

            Face it Brett, you deny the Jewish identity of Jews you don’t like so that you can launder your antisemitism.

            I don’t need to put words in your mouth. The ones that come out are mighty offensive on their own. And until you own up and apologize for your shockingly offensive views on Jewish identity, I will simply assume you to be an antisemite. Just because David Bernstein and Eugene Volokh don’t have the integrity to call you out, doesn’t mean others won’t.

            1. Huh, I guess it tells me a lot about your world-view that you think “different party” is the same concept as “don’t like”. Personally, I live in a world where things are a little more complicated than that.

              LTG, “Jew” refers to two different things. One is an ethnicity, the other a religion. Both really are “Jews”, just in a different sense.

              1. LTG, “Jew” refers to two different things. One is an ethnicity, the other a religion. Both really are “Jews”, just in a different sense.

                No, actually. Please don’t try to goysplain Judiasm.

                1. Whyever not ?

                  It makes a pleasant change from the heathen damnedsplaining Christianity.

                  1. God save us from the pious.

              2. And it tells me a lot about your world view that you can’t acknowledge how offensive your views are.

                Seriously, go tell my Jewish friends who are Democrats they don’t need to bother with observing the High Holidays this year, cause they’re not really Jews. See what would happen.

                1. I understand perfectly well that you find my views offensive.

                  “Offensive” isn’t a characteristic of somebody’s views. It’s a characteristic of how somebody else reacts to them, which is why some people will be offended by my views, some by your views.

                  “Being offended” isn’t a passive reaction. It’s an action on the part of the offended, and often a volitional action.

                  The left have, over the last few decades, weaponized being offended. Advanced the idea that taking offense at something means that something is bad. But only if it’s them being offended, of course; If their political foes are offended, it’s just a sign of their intolerance. It’s either enlightenment or intolerance, depending on whose ox is gored.

                  People have noticed, and what you might call “offense inflation” has set in: As people react to the oversupply of offense by caring less about whether somebody is offended, the offended react by ramping up their degree of offense. Ultimately you get insanity such as is discussed here at Volokh, with academics being sanctioned for legitimately using innocent words that just sound like a slur to some moron.

                  I’ve made what ought to be a commonplace observation: For some people, “Jewish” is a religion. For others, “Jewish” is a nationality.

                  Just like some people are Irish in sense of nationality, and some people just drink green beer on St Patrick’s day.

                  You shouldn’t take offense at obvious truths; It’s neither intellectually sound, nor particularly persuasive. It just marks you out as attempting to control other people by being thin skinned.

                  For still others, like Soros, it’s a shield. Conform to the scurrilous stereotype, and nobody is allowed to notice you really ARE an evil schemer. Because having a Jewish parent means your evil schemes must pass unnoticed! To notice them would be bigotry, even if they’re real!

                  1. “The left have, over the last few decades, weaponized being offended.”

                    Thus joining the right. You made because they’re moving in on your turf? Rush made his money by being outraged, simply OUTRAGED by this or that, even if he had to make it up himself.

                  2. After that pedantic discussion of what constitutes offense I’m left with one conclusion: you lack the moral integrity to question whether your views are wrong and antisemitic.

                    Be a better person. It’s not too late.

      2. I’ve yet to see a good argument for how there’s a connection between being a felon and casting an informed vote. For that matter, on policy grounds, felons are less likely to reoffend if they have a stake in their communities, so allowing them the vote actually encourages them to become productive citizens.

        1. The connection isn’t between being a felon and casting an informed vote. It’s between being a felon and casting a well meaning vote.

          You vote on who’s going to be district prosecutor, for instance: The law abiding citizen wants competence. Does the felon?

          1. I’m not sure that either “informed” or “well-meaning” have anything to do with it. (Prof Somin really does have something to answer for with his ridiculous Bolshevik false consciousness crap.)

            It has IMHO more to do with the idea of a social contract – your right of self government is to be restricted by the application of laws made by the community; you abide by the laws and you will get a voice in what they are.

            You don’t abide by them, you lose your voice.

            1. When the government exercises it’s power in the criminal justice system, it is exercising it’s broadest power over human beings. When the government says that the people who experience that power first hand no longer have a voice in how that power is exercised, there becomes less incentive for the government to exercise that power in any accountable way. There’s no political cost for over-criminalizing everything because the people subject to that system also lose their vote. Someone who experiences the full force of government power, which may not have even been exercised correctly or competently, has an extremely strong interest in how that power is exercised.

              1. “There’s no political cost for over-criminalizing everything because the people subject to that system also lose their vote.”

                Not really. Their family and friends can still vote, their Minister can urge hundreds more to vote as well. While their individual votes would be meaningless, the few hundred that each mistreated felon could potentially leverage aren’t.

                1. Gee, Mr. Ed. That black man’s family and friends, and whole community, can still vote, and they do vote. Why can’t they get themselves taken seriously and their concerns addressed?

          2. Yes. The felon could have been subject to an overzealous and unreasonable prosecution and pleaded guilty to a low level felony to get out of jail and avoid a lengthy and uncertain legal process. It happens all the time. So perhaps the felon wants a DA who is competent in exercising their charging authority.

          3. Oh so now we’re only allowing people to vote if they have good intentions? Can’t wait to see where that takes us.

            1. It’s about finding a reason not to count the votes of people who won’t vote the way we want them to. Watch the excuses come out when it turns out these sorts of decisions affect someone who would have voted the way we wanted.
              You can see it most clearly when the GOP politicians try to claim “youthful indiscretion” for things that are insufficiently covered up.

      3. “It’s accurate, is what it is.”

        So is “superstition,” but clingers tend to object strenuously to that term.

        So is “bigot,” but conservatives tend to object strongly to that term (preferring euphemisms such as “traditional values” or “conservative values”).

        So is “sl@ck-jawed,” but that one can get you censored in some cases.

      4. Brett, suppose a particular plaintiff is fat, ugly and stupid, and that all of those are facts. Should the court decision refer to him as “the fat, ugly and stupid plaintiff”? Just because something is true doesn’t mean it needs to be addressed, and I would hope your mother told you that at some point.

        1. I suppose if the plaintiff is claiming rights specifically based on being fat, ugly and stupid…

          1. But these plaintiffs weren’t claiming rights based on being felons. They were claiming rights based on a constitutional amendment that their voting rights couldn’t be taken away because they’re felons.

            1. Sorry, I failed Analogies 101.

              1. As well as the concepts of undistributed middle, necessary conclusions, and outliers.

                1. You see, just because someone makes a concession doesn’t mean he’s inviting you to invent random unwarranted insults and hurl them at him.

                  1. But when his trade is in insults and bad logic, it’s hard to complain that someone is piling on by insulting his bad logic.

                    1. “his trade is in insults and bad logic”

                      Physician, heal thyself.

            2. No, an amendment that said their rights had to be given back to them. Prop 4 doesn’t bar taking a felon’s right’s away. It says they get them back once they’ve completed their sentence.

              The plaintiffs here were felons, who had NOT completed their sentences, but wanted their voting rights restored anyway.

              1. Restitution is not part of a sentence, for reasons I already explained.

                1. Restitution certainly can be part of a sentence, for reasons you already insisted on denying.

                  1. So because you “insist” on being wrong, you’re not wrong?

                    1. I’m clearly not wrong, because I can produce contemporaneous publications from people promoting the proposal, demonstrating that this is what it was understood to mean by its advocates, and you can’t produce any contemporaneous documents taking issue with this meaning.

                      They promoted it as including financial elements of the sentence, then changed their minds after the proposal passed. Not impressed with that.

                    2. It’s not merely contemporaneous publications, it includes actual court briefs. As the Florida Supreme Court noted in its Jan 2020 opinion, referring to pre ballot litigation on whether the amendment qualified for the ballot :

                      In its brief to this Court arguing in support of Amendment 4 being placed on the ballot, Amendment 4’s sponsor, Floridians for a Fair Democracy (the Sponsor), asserted: “Specifically, the drafters intend that individuals with felony convictions, excluding those convicted of murder or a felony sexual offense, will automatically regain their right to vote upon fulfillment of all obligations imposed under their criminal sentence.”

                      The FSC notes that the reference to obligations – together with the sponsor’s counsel’s statement in oral argument that the operative language “means all matters—anything that a judge puts into a sentence” – conclusively resolves the question of whether the Amendment’s sponsors intended “all terms of sentence” to refer to terms = duration, or terms = obligations.

                      The FSC also noted that “some of the very same nonprofit organizations that are currently involved in the lawsuits challenging chapter 2019-162 and that now argue to this Court that “all terms of sentence” simply refers to durational periods” had, pre-ballot, put out statements saying the opposite.

                      For example, the American Civil Liberties Union Foundation of Florida (ACLU of Florida) in its 2018 voter guide informed voters that Amendment 4 “includ[ed] any probation, parole, fines, or restitution.”

                      Oh look – “restitution” ! Who’da thunk it ?

                    3. “I’m clearly not wrong”

                      If you insist on denying it, it must not be so.

    5. I think Pryor let his biases show in this opinion.

  7. Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. ….. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.

    Get thee behind me, Satan: for thou savourest not the things that be of God, but the things that be of men.

  8. “I simply presume that a liberal is trying to shame a conservative into reaching a liberal result.”

    Someone is signaling that they have no shame.

    1. I think a 40-year career at South Texas on the wrong side of history might involve at least a bit of shame.

  9. This “devotion to duty” led them to disenfranchise a lot more black voters than white. And they were perfectly aware of what they were doing.

    1. why do you think there are more black felons than white felons?

      1. Part of it is that black communities are policed differently than white communities. When so many of your felonies are drug related and the police enforce drug laws differently in black neighborhoods than they do white ones, you’re going to have disparities in outcome. That’s not all of it, but it’s some.

        1. Also the disparity in legal representation, jury treatment and sentencing.

        2. Why are black communities, which are often governed by Democrats and policed by Democrats, policed differently than white communities?

          1. Because we’re in the middle of a feedback loop that we can’t get out of.

            There is zero historical evidence that pre-colonial Africa was any more lawless than Europe at the same time (and during the Middle Ages, much of Europe, which was then lily white, was a fairly lawless place). So it’s really tough to make the case that there is anything inherent in having black skin itself that promotes lawlesness.

            However, if you take a large number of people, transport them halfway around the world, make slaves out of them, destroy their family and cultural life, and then spend centuries after that shutting them out of the economy, lynching them when they get uppity, terrorizing them and preventing them from being part of the political process through voting disenfranchisement, it’s not really surprising that you’re going to have a greater amount of criminality in that group. And even after the worst aspects of racism come to an end, the problem is that by then you’re in a feedback loop from which it’s difficult to escape.

            I would predict that if a black Mayflower from Africa had landed at Savannah about the same time the actual Mayflower landed at Plymouth Rock, and the two groups of immigrants had peacefully lived next to each other, that today the black criminality rate probably wouldn’t be much higher, if at all, than the white criminality rate.

            1. Weird how this feedback loop effects lower class blacks only and not middle and upper class blacks.

              That’s the problem with your argument. This criminality doesn’t appear beyond one particular economic class of people. An economic class that’s at the receiving end of decades of Democrat policies. Maybe they are the cause and not this ambiguous, ephemeral feedback loop that seems to skip over huge swaths of blacks.

              1. That some have escaped from it doesn’t mean it doesn’t exist, nor does it mean that it isn’t still a real problem for those who aren’t as gifted as those who did manage to escape. Maybe they’re just not as strong as those who did manage to escape.

                Have you ever actually spent time in the inner city? I did poverty law for ten years. And I’m quite confident that “Democrat policies” have little to do with it.

                1. How did middle class and upper class blacks escape this oppressive feedback loop that weak blacks can’t?

                  What does escape even look like? How does the feedback loop know you’re a middle class black and not a weak poor black when it oppresses someone?

                  You’re talking nonsense.

                  “Have you ever actually spent time in the inner city? I did poverty law for ten years. And I’m quite confident that “Democrat policies” have little to do with it.”

                  Who created the system of laws that you practiced under? Why do you think 10 years in poverty law makes you some sort of social science authority?

                  You argue and believe in this ephemeral concept like an Evangelical does with God.

                  1. And you’re being completely disingenous. Bye.

                  2. “How did middle class and upper class blacks escape this oppressive feedback loop that weak blacks can’t?”

                    education, mostly.

                    “What does escape look like? How does the feedback loop know you’re a middle class black and not a weak poor black when it oppresses someone?”

                    Escape looks a lot like having the choice to be someplace else.

              2. “Weird how this feedback loop effects lower class blacks only and not middle and upper class blacks.”

                In today’s news, it turns out that it sucks to be poor. Poor white folks are also disproportionately likely to be felons.

            2. Those excuses don’t wash. The increase in pathological behavior among blacks (especially black men) did not spike until after the enactment of all of those liberal social justice programs in the 1960s. As Thomas Sowell has suggested, things would be much better if there were fewer “black rednecks” and (many fewer) white liberals who practice the soft bigotry of low expectations.

      2. why do you think there are more black felons than white felons?

        I doubt very much that there are. The 180 seconds I have been willing to devote to an internet search have not revealed to me a demographic breakdown of the Florida felon community.

        But it has revealed that whites are roughly 4.5 times more numerous than blacks in Florida, and a Tallahasse Democrat article claiming that blacks are roughly twice as likely as whites to be arrested and imprisioned.

        Inferring that a newspaper called the Tallahassee Democrat is unlikely to be in the business of underplaying any racial disadvantage that black folk might suffer, I therefore deduce that white Forida felons are likely to outnumber black Florida felons by more than two to one.

        1. captcrisis was lying when he said more black voters would be disenfranchised than whites?

          1. No, because captcrisis was talking about raw numbers and not percentages. But then, you’re smart enough to have already known that at the time you posted.

            1. captcrisis was talking about raw numbers.

              Lee Moore’s refutation was talking about raw numbers.

              I responded to Lee Moore, so clearly in context I was too.

              But somehow you think I didn’t know captcrisis was talking about raw numbers?

              That’s pretty weird.

              1. No, what’s weird is that anyone pays any attention to you given your penchant for question begging, subject changing, and playing fast and loose with what other people actually said.

              2. Dude, captcrises’ and Lee Moore’s words are right there.

                You’re the first person to bring up percentages.

                Does your web browser not work like a normal persons? Like, can’t you see everyone else’s comments are only the last one posted?

                1. Or** only the last one posted

                  1. I can see that you’re being completely disingenuous. Bye.

  10. While I agree that sometimes appeals to history are mere hand waving, this is not one of those times, and here’s why:

    There are some legal questions that have only one right answer. A 20 year old who was born in France cannot be president. Utah cannot establish Mormonism as its official state religion. Twenty senators are not enough to convict someone in an impeachment trial. Those questions have only one right answer.

    But in this case, if you read both the majority opinion and the dissents, there were good arguments on both sides, meaning that the court got to choose which arguments it adopted and who would be hurt as a result. And it chose to disregard the will of the Florida voters, bless thinly veiled racism, and disenfranchise people for the benefit of the Republican Party. It did all that not because it was compelled to, but because it chose to. And no, history is not going to look favorably on that.

    It strikes me that when there are legitimate arguments on both sides, the court should choose the one that enhances democratic values, doesn’t bless racism, and doesn’t deprive people of their fundamental right to vote for partisan advantage. But no, this court said that because the law doesn’t force them to do the right thing, they won’t do it of their own choice.

    1. What sort of doublespeak gobbledygook nonsense is this? If there are legitimate arguments on both sides, how can choosing one of those legitimate arguments be racist, undemocratic, and abusing of rights?

      Are you saying there is a legitimate racist, undemocratic argument that also abuses the rights of these felons?

      1. No, I’m saying that just because a policy is racist doesn’t mean a government lawyer worth his salt won’t be able to find something in the text to permit it. Remember, the issue here was whether the Constitution permits these restrictions, and not whether they are a good idea or come from pure intentions.

        1. You said there were good arguments on both sides. What were the good and legitimate arguments, in your view, for the side that won?

          And how are those good, legitimate arguments simultaneously racist, undemocratic, and abusing people of their rights?

          1. The best argument in favor of the side that won is that under federalism, states have the right to decide for themselves when and how to re-enfranchise voter, which is basically what the majority said. However, the fact that you have the right to do something doesn’t mean that you might not be doing it out of a racist motive.

            Suppose the Florida legislature said that white felons are re-enfranchised automatically whereas black felons have to go through a process. That’s a clearly racist law that should be struck down, and if you’re the lawyer arguing in favor of the law, you are nevertheless going to beat the drum for federalism. And on its face, federalism is a racially neutral argument, but in this case it’s being applied in a racist manner. I have no idea what this court would say in that case, but I know what I think it should say: Even though a principle may be racially neutral on its face, if it’s applied in a racist manner, it’s unconstitutional.

            So, back to my original point, the real question before the court is which value does it consider more important, federalism or equality. It had the right to choose. It chose thinly veiled racism and partisan advantage.

            1. White felons make up 2/3rds of the disenfranchised felons in Florida.

              If it’s racist, it’s racist against whites.

              1. I just googled it. In Florida, 2,555 blacks were 100,000 are currently incarcerated, compared to 536 Hispanics per 100,000 and 626 whites. So blacks are over-represented in the prison population by a factor of roughly 4-1.

                1. Note also, racially disparate sentences will produce skewed racial distributions among people incarcerated. If blacks and whites commit a particular crime at equal rates, but blacks on average get sentences twice as long as whites get, then at any moment you sample prison populations who committed that crime, you will find about twice as many blacks as whites. You would be mistaken to conclude from that the blacks were more likely to commit crimes than the whites.

                2. Those are all prisoners though not felons, right? Those numbers might suggest possible disparate impact but only if felon population reflects same racial composition as overall prison population. I can think of reasons to think that either is or is not the case. Do you know of any actual numbers on felons by race?

                  1. “Those are all prisoners though not felons, right?”

                    You’re suggesting that some of the convicts weren’t actually guilty of the crimes they were charged and convicted of, and thus not actually “felons”?

              2. “White felons make up 2/3rds of the disenfranchised felons in Florida.
                If it’s racist, it’s racist against whites.”

                It’s racist against whites, but it’s even more racist against blacks, and neither of these is the issue, since a lot of poor whites might not vote for Republicans, either, and the primary point of disenfranchisement is to disenfranchise the people who were going to vote for the other guys instead of our guys.

        2. Back when slavery was still a thing. opponents and proponents of continuing the institution used to amuse themselves by quoting Scripture in support of their position.

    2. Rather, you’re choosing to ignore that “all”, which was what the voters ratified. Let’s look at some coverage at the time:

      A closer look at Florida Constitutional Amendment 4

      “Amendment 4 would automatically restore voting rights for people who have a felony conviction and have completed parole or probation and paid restitution. Murderers and sex offenders would be excluded.”

      The Palm Beach Post: “The “Voting Restoration Amendment,” which was approved Tuesday to appear on the ballot as Amendment 4, would automatically restore voting rights to felons who have served their sentences, completed parole or probation and paid restitution. Murderers and sex offenders would be excluded.”

      The Tallahassee Democrat: “To be eligible, these felons must complete “all terms of sentence including parole or probation.“ That means they would have paid restitution, court costs and fees, and competed community service, house arrest, jail, and/or prison sentences, plus any other special conditions of parole or probation.”

      It’s simply the case that the law you’re objecting to implements the amendment AS IT WAS PRESENTED TO THE VOTERS.

      Now, as is often the case, the amendments’ backers would prefer that some parts of their amendment, adopted to gain support, be ignored. The court refused to enforce that wish.

      1. And these weren’t cherry picked accounts. They were just the first three Florida based news reports on the topic that I found, doing a search that excluded results after the litigation began.

      2. Brett, you really shouldn’t give links that don’t support your position, because I’m actually going to read them. According to your own link:

        Amendment 4: Voting Restoration Amendment

        Ballot summary: “This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”

        Newspaper editorializing to the contrary, nothing in there about restitution.

        1. The bottom line is, I can point out multiple contemporaneous news accounts saying “all” included financial penalties, and you can produce precisely none denying it before the election. Before the backers decided to change the terms of their amendment after it passed, and went to court to have it only partially implemented.

          “All” meant “all” until the backers changed their minds after winning.

          1. But the issue is what the law says and not what news reports say it means.

            1. The law says “after they complete all terms”.

              1. Brett, and Sam, restitution is not part of a sentence. A sentence is to punish, and restitution is to make the victim whole again. They have different purposes. So restitution *cannot* be part of a sentence. A fine can be.

                1. Brett, and Sam, restitution is not part of a sentence.

                  Then on what authority can the perp be required to pay it ?

                  The purpose of those terms of a sentence that impose a punishment, is punishment.

                  The purpose of those terms of a sentence that impose incarceration and post release supervision, is (inter alia) the protection of the public.

                  The purpose of those terms of a sentence that require payment of court fees, is to defray court costs.

                  The purpose of those terms of a sentence that impose obligations to pay restitution is to compensate the victim.

                  And the purpose of those terms of a sentence that require the perp’s severed head to be stuck on a pole and displayed for a week outside the shopping mall, is deterrence.

                  They’re all terms of the sentence, even if not all of them are intended to punish.

                  1. No, they’re all terms of the final judgment. But the “sentence” is that which punishes the defendant. It’s not unusual for a lawsuit (which in this context includes a criminal proceeding) to include multiple issues, and for the remedies for one issue to be different than the remedies for a different issue. And sometimes the remedies overlap. But conceptually, they are different.

                2. Brett, and Sam, restitution is not part of a sentence. A sentence is to punish, and restitution is to make the victim whole again. They have different purposes. So restitution *cannot* be part of a sentence.

                  Can you point to some authority for this proposition? Restitution is understood as part of a criminal sentence in every jurisdiction I’ve ever practiced in, and that seems to be consistent with my reading of Florida’s restitution statute, Fla. Stat. § 775.089 (which, incidentally, can be found in a chapter called “General penalties; registration of criminals”.

              2. All terms, including probations and parole.
                you get caught doing the crime, and so you get charged and convicted.

                then, the judge sentences you to a term in prison, and/or a term of probation. some of the prison time may be converted to a term of parole. during the length of these terms, a convicts rights to be in society are limited.
                “terms” = lengths of time.
                To apply the way you want it, the word choice would have been “elements”… has the convict completed all the elements of their sentence?
                The loss of the franchise goes back to the imaginary “civil death penalty” that used to be imposed on convicts. Since we’re pretending they’re dead, we’re not really infringing any of their rights when we seize their property, prevent them from possessing firearms, or any of the other things that convicts lose.

            2. But the issue is what the law says and not what news reports say it means.

              Sure, but several examples of contemporaneous news articles, statements by supporters of the Amendment, and a court brief by the official Sponsor saying that the Amendment means “X” and the total absence of any contemporaneous statement by anyone stating that it meant “Y” is at least some evidence of the original public meaning of the text.

              If you have many folk saying it means X and nobody saying it means Y, at the time the thing is being passed into law, the claim that the original public meaning of the text is Y is by no means dead, but it’s got a bullet in the leg.

              For the avoidance of doubt, I am not suggesting for a moment that, as a general rule, newspaper articles or statements by leftist non profits should be mistaken for the truth. But even statements by notorious dissemblers can carry some weight when they are admissions against interest.

        2. “Newspaper editorializing to the contrary, nothing in there about restitution.”

          What is in there is that they have to pay restitution if it is part of the terms of their sentence. They don’t have to pay and restitution if it is not part of the terms of their sentence, but I don’t think anybody is claiming that they do.

          1. But restitution cannot be part of a sentence since it has a different goal. Restitution is to make a victim whole; sentencing is to punish. It’s two different animals.

            1. Goal is orthogonal to sentence. Whether something is part of the sentence depends on the actions of the court at sentencing, not what you think their goal is in demanding that the convict do something.

              1. “Goal is orthogonal to sentence.”
                Yes, this is the complaint about your interpretation.

  11. I’m pointing out multiple news accounts which demonstrate what that “all” was understood to mean: ALL, including financial elements of the sentence. That’s how it was sold, that’s how the voters understood it. And once it past, the backers decided that they didn’t really want it enforced as they’d sold it, they wanted it more generous than they’d told the voters it would be.

    Commentary: Amendment 4 will save taxpayers money, give felons a second chance

    “Florida’s 13 million voters have a once-in-a-lifetime opportunity to help convicted felons who have paid their debt to society earn the right to vote, and to a second chance.

    Called the “Voting Restoration Amendment,” a proposed constitutional amendment will grant most of the 1.7 million convicted felons the right to vote and help select their elected leaders. That’s a good thing. It makes sense.

    To be eligible, these felons must complete “all terms of sentence including parole or probation.” That means they would have paid restitution, court costs and fees, and completed community service, house arrest, jail and/or prison sentences, plus any other special conditions of parole or probation. Felons convicted of murder or a felony sex crime wouldn’t be eligible and would have to go through the regular executive clemency process.”

    Garcia is the author of two books on executive clemency: “How to Leave Prison Early” and “Second Chances: Florida Pardons, Restoration of Civil Rights, Gun Rights and More.” He can be reached at [Email removed because it put my comment into moderation.]

    1. Brett has gone full anti-textualist, it seems.

      Not even legislative history, but contemporary media accounts are the new hotness!

      When you’re really outcome-oriented, any port in a storm.

      1. “Anti-textualist”? On what planet does text that says, “all terms of sentence including parole or probation” not include fines that are terms of a sentence?

        1. And how is it anti-textualist to demonstrate the public meaning of the text by providing examples of how it is understood by the public? I’m not sure you understand any of this stuff, Sarcastro.

          1. Original public meaning is not part of textualism. It’s also not part of legislative intent. I don’t see fines in the text. I see a bunch of other things that do not include restitution. Pretty fundamental statutory interpretation- start with the 4 corners of the text.

            Contemporary media might be legit for constitutional interpretation, but it makes no sense for statutes. The legislature’s thinking is what defines the laws they pass, not public thinking.

            This is cherry picking of sources, and it’s not subtle.

            1. Original public meaning is not part of textualism

              All together now. Oh yes it is.

              It’s the original public MEANING OF THE TEXT

              I see a bunch of other things that do not include restitution. Pretty fundamental statutory interpretation- start with the 4 corners of the text.

              but it seems you missed “all terms of sentence” which is hiding in plain sight within the four corners of the text.

              Get some better reading specs.

              1. Textualism, the jurisprudential doctrine, does not look at sources beyond the text.

                1. Sarcastro’s textualism just sees a bunch of letters on a page, throws its hands up, and walks away.

                  1. I’m not a textualist. I am telling you what it is, as defined by lawyers and judges.

                2. Sarcastro, you’re simply wrong about that.

                  Sometimes textualism doesn’t have to look beyond the text, because you’re dealing with words and phrases that are utterly unambiguous. Numbers, maybe.

                  In other cases, textualism gets you part way there, and you have to venture a bit beyond the text, to see what was intended by the text. Looking at how people promoting a proposal explained it, and noticing that nobody had contradicted them, is a perfectly legitimate exercise in textualism.

                  Advocates of this proposal were explaining it as including fines and restitution; “All terms” meant “all terms”, not “all of the term”. And nobody was saying, “Wait a minute, that’s not what it means!” Nobody!

                  Until after the election, when the proposal backers, having safely won the election, changed their minds about what their own proposal meant. Classic bait and switch.

                  1. Textualism doesn’t look beyond the text. You’re describing legislative intent.
                    From ze wiki: Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.

                    You’re also describing original public meaning, which has no place in statutory interpretation. But you have some good sources from there so you go for it.

                    1. I’m advocating a meaning which is clearly consistent with the text. So consistent, that, if you had no further evidence, you’d be stuck with it. I’d agree that if you could produce evidence that the proposal was widely understood to mean something else, “all terms of sentencing” has, barely, enough wiggle room to permit the meaning YOU want.

                      But public understanding clearly agrees with the straightforward denotation of the text. “All” did mean “all”, not “some”.

                    2. Your doctrine is a novel one. One not even one liberals adhere to, much less post-Scalia conservatives.

                3. Textualism, the jurisprudential doctrine, does not look at sources beyond the text.

                  This will come as a considerable surprise to textualist judges who cite dictionary definitions.

              2. “but it seems you missed “all terms of sentence” which is hiding in plain sight within the four corners of the text.”

                Turns out there’s a bit of outside text that can work its way into the four corners. The US Constitution. Say, doesn’t it say something about imposing fines? Indeed it does.

                Now, is a fine that keeps you from voting “excessive”? I think there’s a case that it is.

            2. ” I don’t see fines in the text. I see a bunch of other things that do not include restitution.”

              Sigh. But you do see, “all terms of their sentence.” Sarcastro, sometimes sentences include fines and restitution. What you don’t see is “all terms of their sentence including parole or probation, and excluding fines and restitution.”

              1. Listen, TiP. I think there’s a fine chance the Court got it right. But the commenters here, including you, arguing it’s required from the pure text are incorrect.

                If a law lists stuff, but don’t include one thing that is considered intent to exclude that thing. As you know, because DMN explained it to you above.

                1. That argument is dealt with in the Florida Supreme Court advisory opinion on the new law. See page 17.

                  First, under the expressio unius est exclusio alterius canon, “the mention of one thing implies the exclusion of another.” Id. at 781. But this Court has noted that “[g]enerally, it is improper to apply expressio unius to a statute in which the Legislature used the word ‘include,’ ” as that is “a word of expansion, not one of limitation.” Id. Here, the phrase “parole or probation” comes immediately after the word “including.”

          2. ” I’m not sure you understand any of this stuff, Sarcastro.”

            He understands that all you care about is getting your preferred interpretation in the way that benefits you party (in your perception.)

        2. The phrase “all terms of sentence including parole or probation” would lead most natural, non-lawyers of the phrase to think that it meant all of their parole and probation. View are going to think of the laundry list of other items provided by the writer Brett quotes above. Because most people think of and talk about a sentence as how much jail time, how much probation, and, maybe, something like community service and restitution to the victim. Lay people do not, I believe, think of a sentence as also including court costs, etc. If asked, sure the convict has to pay those, I am sure the lay person would say, but they don’t think of it as the sentence.

          The Miami Herald: “Amendment 4 restores the right to vote to convicted felons who have completed all terms of their sentences, including probation and restitution.”

          “Sentences” obviously connoting the prison term, which is why the other parts were spelled out in this news article for the general public.

          Palm Beach Post: “The “Voting Restoration Amendment,” which was approved Tuesday to appear on the ballot as Amendment 4, would automatically restore voting rights to felons who have served their sentences, completed parole or probation and paid restitution.”

          Notice how, for the lay reader, it is “sentences, completed parole or probation and paid restitution” acknowledging that, for the general public, sentence typical refers to jail time, not parole, not probation, and not restitution.

          If you are going to go with the public meaning, I think it is pretty clear the general public thinks of a criminal “sentence” as the prison term, then maybe parole, maybe probation, maybe restitution, but that’s as far as it goes. Yes, in the legal world, the sentence includes everything which is included in the sentencing document, but Brett was arguing public meaning and I think that is a tough hill to climb. Add to that, only listing “sentence including parole or probation” suggests to the common mind that it meant prison term and parole and probation.

          1. He was talking about public meaning of the amendment, not public meaning of the term “sentence”.

            Nice bait & switch though.

            1. Sam,

              Seriously? The amendment uses the term “sentence” so the public meaning of that term, particularly in a context where it is apparently expanded beyond the typical lay understanding to include “parole or probation” is precisely the question at issue.

              But claiming bait & switch in this context rather than engaging with substance is a sure sign you have no substance.

          2. The language is, “complete all terms of their sentence.”

            In this context “terms’ seems to me to refer to periods of time. They have a prison term, and possibly a term of parole or probation.

            Paying a fine is not something you “complete.”

            1. It is if you want to vote!

              1. I don’t want to vote in Florida. I’m sure you’ll have a reason why Florida should be able to consider me a felon. For example, I tend not to vote for Republicans.

            2. Fine, you can interpret it that way. Just recognize that the proponents of the amendment explaining it to the voters before the election didn’t agree with you.

            3. Terms (n) conditions or stipulations limiting what is proposed to be granted or done

              In any event, the Florida Supreme court found that the language included fines and restitution.

              1. Fine, guess we’ll have to wait to see the court ruling that imposing fines that a person can’t be reasonably expected to pay is blatantly unconstitutional.

          3. “If asked, sure the convict has to pay those, I am sure the lay person would say, but they don’t think of it as the sentence.”

            If you asked a lay person whether a convict who has served his time, payed his fines, but still owes outstanding court costs has completed all of the terms of his sentence, you think the lay person would say yes? I’m a lay person, and I would say no, but it’s an interesting question.

            1. I’m open to the proposition that this only includes financial aspects imposed at sentencing, and not general fees that are imposed apart from the choices of the sentencing authority.

              And, as I’ve said, there’s a strong due process argument that the state has to give the felon a clear account of what’s due, in order to properly hold them to it. That would likely be on a case by case basis.

              But the plaintiffs weren’t content with a reasonable accommodation, they were going for the whole enchilada, and their position was NOT reasonable.

              1. ” their position was NOT reasonable.”

                their position is that citizens should have the right to vote.

                1. And that’s a fine position to take if you’re proposing laws or amendments. It’s a crappy position to take if you’re trying to get a court to overturn part of a state constitutional amendment, because it’s not what either the federal or state constitution says.

                  1. The “not all citizens can vote” approach is all fine and good until somebody decides you’re not one of the voting type. This is why I take a stand on opposing people who want to limit the franchise to advance their political goals.

    2. I’m pointing out multiple news accounts which demonstrate what that “all” was understood to mean: ALL, including financial elements of the sentence. That’s how it was sold, that’s how the voters understood it. And once it past, the backers decided that they didn’t really want it enforced as they’d sold it, they wanted it more generous than they’d told the voters it would be.

      Nearly right. No doubt the bit about “upon completion of all terms of sentence including parole or probation” was included by the sponsors to rope in the middle of the road voter.

      But “once it passed, the backers decided that they didn’t really want it enforced as they’d sold it” is a coffee spiller. They obviously knew all along that they didn’t want that little rider to be enforced.

      Sell the motte, apply the bailey. Politics 101.

    3. first of all this isn’t news its opinion but your right they were split on the meaning of the amendment. yet Florida has made no move to tell these felons what they owe or set up a process to pay it back. Essentially they’re sitting on their hands until after the election.

  12. “Yes, Pryor is referring to “the Supreme Judge of the world.” No, not John Roberts. The judicial oath provides: “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 lll under the Constitution and laws of the United States. So help me God.” ”

    Wait . . . a Conspirator overtly bringing the old-timey superstition to reasoned debate on law?

    The End Times for clingers draw nigh.

    A competent adult neither advances nor accepts a superstition-based argument or position in reasoned debate, particularly with respect to a point of law. Only a child does that. A simple fucking child who hasn’t outgrown childhood indoctrination.

  13. “The Amendment could condition the payment of any fines as a prerequisite to the restoration of voting rights.”

    If the fines are part of a sentence, that’s one thing. But the legislation that Florida’s politicians came up with to overrule the popular vote on Amendment 4 also included “fees” and other costs which might NOT be part of a sentence.

    One time I got a letter from a gummint demanding that I pay “delinquent court costs” in a matter that had long been disposed of and that the sentencing order had not assessed any such “court costs” for.

    What’s to stop every prosecutor in Florida from sending every past felon in his or her county a letter every year assessing an exorbitant “fee” for “archival costs” of past case records? Under the legislation in question, non-payment of that fee would preclude voting.

    1. The costs in question are required to be levied in convicted criminals as part of their sentence. Fla. Stat. §§ 939.02 and 939.135.

      1. That aspect, that the statute specifies terms of sentence contained in the four corners of the sentencing document is a strong point. (I am not sure entirely where I stand, having not read anything, just some of the majority analysis is flimsy.) When I read that, it changes things. But, if their fines, etc. were specified in the sentencing document and, if I am not mistaken, the statute says it can’t include charges accrued after sentencing, then how can the State not know instantly how much the convicts owe? Unless they are doing ex post calculations and claiming they were later accrued. I mean, though this is voter suppression, I think the Constitutional question is close if the precise amounts were set out in the sentencing document. But if you play with the amounts later, nah.

        (And I still have a problem with voting rights being distributed based on ability to pay. That would be a fatal error to me, but I see it as a close question on existing precedent.)

        1. I meant not having read everything. All would be forgiven for taking me at my word…but I have read some of the opinions and statute.

        2. See, that’s why I say that on interpretation of the proposal they lose, but they seem to have a viable due process argument.

          And this is NOT a question of voting rights being distributed based on the ability to pay. The voting rights were originally distributed based on citizenship, and forfeited based on criminal conviction. Both unambiguously constitutional actions.

          Restoring them after the sentence is completed is not (federal!) constitutionally required, it isn’t a right. So conditioning it on the payment of the fine isn’t a poll tax.

        3. “then how can the State not know instantly how much the convicts owe?”

          It’s the state government, not the phone company. That’s how. I suppose the questions revolve, not around how much was originally owed, but how much has already been paid.

          1. It obviously depends on how much people in power want an excuse not to count the votes of specific individuals.

            1. The potential of bad faith on the part of the government, (And I admit it’s there.) does not justify what the plaintiffs are asking for, rewriting the proposal to “some” terms of sentencing, instead of “all”.

              There are real issues here revolving around the failure to tell every felon what they owe, attempts to make the proposal apply to debts that weren’t part of the sentencing. I’d have a lot more sympathy with the plaintiffs if they’d stuck with that, instead of going with a dishonest, “The proposal was never meant to apply to financial terms” stance.

              As I said above, my only beef with proposal 4 is that it didn’t go far enough: I think felons should get back ALL their rights on completion of sentence, not just some of them. No second class citizens! Still, I would have voted for it anyway.

              But it should be enforced as written, not as the plaintiffs wish it had been.

          2. One reason could be changes in how much the state charges prisoners for room and board (yes, they do that — I knew a guy who got out of jail after being ACQUITTED, and his going-away present was a bill for $2500 for cell and daily bologna sandwiches). Presumably those room and board charges will be noted as part of the sentence, but the amount left unspecified.

            Keep in mind that the point and purpose of the legislation is to overrule the popular vote to restore former felons’ voting rights, because the Republican legislature believes former felons will lean toward voting Democrat. So they’re going to want to keep things as ambiguous as possible and leave themselves plenty of room to suppress votes and voters.

        4. A lot of fees in probation, and after sentencing don’t come from the government they come from private parties. Since many places like Florida, Texas, Alabama and Georgia have essentially privatized probation and even incarceration. The government knows what they owe but won’t say how much or where to pay the fees.

  14. This is an anti-democratic move by the Florida legislature. Not being an expert on Florida’s laws about legislative relationship with initiatives, I cede to the court that this is procedurally legit. Sometimes you do want to allow elected elites to override the populous.

    So a legal move. But in service of an end that’s unpopular, immoral, and partisan.

    1. Also, the implementation wherein ex-felons are not told what they owe seems to raise blaring fundamental due process concerns.

      1. They are told what the terms of the sentence are when they are sentenced.

        1. Then why did Florida and the Court acknowledge that the ex-felons didn’t know how much they owed. If it was imposed at the time of sentencing? I mean, either there was a sum certain imposed or there wasn’t. Telling people we can make up an amount later that you owe is not telling them the terms of their sentence. You are smarter than to argue that.

        2. Oh, that’s lame as hell, TiP. Switching from a poll tax to an accounting test is not making it look less discriminatory.

          What loans refuse to tell people their balance owed?! Seems pretty fundamental to discharging a debt…if you’re operating in good faith.

          1. “What loans refuse to tell people their balance owed?!”

            I had a mortgage that worked like this. Back in the Great Recession, I applied for, and completed the terms of, a loan modification. The bank kept telling me the modification was “processing”. then they sold the loan to another company, and the second company refused to provide any details of the loan they wanted me to pay. I had no way of knowing if they were making demands on the original loan, or the modified loan that was “processing” when they bought my account. They did offer to settle if I’d just sign over title to the property to them (at the time, it was worth twice the loan value, so I didn’t take them up on the offer.)

    2. Sarcastr0, I don’t think you want elected elites to override the sovereign people, on a constitutional amendment. I also think you don’t want unelected elite judges doing that. If the judges want to consider the text of the amendment, that’s one thing. If the judges admit into that consideration the text of legislation, or executive policy purporting to change the amendment? How is that right?

      1. I disagree. I don’t wand the dial all the way over towards populism. The Founders made a representative democracy and maintained a balance for a reason.

        The judges here don’t seem to be making a policy judgement; this is about the legislature versus the people. As I said the legislature is immoral and partisan and generally suck. Florida should change their populist-elitist mix to curb this crap.

        But this is a symptom of a deeper sickness sin the GOP, not an indictment of the system Florida has.

  15. The majority opinion uses awful reasoning to distinguish Bearden.

    Pryor writes:

    Florida automatically disenfranchises all felons upon conviction, and the challenged laws only lift that punishment for felons who have completed all terms of their sentences. This case would resemble Bearden if Florida left the right to vote intact upon conviction but then revoked the franchise from any felons who could not pay their fines and restitution.

    So, if a state imposed a 20-year sentence but let you out after 10 if you paid a fine, that would be just fine? After all, this is just lifts the punishment for those able to pay. And Pryor argues that merely declining to lift a pre-imposed aspect of punishment (disenfranchisement) due to inability to pay the requested sum is just dandy.

    Logic is not his strong suit. There is no logical difference between a 10-year sentence with fines that, if you don’t pay, converts to a 20-year sentence and a 20-year sentence that you can reduce to 10 by paying fines. It’s the same fucking thing.

    1. They got some history wrong regarding poll taxes in Florida as well. Not an example of great drafting.

      1. Thank goodness Pryor is “only” on the short list and not on the actual Court. This is an embarrassment, even if you ignore the obvious purpose behind the “implementation” of Amendment 4 being to largely thwart the purpose of Amendment 4.

  16. This line was pathetic virtue signaling.

    What’s pathetic, not to mention stupid and presumptuous, is accusing Roberts, or anyone else, of virtue-signaling.

    Making that accusation is purporting to read someones mind – to know, without evidence, what motivated their behavior.

    1. Josh is truly pathetic. I came here for the comments, because the case is important and interesting. Josh is a pox on the legal profession.

      1. It seems I disagree with you about the correctness of this decision. But you definitely got one thing right.

  17. There IS a court of history. It is packed full of liberal university professors who write it. When liberals say “wrong side of history” or “history will judge you” what they mean is that in the future the left is going to make you look like a bigoted idiot, even if that means completely fabricating the actual historical record, because they control that machinery.

    1. Going full on ‘history has a well-know liberal bias.’

      This whenever a conservative cites history, it’s extra true because it’s a declaration against interest!

      Oy.

      1. Consider the culture war’s established course from the perspective of the losers.

        I don’t expect them to like it.

        I just expect them to take it.

    2. “There IS a court of history. It is packed full of liberal university professors who write it.”

      History is written by the victors. This is not a recent development.
      Justice Taney was respected and undoubtedly got some support when he wrote Scot v. Sanderson, but now, not so much. His view didn’t win.

    3. ” what they mean is that in the future the left is going to make you look like a bigoted idiot”

      What they mean is, “you’re being a bigoted idiot”. Those darn leftists aren’t shy about pointing this out when it happens. The fact that acting like a bigoted idiot in the present looks like acting like a bigoted idiot in hindsight is just how the universe works.

  18. I can think of two times when the Supreme Court felt free to disavow what previous SC justices said by invoking the Court of History.

    There was the Sedition Act, upheld by about half the Supreme Court (riding circuit), then discovered to have been overturned in the Court of History in the Sullivan decision. In fact, President Jefferson pardoned the victims and Congress refunded the fines. History had a boost from the other branches of government.

    Likewise with Korematsu. Congress passed, and President Reagan signed, a law to apologize for the relocation/detention and pay some compensation. Once more, the embodied Muse of History bore a remarkable resemblance to the President and Congress.

    Perhaps it’s more fun for judges to pronounce themselves accountable to an abstract “History” than to admit that the other branches of the government rebuked them?

    1. Sometime the current crop of judges has the opportunity to fix the mistakes of earlier judges. The ability to apply hindsight sometimes improves accuracy. Nobody likes to be corrrected by direct contradiction, though.

    2. Sometime the current crop of judges has the opportunity to fix the mistakes of earlier judges. The ability to apply hindsight sometimes improves accuracy. Nobody likes to be corrected by direct contradiction, though.

      1. You can say that again!

  19. “In general, when I hear the phrase “court of history” or “arc of history,” I simply presume that a liberal is trying to shame a conservative into reaching a liberal result.”

    Since you used the phrase “In general” could you provide some examples where it wasn’t the case?

    1. I don’t believe “in general” requires actual concrete counter-examples.

      You can simply imagine, in a good hearted, generous spirited frame of mind that the “court of history” might be deployed by an honest man, who actually believes it exists, is important, and will rule as expected by the plaintiff.

      Although I can’t immediately put my finger on an honest use of “court of history”, I do know several fairly honest liberals who – it seems to me – really do believe in the hobgoblins and unicorns that populate their version of reality.