What Sort of Justice Should You Want on the Other Side?

Noah Feldman explains why liberals should want someone like Amy Coney Barrett on the Supreme Court

It is natural to want a President to appoint justices that share your jurisprudential views. Originalists want Presidents to appoint originalist justices. Living constitutionalists want Presidents to appoint living constitutionalist justices. And so on.

But when the President is from the other party, or is likely to pick a justice with a different jurisprudential philosophy, what sort of justice should we want the President to pick? An excellent one, or so suggests Harvard's Noah Feldman in his recent column, "Amy Coney Barrett Deserves to Be on the Supreme Court."

As Feldman explains, he would prefer a justice that shares his legal views, but given that President Trump is going to appoint a conservative, he explains why liberals should want it to be someone like Judge Amy Coney Barrett.

Writes Feldman:

Some might argue that you should want your probable intellectual opponent on the court to be the weakest possible, to help you win. But the Supreme Court is not and should not be a battlefield of winner-take-all political or ideological division.

It would be naïve to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that the social purpose of the Supreme Court is best served when justices on all sides of the issues make the strongest possible arguments, and do so in a way that facilitates debate and conversation.

As Feldman explains, this is why he believes Barrett will be a good justice, albeit one with whom he will regularly disagree:

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. . . .

it is better for the republic to have a principled, brilliant lawyer on the bench than a weaker candidate. That's Barrett.

I agree with Feldman. When Democrats are selecting judges and justices, I want them to select the smartest and most principled nominees (and I have consistently argued that such nominees should be confirmed). Given the ideological makeup of the courts will be determined by the ideological preferences of nominating presidents, we are all better off when judges, whatever their underlying jurisprudential philosophies, are thoughtful, intelligent, principled, and discerning. Judge Barrett clearly satisfies that standard, and I hope future nominees will as well.

Comments

[Don Nico]

That was Scalia's thought when he said, "Give us Kagan."

[Martinned]

An old one.

But seriously, about this:

Given the ideological makeup of the courts will be determined by the ideological preferences of nominating presidents

I've never understood why this should be so. Why hasn't the Senate long ago started playing hardball with SCOTUDS nominees. An example is the 2014 European Parliament election, when the post-election Parliament told the Council that it would reject any and all nominees for Commission President except Juncker, who was duly nominated by the Council and confirmed by the Parliament.

Why can't the Senate majority leader tell the President who to nominate, particularly if they have a majority of 55 or so? Or at least tell the President who not to nominate (e.g. no one who rejects originalism).

If the answer is simply one of custom, that seems remarkable, given how much hardball is played in Washington otherwise. If that's all it is, surely it must simply be a matter of time before a Senate Majority Leader takes this approach.

[Armchair Lawyer]

It didn't really use to be so contentious. But that's for one big reason.

Congress used to make the law, and the courts used to rule on the interpretation of the law. If the courts were limited within the current law, then having a judge ideologically out of sync didn't make a big difference. And if a judge ruled against current preference, a new law would be passed to fix this.

But Congress stopped making "hard" laws, and instead found it was better (politically) for the Courts to "find" new rights within the law in order to obtain their desired ideological preference. This made picking the "right" judges key.

The cases about gay marriage are a key example about this. The law here didn't change, it's been on the books for a long time.

Normally what would happen is the legislatures would write new laws legalizing gay marriage, and the courts would uphold the new laws. As is right and just within our system. Instead, the legislatures and people mostly passed laws restricting gay marriage and the courts "found" new rights in order for their desired ideological outcome. Which overthrows the normal democratic process.

[Martinned]

I don't think that works, as a matter of timing. The Warren Court did plenty of ideological things, but Supreme Court confirmation hearings didn't become contentious for several more decades.

[Lee Moore]

Er, the Senate voted down no fewer than two of Nixon's SCOTUS nominations within a few months of Warren's retirement, both on ideological grounds.

[bernard11]

True of Haynsworth, but Carswell was voted own in part because he was seen as not a particularly good judge - famously, a mediocrity.

[Brett Bellmore]

The answer, simply put, is that the President is active, the Senate reactive. The President can conduct an extensive search for a nominee he likes, have private talks with them, and so forth. The Senate is then confronted with a nominee, and gets to say either yes or no. And roughly half the Senate will already be inclined to say yes, because they're in ideological agreement with the President. This limits the amount of leverage the Senate has.
You can only do so much when somebody else is picking the starting material.

Armchair is right about why this now matters.

[Sebastian Cremmington]

No, McConnell is in control of all of this. And remember it was W Bush that got Collins to confirm Kavanaugh so a former president was even more important than Trump.

[Brett Bellmore]

Oh, give it a rest.

[Sebastian Cremmington]

Give facts a rest?? Ignore the fact our president is an assclown?? Nope.

[Martinned]

That describes the current state of affairs, but doesn't explain it. There is nothing to stop the Senate Majority Leader from searching for nominees, chatting with potential candidates, etc. And if the Majority Leader is in control of 50+ senators on the issue of which nominee they want to see, he/she doesn't have to care what the minority Senators think.

[Brett Bellmore]

Yes, in theory, the Senate majority could compile a list of candidates that it approves of, present them to the President, and say, "Nominate from this list and you're guaranteed confirmation, nominate somebody not on it, and we'll ignore the nomination." Making the order, "Advice, nomination, consent."

In practice you'd only expect something like this to happen when a weak President is confronted with a large Senate majority from the opposing party.

Trump has never faced a Senate majority that, at least, admitted to being opposed to him, and he preemptively foreclosed any possibility of this by outsourcing the list to the Federalist society, making it politically impossible for McConnell to complain about the list.

[Sebastian Cremmington]

The only reason McConnell supported Trump was because Trump’s list satisfied McConnell.

[Well Regulated Militia]

"Why can’t the Senate majority leader tell the President who to nominate?"

They can, but with 2 parties running things that only happens if the senate is on the party opposite the president. But even that is new thanks to Trump, who taught the GOP to stop being lapdogs for the democrats.

[Sebastian Cremmington]

Trump has almost nothing to do with Supreme Court and judicial appointments—McConnell, McGahn, and Leo deserve almost all the credit. In fact if Trump wasn’t a total imbecile he would have held up the judicial appointments until McConnell funded through wall. So Trump had great leverage over McConnell and he just relinquished it because he is such an assclown. With this appointment Trump could hold it up until McConnell barks like a dog but Trump just lets McConnell do whatever he pleases.

[Martinned]

Yes. There's a reason why Trump's judicial nominees are generally conservative but competent, while his executive branch nominees are typically utter crazies who are completely unsuited for the jobs they've been given.

[jb]

Eh. The real reason that the people in the executive branch are crazy and incompetent is that they have to work for Trump. For the first half of his administration he was getting a fair number of reasonable people to fill slots, but most of them have left and the rest probably look at the way he treats his staff and want nothing to do with it.

[Martinned]

Indeed, this only comes up if the President and the Senate majority are of a different party. (And even then, like I said, probably only if the senate majority is sufficiently large, so that the majority leader can reliably command the majority.)

[Rossami]

re: Why can't the Senate Majority Leader tell the President who to nominate

1. It would be unconstitutional. "Advice and consent" does not mean "usurp the process". That said, it would be a non-judiciable "political question", so...

2. It would lead to a constitutional crisis where the President could simply refuse all the things the Senate wants. Veto every bill. Intentionally use executive branch discretion to do things they don't want. Find excuses to withdraw executive support (such as maybe "discovering" that we can't afford their security details anymore?). And use the bully pulpit to blame the Senate for every bad outcome along the way. Remember that unpopular as the President is, Congress consistently polls lower.

3 and most important. That approach would require congressmen with a spine. As in, not the ones who so gleefully give up all their authority to executive agencies and want all the glory of being a legislator without any of the accountability.

[Larvell Blanks]

Sounds like you wish we had congressmen with enough spine to violate the Constitution.

[Rossami]

No, I wish we had congresscritters with enough spine to uphold the Constitution and actually do their jobs.

But given that we don't, I'm commenting that they don't have the spine to follow Martinned's path either.

[Sebastian Cremmington]

Under Trump the Supreme Court nomination process is very similar to the Fallwell/pool boy 3 way relationship. So Trump is Fallwell Jr, the Senate Republicans are Becki Falwell, and the nominee is the pool boy. So Trump can watch Becky and the pool boy go at it but that’s it.

[Lee Moore]

There wouldn't be anything unconstitutional about the Senate giving the President a list of people to nominate. Indeed it's far from uncommon for individual Senators to recommend people for District or Appeals Court slots.

The President doesn't have to pay any attention if he doesn't want to.

[tkamenick]

It it's unconstitutional for the Senate to propose an appointee they would confirm then it's similarly unconstitutional for a president to propose a budget he would sign. Yet...

[WuzYoungOnceToo]

It would be unconstitutional. “Advice and consent” does not mean “usurp the process”.

"We would advise that you select a nominee from this list."

Where is the constitutional violation there?

[Sebastian Cremmington]

You can nominate that person...but we will not confirm. So it is the same dynamic with Becki and Jerry Fallwell...Jerry can pick a pool boy he likes...but Becki doesn’t have to “perform” for Jerry. 😉

[Lee Moore]

If you're on the left, and you have to put up with a Republican appointee, you want a political trimmer whose ear is tuned to DC cocktail party opinion - a Kennedy or a Roberts or a Kavanaugh.

Next best is an honest one who claims they're going to call balls and strikes fairly according to the text, and does so to the best of their ability. Cos then you might pinch a vote if the text is on your side. A Thomas, a Gorsuch or a Barrett.

You absolutely don't want a Justice who's a reliable vote for conservative positions and interests, ie a mirror of a liberal Justice, an Alito.

If you're on the right, and you have to have a Democrat appointee, then as Martinned says, you want an old one or a sick one. Or best of all, an old sick one. Next best is a fanatical all weather biker.

[QuantumBoxCat]

Feldman writes, "Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics."

Huh. Here I thought the institutional purpose was to resolve legal disputes, which the Court actually did in all those boring common law, equity, and admiralty cases that are no longer read. By extension, the resolution of these cases certainly implicates issues within the political branches. Not sure why the institution refuses to hear cases involving a "political question" if its purpose was to find a resolution to political conflicts.

[Well Regulated Militia]

Roe changed all that. Lefty knew it which is why Bork happened, and its been hell ever since.

[phoqueue]

SCOTUS still has plenty of boring cases. Most of them are.

[Krayt]

How soon we forget the fury over whether a car dealership repair intake salesman counts as a repair mechanic, parts window chick, care salesperson, or none of the above!

[Krayt]

Car salesperson. Ironically, they could be fairly described as a care salesperson.

[Lee Moore]

From Feldman, a neat summary of conservative and liberal judicial philosophies, as exemplified by the two stars - Amy Barrett and Jenny Martinez :

When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.

For the conservative, working out what the statute means is the end of the quest. For the liberal, it's the beginning.

[jb]

Didn't you just write that Alito votes for whatever conservative political orthodoxy says? Or do you just mean "no true conservative"?

[Lee Moore]

I am distinguishing between a conservative-committed-to-conservative-ends and an adherent to conservative judicial philosophy. Not the same thing.

Alito is the former. As to judicial philosophy, he's a liberal - ie he always manages to land on the answer he likes.

[jb]

I think your problem is that you're using the same word to try to apply to two different concepts that have basically nothing to do with each other.

[Lee Moore]

Not surprisingly, I beg to diifer.

"conservative" connotes the concept of mass as applied to the non corporeal world, resistance to movement. By obvious extension, it has also appropriated the sense of traditional, regular, cautious. The opposite of novel, radical, audacious.

When applied to political ideas and programs, it has connoted resistance to change, support for the estabished order and tradition. But as a result of political labelling it has as swept up ideas and policies that are adjacent to this territory - such as mild reaction (not surprising if resistors to change, who fail to stop a change, then aspire to change back, at least for a while.)

So while conservatives in different countries often disagree as to policy, they're easy enough to locate. They are the ones standing athwart history crying "Stop!", or even "Go back."

This same adjective "conservative" can also be applied to judicial philosophy, in the sense of folk who wish to apply the traditional approach, or go back to it, if it has been partially abandoned. It encompasses the idea of a limited role for judges, close adherence to text, precedent etc. Because that's the traditional role of judges.

Whether this sort of nerdy, self-denying, bookish judging happens case by case to favor the sort of political programs currently preferred by politicians describing themselves as conservatives is irrelevant. The adjective describes the approach - conservative, traditional as opposed to radical.

The adjective works just as well in other contexts. A conservative game plan on the football field describes a traditional cautious plan of a type you have typically used before. As opposed to a radically different from usual, do the unexpected game plan.

A conservative election strategy - as deployed by Hillary - involves playing safe, not exposing yourself to risk with wild and excitable new policies, and doing the stuff you always do each election. You do not have to be a political conservative to deploy a conservative election strategy.

[jb]

"This same adjective “conservative” can also be applied to judicial philosophy, in the sense of folk who wish to apply the traditional approach, or go back to it, if it has been partially abandoned. It encompasses the idea of a limited role for judges, close adherence to text, precedent etc. Because that’s the traditional role of judges."

The problem is this is not how you're using the word in the realm of judicial philosophy, because you start with the assumption that all politically liberal justices are necessarily judicially liberal as well. Kagan in particular is a politically liberal jurist who generally approaches the law through a textualist lens, and Scalia acknowledged Ginsberg as a "really good textualist". The fact that they came to different conclusions from you through that process doesn't mean that they're more "liberal" in terms of process than say, Roberts, who really does seem outcome-oriented in his jurisprudence.

[Lee Moore]

you start with the assumption that all politically liberal justices are necessarily judicially liberal as well

Not an assumption, a finding.

I quite agree though that, in theory, a liberal Justice (ie politically liberal) could have a conservative judicial philosophy, ie read the damn words and if you don't like the answer, tough noogies. Such a creature is not a unicorn, it really might exist - though it would never get nominated to SCOTUS. It's just that we've never seen one.

Kagan is not one. She's just a clever girl, who can use textual analysis when it gets her to the answer she wants. As Scalia said - a very good textualist - meaning she knows all the moves, not that it is her judicial philosophy. And she can abuse the text with real skill when the text needs to be tortured. She has a deft touch with begged questions, and she's excellent at setting up a frame to allow her to coast downhill with a textual analysis that depends on that frame. She's a brilliant advocate, posing as a judge.

But she's liberal in both senses - a political liberal and judicially liberal. Being judicially liberal, she lands where she pleases, and is happy to do so using textual technique, when it lands her where she wants to be. Like Picasso, and unlike most other modernists, she can actually draw realistically, when she wants to.

But the tell - as discussed below - is that she never votes against interest.

[jb]

Kagan votes against "interest" all the time. She's the liberal judge that votes most often with the conservative bloc, and even writes the decisions in those cases on a regular basis. Only in your bizzaro world where the only votes that count are on 5-4, socially charged issues does Kagan show up as some sort of one-dimensional liberal out to torture the law to get whatever outcome she has predetermined.

P.S. It's detracts from your credibility to condescendingly refer to a Supreme Court Justice as a "clever girl".
P.P.S. It was Ginsburg that Scalia called a "really good textualist", and it wasn't a backhanded compliment regarding her ability to get to the outcome she wanted either. Here's the full transcript, which makes it clear that he gave his colleagues a lot more credit than you seem willing to:

" Marvin Kalb: Are you two ever going to agree on big issues and still maintain the friendship?

Justice Scalia: We agree on a whole lot of stuff. Ruth is really bad only on the knee-jerk stuff. (Big laughs from the audience.) She is a really good textualist. In those things, where the text is what she’s guided by, she’s terrific. She’s obviously very smart. Most cases, I think, we’re together. I think we are together in a lot of criminal defense cases, upholding the rights of the criminal defendant. Ruth and I are quite frequently in dissent from the court’s decision. So we agree on a whole lot. You have it wrong."

[Lee Moore]

Only in your bizzaro world where the only votes that count are on 5-4, socially charged issues does Kagan show up as some sort of one-dimensional liberal out to torture the law to get whatever outcome she has predetermined.

In a 7-2 case it doesn't matter how she votes.

If she can persuade Roberts to tone down a judgement that she's losing anyway, so the precedent set is narrower, by giving him her vote so he gets what he wants - the appearance of collegiality, that's a win.

It's like Senator Sinema, who does a pretty good job of pretending to be a moderate, by defecting on votes the Dems are losing anyway.

[Sarcastr0]

I'll give you Sotomayor.

But RBG, Breyer, and Kagan are not like Alito. Read where they disagree with Sotomayor; it's not hard to spot the difference.

[Cal Cetín]

"Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that..."

Wait, you haven't established your premise yet.

[Sometimes Bad Is Bad]

In which the word premise is used inconclusively. Try again.

[Cal Cetín]

The institutional purpose of politics is to find a resolution of Supreme Court conflicts through argument and vote-casting.

[QuantumBoxCat]

I think the better analogy would be: The institutional purpose of Congress is to find a resolution of legal conflicts through floor speeches, press releases, logrolling, strategic maneuvers, and vote-casting.

[Rev. O.T. Medal]

"Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics."

The above quotation describes an ideal, not reality. I believe most justices -- even on the Rehnquist and Roberts Courts -- have sought to meet the ideal most of the time. But with a 5-4 conservative majority, the ideal repeatedly has been disregarded. To cite but two examples Bush v Gore and Shelby County were exercises in pure power politics. Moreover, when advocates and/or liberals on the Court have deployed "reason, interpretation and argument" to convince a conservative justice to vote with the liberals in a controversioal case, the right-wing commentariat has screamed betrayal!" See e.g. VC commentary regarding CJ Roberts's ACA votes.

A Court with a 6-3 conservative majority is one on which the conservatives have no need to rely on "reason, interpretation and argument" to convince the liberal justices (or anyone else) to support their conclusions. The conservatives will be able to lose one justice's vote on any case, and still will be able to prevail without altering even a hard right majority opinion by a single jot or tittle. In such circumstances, "vote-casting" and "pure power politics" will be indistinguishable.

[Lee Moore]

I'm interested how this postulated 6-3 conservative majority works, in the context of Roberts as Chief Justice wanting to act as a brake on too much conservatism, by hogging all the important judgements for himself.

So, let us postulate a case in which, say, a state has legislated some abortion restriction and all six conservatives think this particular restriction is OK. But five of them (excluding Roberts) also think that the plaintiff has no standing, concluding that only affected women may sue, not organisations or abortion docs or whoever. (Note - it's just an illustration, dont get bogged down in whether the legalities are plausible.) And suppose the big question on the conservative-liberal divide is the standing question, because if the standing conclusion is set as precedent, all sorts of liberal causes will struggle to make headway against the new standing precedent.

But Roberts wants to avoid making waves, so he just wants to rule on the particular abortion point and leave the standing question hanging. So he grabs the opinion, and writes the abortion answer he wants, and just says "so no need to answer the standing question because you lose anyway."

Can the other five say "sorry Johnny, although we happen to agree with you on the abortion question, we're going to write our own opinion joined by the five of us, decideing the question on standing. That's where we want to set the precedent. And we'll just add "and so no need to discuss the aboton question."

Who wins ? Johnny or the gang ?

Again - don't bother with whether there are rules that you have to decide standing first before you get to the merits, or the other way round. It's just a hypo. Does Johnny get to write the opinion just because he's deciding the case the same way as the other five ? Or can the other five say - we're not joining your opinion, we're writing our own ?

[Sarcastr0]

The gang. If you command 5 votes for your draft, and the other guy doesn't, that's all she wrote.

Initial assignments are just that.

[Lee Moore]

Grazie

[Brett Bellmore]

They can always, and frequently do, not join the Chief Justice's opinion.

[LawTalkingGuy]

Why would I want someone who would accept the nomination under these dubious circumstances? First of all, she goes back on her own view when it suits her ambition. But more importantly she’s knowingly aiding people who go back on their word and are straight up liars who never believed Americans deserved a voice despite passionately saying so. She’s proving to everyone that shameless and almost pathological lying works. Mitch, Cotton, Cruz, Graham, lied to everyone, and she’s enabling it. For someone who speaks of morals a lot due to her faith, I don’t think she’s being very moral right now by knowingly giving liars what they want. I don’t remember being taught in Catholic school that lying was okay. So who cares about her legal abilities? Her character appears to be awful.

[Noscitur a sociis]

First of all, she goes back on her own view when it suits her ambition.

What are you referring to here?

[LawTalkingGuy]

https://amp.cnn.com/cnn/videos/politics/2020/09/24/amy-coney-barrett-balance-of-power-scotus-chuck-schumer-ebof-vpx.cnn

There seems to be some debate about what she means given her somewhat opaque speaking here, but I got the sense that she thought the replacement of Scalia with a potential moderate-liberal justified the Senate’s act in blocking Garland during the election year, but now that she’s the one dramatically shifting the court literally during an election she doesn’t have those same concerns now.

[Noscitur a sociis]

I got the sense that she thought the replacement of Scalia with a potential moderate-liberal justified the Senate’s act in blocking Garland during the election year

Assuming that you actually believe that and aren't trying to deceive for partisan purposes, you believe that because you relied on other such dishonest brokers instead of looking at what she actually said.

https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-2016-interview-confirming-justices-election-year/

[LawTalkingGuy]

I watched the video. And I can also use my logical thinking skills to deduce that anyone who would accept the nomination due to the machinations of a known liar like McConnell isn’t exactly going to be honest now about what she believed back then.

[Noscitur a sociis]

I'm not following. I'm not talking about what she's saying now, I'm talking about what she said in 2016, which was:

I think, in sum, the president has the power to nominate, and the Senate has the power to act or not, and I don't think either one of them can claim that there's a rule governing one way or the other.

[WuzYoungOnceToo]

And I can also use my logical thinking skills

Then I'm at a loss to understand why you're not doing so.

[Sam Gompers]

"Why would I want someone who would accept the nomination under these dubious circumstances?"

That talking point was released early in the dawn and it's already being spewed out by the low-information ideologues.

Wow.

[Sarcastr0]

Sam heard two people say the same thing and are pretty sure it's a sign of coordination.

[Sam Gompers]

LTG got it from here:

https://media.thedonald.win/post/3DPAP6Mj.jpeg

[Sarcastr0]

LOL sure he did.

[Sam Gompers]

You should look at my evidence before you comment.

HTH

[Sarcastr0]

I clicked on it. It's some blue checked twitter posts. You're making connections like someone with a corkboard and string.

[Sam Gompers]

And what are those blue checked twitter posts saying?

The exact same message as each other and as LTG.

Weird.

[Sarcastr0]

So two people made the same argument, one after the other. This is proof it's a coordinated talking point.

This is not how proof works.

[Sam Gompers]

Its proof that some stupid talking spreads quickly amongst the Leftwaffe.

[Absaroka]

Gotta go with Sarcastr0 here. That talking point wasn't listed in the memo, thus proving there isn't any coordinated response.

(seriously, though, of course there is a coordinated response. The Dems aren't incompetent, after all. Coordinated responses is what parties do)

[Sarcastr0]

Indeed - but commenters on the Internet don't usually get copies of those memos.

[Sam Gompers]

He got it from the mindmasters and braintenders on the Left who disseminate opinions to the morons and doofus's who are their brainless footsoldiers.

[Absaroka]

As opposed to the mindmasters and braintenders on the Right who disseminate opinions to the morons and doofus’s who are their brainless footsoldiers?

Both sides have smart people, and of course both sides have their doofii.

[Lee Moore]

doofi, surely

[jb]

...says the guys who's principal contribution to the discussion is to repost talking points (or in many cases literal links) from Breitbart?

[Krychek_2]

In reading these comments, one consistent theme emerges: Judges who agree with me are properly interpreting the law; judges who don't are stupid, evil, lazy, incompetent, and only care about the DC cocktail circuit.

Bullshit. I think Roe v. Wade's bottom line was rightly decided (albeit for the wrong reason; I disagree almost entirely with the rationale), but I would be the first to acknowledge that the other side has a point and the Constitution is frequently wide open to interpretation. And if Amy Coney Barrett is confirmed, I will probably disagree with most of her opinions, but I will acknowledge that they will be the product of a good faith belief on her part that that's what the Constitution means.

The Constitution is not math or science in which there is only one right answer. It contains plenty of vague generalities and it's up to judges to fill in the blanks. And that they don't always agree with someone else's views on how those blanks should be filled in doesn't mean they're not acting in good faith.

If I were a senator, I would vote against confirmation because of Merrick Garland and also because I disagree with her ideology. But not because I think she's a bad person or is intellectually dishonest. Neither is John Roberts, and neither was Anthony Kennedy and neither was David Souter.

[LawTalkingGuy]

I think she might be partly a bad person by accepting the nomination under these circumstances. She’s basically endorsing the idea that lying to Americans about them deserving a voice is okay.

[Don Nico]

You sure are holier than thou.

[Cal Cetín]

"I think Roe v. Wade’s bottom line was rightly decided (albeit for the wrong reason; I disagree almost entirely with the rationale), but I would be the first to acknowledge that the other side has a point and the Constitution is frequently wide open to interpretation....

"The Constitution is not math or science in which there is only one right answer. It contains plenty of vague generalities and it’s up to judges to fill in the blanks."

If the constitution is that widely open to interpretation and filled with vague generalities, why not let the people or their elected representatives fill in the gaps? Seriously, if the Constitution isn't an actual legal document but a bunch of vague political principles, then why are judges better qualified to resolve interpretive disputes than elected politicians?

As (soon to be cancelled) Chief Justice Marshal instructed us, the reason to have judicial review is that the Constitution is a legal document, and judges have to judge legal documents. But if it's a political document, elected officials, or even the people themselves, should do the interpreting.

[Krychek_2]

Because when there is a dispute about what the Constitution means, someone has to resolve the dispute. The people and their representatives write the laws; the judiciary interprets them. If Congress passed a resolution declaring what the Constitution means it would violate separation of powers.

[Cal Cetín]

How do we know what separation of powers means? The Constitution is frequently wide open to interpretation. It's not like math or science with one right answer.

So who's to say that separation of powers is even a constitutional requirement? Is the phrase "separation of powers" in the Constitution?

I mean, you can *infer* such principles if you go into it with the idea that you're finding answers in a comprehensible legal document. But a vague document which is so widely open to interpretation...how can we claim that something called "separation of powers" is fundamental to the Constitution?

[Krychek_2]

OK, so suppose there's a case before the court on whether separation of powers is mandated by the Constitution. I know what the arguments are in favor; what would be your argument against?

And even if you have a spectacular argument that separation of powers shouldn't be a thing, we are still left with the practical reality that when there is a dispute about what the Constitution means, somebody has to resolve it. Suppose the executive and the legislative branches disagree over the meaning of the Constitution; how are you proposing that it be resolved? Since the president and Congress are all the people's representatives, you can't just say the people's representatives.

[Lee Moore]

OK, so suppose there’s a case before the court on whether separation of powers is mandated by the Constitution. I know what the arguments are in favor; what would be your argument against?

The argument against is that there's no mention of it in the Constitution.

What is mentioned in the Constitution is various powers for Congress in Article I, various powers for the President in Article II and various powers for the Courts in Article III.

We can say, as historians, that this structure of the Constitution, dividing government into three distinct slices and providing different powers for each, was inspired by the philosophical idea of the separation of powers, and the practical though far from perfect manifestation of such separation in the British system (and in the individual States.) But to say that the structure of the Constitution is inspired by the idea of the separation of powers is not at all te same as to say that theefore there is an overarching unspoken separation-of-powers metarule draped over the actual text of the Constitution, and trumping the text when necessary.

Nor do you have to take my word for it, because the text of the Constitution itself, despite its Article by Article slicing of the federal power, itself directy contradicts the pure Montesquieuian separation of Legislative, Executive and Judicial Power.

The President's veto power over legislation, brings the Executive into the legislative power. The Senate's power to approve or disapprove executive appointments, brings the Legislature into the executive power. The power of impeachment and trial brings the Legislature into the judicial power.

If there were an actual Separation of Powers Ace of Trumps o'erhanging the text, all these things would have to go.

[Krychek_2]

There are a good many things that aren't mentioned in the Constitution, like the Air Force, the bar on government censorship of the Internet, and wiretaps, but that doesn't mean there are no constitutional principles that apply. And as for overlap such as the president vetoing legislation, as with the electoral college, that probably would be unconstitutional had it not been written into the text of the constitution itself. When something is written into the text itself, it's a pretty hard sell that's it's unconstitutional, even if it would be otherwise.

But back to my main point: Even if you disagree with everything I just said, it's debatable. It's not a situation in which there is clearly and unambiguously only one right answer. Even if, as I do, you find one argument more persuasive than the other.

So if some future supreme court were to throw out separation of powers, I would disagree with them. I would not say that they acted out of stupidity or malignity. I would say they were honestly mistaken.

[Libertymike]

How can you ascribe honesty and competence to such a future supreme court without the benefit of reading its opinion, considering its rationale, or knowing anything about the character of the Brethern then sitting?

[Krychek_2]

My initial inclination is to give people the benefit of the doubt. Though it is a rebuttable presumption.

[Armchair Lawyer]

Krychek,

"Because when there is a dispute about what the Constitution means, someone has to resolve the dispute."

Sometimes this really pushes too far unfortunately, and becomes less about "what the constitution means" and more about "making policy, and back rationalizing the Constitution to get the desired result" Let's bring up the gay marriage question again.

Gay marriage was illegal in several states (and legal in several other states). Many times, this was passed via the standard legislative procedure, as laws should be done. And this should've been done by the United States Congress, with a new law which legalized gay marriage, which I would've full heartedly supported. This would have been entirely within Congress rights and powers. But that's not what happened...

Instead, somehow the due process clause was extended to grant this right, and strike down state laws and state constitutional amendments across the nation. Not old ones either. California passed a state amendment to their Constitution relatively recently on this question. And just for the record, this clause was "nor shall any State deprive any person of life, liberty, or property, without due process of law."

Now, that amendment has been on the books for over 150 years. And I think we can safely assume that the people who wrote it did not mean for it to mean that a man and a man could legally marry. And we can safely assume that judges for the next 125 years had zero intention of taking this old clause and suddenly re-interpreting it to realize that a woman and a woman could legally marry. But suddenly 5 SCOTUS judges realize "Oh, this is what the Constitution means!"...

No, this was policy making by the SCOTUS. The judges weren't interpreting the law, they were making new law to fit their ideological preferences.

The problem with this is, even if you agree with the result, you're getting there through the wrong means. And those means, once opened up, can be used for other purposes. To use a saying, "The road to hell is paved with good intentions".

Once Congress realized "we don't have to make difficult votes that we would have to answer to our voters about, we can appoint judges and THEY can make the choices we would want to"...it changed the power balance.

Once the other side in Congress realized what was going on, well, then it became clear. It wasn't enough to simply oppose the actions in Congress that were disagreed with. You also had to oppose the judges being appointed. Because if you didn't, no matter what you did in Congress, your views would be overridden by judges "re-interpreting" the law to obtain the desired outcome.

[Cal Cetín]

"Gay marriage was illegal in several states (and legal in several other states). Many times, this was passed via the standard legislative procedure, as laws should be done. And this should’ve been done by the United States Congress, with a new law which legalized gay marriage, which I would’ve full heartedly supported. This would have been entirely within Congress rights and powers."

I think I'm going to disagree there. I believe it would be just as much an abuse of power for Congress to force this on the states as for the federal courts to do so.

[Krayt]

I dunno. Doesn't Congress force states to recognize each otber's driver's licenses? This is exactly the kind of thing the interstate commerce clause was designed for.

Forcing them to recognize each other's marriage licenses is the same thing. This is the exact opposite of DOMA.

And yes I realize it's distinct from forcing all states to directly allow it.

[Brett Bellmore]

That's not the commerce clause, it's the full faith and credit clause.

[Josh R]

I'm not following how Congress could require states to recognize marriages between two people of the same sex.

[Lee Moore]

Marriage is a contract, people cross State borders thereby affecting the supply of spouses even within each individual State.

Fundamental to the Planet Eating Commerce Clause Doctrine.

[Krayt]

Freedom to enter into contracts. If only this wasn't used in situational ethics by the left.

[Sarcastr0]

Marriage is not legally a contract.

[Lee Moore]

If it needed to be a contract for gay marriage to win, it would be a contract, I assure you.

[Sarcastr0]

Oh, sure just bad faith all around *eyeroll*.

There are plenty of things liberals want that liberal Justices don't find in the Constitution. What's your explanation for that?

[Lee Moore]

What’s your explanation for that?

They're currently in the minority.

When they were in the majority, they found all sorts of stuff.

As indeed they managed to keep finding stuff in the 9th Circuit, under Reinhardt's theory that SCOTUS just wouldn't be able to keep up with the 9th's prodigious outut.

I'm gently reminded of those Italian communists and who used to do pretty well in elections in the 70s and 80s. Shirley, went the cry, this is proof that you're lying when you say that communism always results in giant piles of skulls. To which the reply was, and remains - communists in power and communists not in power are different animals.

[Sarcastr0]

And they also didn't find all sorts of stuff when in the majority. Your theory of untrammeled discretion doesn't hold up.

Call me when the 9th finds a right to UBI, or any other liberal pet program.

[Rossami]

Sorry, Sarcastr0, but I really have to disagree with you on this one. Marriage most definitely is a contract in every legal sense. That, in fact, has historically been its primary purpose. The religious overtones to marriage were layered on top of its contractual purpose, not the other way around.

[Sarcastr0]

Specific performance would be quite the remedy in a breached marriage.

[Lee Moore]

I think it was only in the 1990s that the English House of Lords reversed long standing precedent and ruled that it was legally possible for a man to rape his wife.

[Krychek_2]

Armchair Lawyer, it's been a long time since I read Obergefell, but I thought it was decided on equal protection grounds rather than due process. Which is how I would have decided it had I been on the court. Marriage is a fundamental right, denying access to it therefore gets heightened scrutiny, and none of the rationales offered against gay marriage stands up to any real scrutiny.

But I think there's a more basic issue at stake. One of the privileges and immunities of citizenship, or so it seems to me, is that the state cannot treat you badly just because a majority of its citizens don't like you. If the reason they don't like you is that you're doing something socially harmful, like committing murder, that's one thing. But if the reason they dislike you is unrelated to any legitimate state interest -- you're just not popular with your neighbors -- then I think your privileges and immunities kick in, and people should not be the victims of state-enforced community prejudice. Especially over something as significant to individual happiness as the right to decide for yourself with whom you wish to spend the rest of your life.

[Lee Moore]

Marriage is a fundamental right, denying access to it therefore gets heightened scrutiny, and none of the rationales offered against gay marriage stands up to any real scrutiny.

So, if a State simply declines to have a law on marriage, nor any law offering any privileges to married people (ie people choosing to call themselves married, accordng to whatever rites seem appropriate to them), this "marriage is a fundamental right" thing would require the State to pass laws establishing State recognised marriages ?

[Krychek_2]

Off the cuff, and without having actually thought it through, my visceral first thought is that a state probably could ban marriage altogether, at which point it's a service the state is simply no longer offering to anyone. But once offered, it has to be offered even handedly. A state could probably abolish its court system altogether too and tell people to just work out their differences themselves, but if it has a court system, it cannot have different rules for favored groups and individuals.

Let me know if you hear of any state actually proposing to do that.

[Sam Gompers]

"ban marriage"?

You mean not recognize, license, and confer special benefits upon it right?

If it has to be offered evenhandedly, why is it only offered to pairs of unrelated people?

[Krychek_2]

I typed too quickly; "ban" is not the word I intended to use. Sam is correct that I meant non-recognition. As a matter of private contract, people would still be free to make whatever arrangements they like.

And if there is a lawsuit about the rights of people wanting to marry who are (a) not pairs; (b) not related; or (c) both, the question will be whether the state can articulate a sufficiently compelling reason for keeping it to pairs of unmarried people. Maybe it can and maybe it can't. I'd like to hear the arguments before I commit myself.

[Sam Gompers]

https://www.unmarried.org/

There's a whole host of arguments as to why government marriage harms others.

Further, several justices stated in their opinions (the CA one and the SCOTUS one) that government marriages are "enobling" and "confer dignity".

If the people in government are in the business of conferring dignity, how can they withhold that dignity from anyone?

[Krychek_2]

Sam, we should have a contest to see who can find the greatest number of logical fallacies in any randomly selected dozen of your postings.

[Sam Gompers]

You think the unmarried.org people are logical fallacies?

That's pretty weird.

And there is no fallacy in my argument about the people in government conferring dignity via government marriage licenses.

[Krychek_2]

No, the logical fallacy is in the statement that "if the people in government are in the business of conferring dignity, how can they withhold that dignity from anyone?"

Now, I candidly think you're smart enough to know which logical fallacy you just committed and you're doing it intentionally just to yank people's chains. But just in case I'm wrong, your conclusion does not follow from that premise. The conclusion assumes that "anyone" is similarly situated to everybody else.

There are lots of reasons why certain individuals can't get married. They may be in a coma. They may be insane. They may be four years old. Yet, under your simplistic analysis, how can we withhold the dignity of marriage from such people? Sorry, that's just stupid.

[Lee Moore]

I wasn't suggesting a "ban", merely the absence of any State law on the subject. It would be in the same legal position as pat-a-cake; no State establishment thereof, no State prohibition thereof, nor any State definition of the rules. Mere silence.

But once offered, it has to be offered even handedly

That has a mild aroma of equal protection, though, and I thought you were on a different horse.

[rsteinmetz]

I have long advocated that the obvious libertarian position is that government should stay out of peoples interpersonal relations as much as possible. If 2,4 or 10 adults want to say they are married to each other fine. If someone wants to "marry" any person(s) whether by a Christian, Jewish, Islamic or Pastafarian ceremony that's up to them but there is no government sanction of any marriage. If the parties want to create a contract governing their relationship, that's fine. If they want to designate a third party to mediate or arbitrate any issues in the marriage that's fine. The only issue would be the welfare of any children of the relationship but courts already deal with that regularly since nearly half of all children born in the US are not born in a marriage.

[Josh R]

Obergefell was decided on both due process and equal protection grounds. The rationale (fundamental rights) was detailed in the due process argument with the Court later noting that equal protection applies for the same reason. It was left unsaid whether either a due process or equal protection right to enter into civil marriage would be violated if the state chose not recognize any marriages.

[iowantwo]

Marriage is a fundamental right, denying access to it therefore gets heightened scrutiny, and none of the rationales offered against gay marriage stands up to any real scrutiny.

But we aren't talking about marriage. We are talking about govt perks awarded to those who marry. The whole "gay marriage problem" was brought to the court by a woman, when she realized the govt was going to swoop in and gobble up a good portion of her roommates assets with estate taxes, without spousal protection gained through marriage
The only reason marriage is a govt thing, is because it was a social structure the govt wanted to encourage through favorable tax laws
This has nothing to do with marriage, its all taxes. Saying vows in front of friends, family, and other witnesses is easy. Trying shoulder your way into the govt feeding trough is different
Govt perks were rewarded to encourge favorable behavior.
Why the perks, the tax advantages?
Estate tax protection? Only common sense. The wife never had the opportunity to build her own estate because she ran the home and reared the children. So the govt created the Estate tax spousal protection.
Same with access to spouse SS benefits. Wife never had a as much time to contribute to her own SS.
That might be outdated today, but that does not come under the jurisdiction of SCOTUS

[iowantwo]

So the question is, are homosexual unions a social structructure that should be incentivized through govt perks using things like the tax code?

[Absaroka]

I think a more straightforward statement of the issue is 'should the government incentivize gay marriage differently than straight marriage?'.

If you are objecting to some kind of spousal benefit for all marriages, that's a rather different issue.

[Brett Bellmore]

"Gay marriage was illegal in several states (and legal in several other states). Many times, this was passed via the standard legislative procedure, as laws should be done."

I seem to recall that some of the states that legalized gay marriage legislatively did so only due to court rulings. You might be able to find one, perhaps two, states that legalized it voluntarily, but only after the writing was on the wall that the courts were going to do it if they didn't.

Basically what happened here is that a fad overtook the judiciary, and they suddenly realized that, screw the public, they could impose this on the nation no matter what anybody else thought about it.

I think the substance of what they imposed was moderately bad, but the precedent of imposing it was horrific.

[Dan Schiavetta]

Loving v Virginia

[Sam Gompers]

Gay marriage wasn't illegal. It was simply not recognized.

Two gays always could've proclaimed themselves gay married, no one would've came and arrested them.

[Brett Bellmore]

Gay marriage wasn't simply not recognized, it was an oxymoron. The Court didn't extend marriage to "gays", they'd had the right to marry all along.

The Court redefined marriage.

[Sarcastr0]

The Court held your definition was discriminatory and wrong.
You're still clinging to it as the One True Definition, but that says more about you nowadays.

State recognition of your relationship is not some small thing. As can be seen by how much the right fought this loosing battle.

[Sam Gompers]

How can the people in government only recognize romantic relationships of pairs and not also recognize other romantic/aromantic configurations?

[Krychek_2]

Sam, for the same reason it's error to assume that because taking a pill makes me better, that then taking the entire bottle will make me really better.

[Sarcastr0]

Polygamy is more complicated practically, but yeah - I don't think thrupples and morepulls should be denied state legitimacy.

[Sam Gompers]

Krychek,

That makes no sense.

Gaslightro,

Don't forget about the rest of the unmarried.

[Krychek_2]

It makes perfect sense. Your argument here is that more is better. And sometimes that's true, and sometimes it's not.

[grb]

Brett Bellmore : Gay marriage wasn’t simply not recognized, it was an oxymoron.

Oh really? There have been same-sex couples living together in the exact manner of a marriage since time immemorial. Friends and family celebrated their relationship exactly as they do marriages. Frequently these couples observed their union with a ritual, often presided over by a religious officiant. What you find an impossible concept has been occurring everywhere all through your entire life. Perhaps the conceptual difficulty is all in your mind?

[Sam Gompers]

Right, their life partners. But they had to appropriate natural marriage because their feelings where hurt, so they have literally appropriate all of it. Our customs, our terms, our rituals, everything.

What's so funny is how angry "cultural appropriation" makes the Left, while they've been in the business of doing it for over a decade.

[Krychek_2]

Except that gays are part of the same culture and aren't appropriating anything. Sorry to be the one to have to tell you that you have to share the world with people you don't like.

[Sam Gompers]

They are obviously not part of heterosexual culture.

Obviously.

Just like some Normal like isn't part of the gay culture.

[Sarcastr0]

Sam - the whole point is that marriage is also not a part of heterosexual culture, but rather our culture generally.

[Sam Gompers]

It's obviously part of heterosexual culture.

[grb]

Sam Gompers : Our customs, our terms, our rituals, everything.

Even if we were to grant that as true, what's wrong w/ sharing?

[Krychek_2]

"But they had to appropriate natural marriage because their feelings where hurt, so they have literally appropriate all of it. Our customs, our terms, our rituals, everything."

I didn't realize you had a patent on marriage, customs and rituals. Just because you think you own something doesn't mean you do.

[jb]

Only because of Lawrence v. Texas.

[grb]

Brett : Basically what happened here is that a fad overtook the judiciary, and they suddenly realized that, screw the public, they could impose this on the nation no matter what anybody else thought about it.

Bass-ack·wards once again. A quick google search found this from the Pew Research Center : "Based on polling in 2019, a majority of Americans (61%) support same-sex marriage, while 31% oppose it." SCOTUS didn't screw over the public or get beyond mass opinion. They suddenly realized most of America had left them behind and decided to play catch-up.

As for gay rights, I remember a conversation with a conservative friend over a quarter century ago. He admitted there was no real reason to treat gays differently but still had a vague sense there should be some legal distinctions to show the public thought them icky. For reasoning that's - whatever - but what happens when the public no longer believes even that? Clarity comes pretty quickly.

[Lee Moore]

Bass-ack·wards once again. A quick google search found this from the Pew Research Center : “Based on polling in 2019, a majority of Americans (61%) support same-sex marriage, while 31% oppose it.”

How did SCOTUS know in 2015 what was going to be in the 2019 Pew poll ? Isn't that a weeny bit bassackwards ?

And in any event Obergefell was the Battle of New Orleans of the Same Sex Marriage Wars. It came at the end, not the beginning. The opening salvos were all fired by progressives running well ahead of public opinion. Even in California, Prop 8 passed in 2008.

Moreover saying you support same sex marriage is not the same as saying you think there should be a constitutional right to it. I approve of school vouchers, but that doesn't translate to any assumed or even desired constitutional right.

Conversely I disapprove of people badmouthing the wise, godly and fragrant Amy Comey Barrett, but I must concede that not only do they have constitutional right to do so, but they should have such a right.

Constitutional rights and my preferences are not co-extensive.

[grb]

1. If you want to dig up contemporaneous polling data, please do.
2. Progressives may have been ahead of public opinion, but just barely.
3. The Supreme Court followed public opinion, not led it (as per Brett)
4. Most people think gays should have the right to marry, full stop.
5. Is Barret really fragrant?
5. There's a good song about the Battle of New Orleans

[jb]

You are mistaken. At the time of the decision, Vermont, New Hampshire, DC, New York, Washington, Maryland, Maine, Rhode Island, Delaware, Minnesota, Hawaii, and Illinois had legalized gay marriage through either legislation and/or ballot referendum without any requirement to do so from the judiciary. A number of other states had domestic partnership statutes.

[Lee Moore]

So I make those volunteer States about 18.9% of the population. Pretty much exactly the percentage of the vote Ross Perot got in 1992.

Hardly a populist wave.

[jb]

The confounding factor is that we don't know what would have happened in states where the courts did take the lead. I think it's reasonable to assume that in many of them you would have seen similar legislative approaches, although in some it's less likely.

Having said that, I'm not trying to make the case that there was a clear legislative mandate being mirrored by the court, just fact-checking Brett.

[Lee Moore]

Aren't you just making Brett's point for him ?

We don't know what would have happened in States where the courts took the lead.....because the courts took the lead !

The fact that you can only identify a fifth of the country where the courts didn't take the lead is not a powerful counter to the proposition that the courts took the lead.

In fact, as we all know, as with many a liberal cause celebre, the courts did take the lead and public opinion followed. With gay marriage public opinion has changed very quickly. With abortion and capital punishment, more slowly but still significantly.

[jb]

I don't think so. It seems to demonstrate that the legislative and judicial approaches emerged in parallel, roughly tracking a broader change in public sentiment (see https://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage/ showing support starting to exceed opposition in 2011, several years before the Obergefell decision).

[Brett Bellmore]

But, again, the Obergefell decision was the end of the war, not the beginning. The beginning was first state, then federal judges, imposing SSM in one state after another, often in the teeth of successful ballot initiatives prohibiting it. Not remotely what the courts and public opinion proceeding in parallel would look like.

The simple fact is that the judiciary led this battle, ran roughshod over democratic opposition, and finally triumphed over an opposition demoralized by the realization that winning elections didn't make any difference.

What terrifies me is that, what they did once, they can do again. What cause will they next get into their heads to impose on an unwilling nation?

[jb]

Brett, it's true that Obergefell was the end of the war, but the rest of your history is wrong. The Massachusetts court case led the way, but Vermont and New Hampshire legalized via the legislative route at roughly the same time as the courts were doing the same in Iowa and Connecticut. By 2012 more states had legalized via legislation than through court decisions, and that was also the year in which (three) states started to legalize via ballot measure.

[Lee Moore]

Brett : The simple fact is that the judiciary led this battle, ran roughshod over democratic opposition, and finally triumphed over an opposition demoralized by the realization that winning elections didn’t make any difference.

I'll slightly beg to differ here. I think the rapid falling into line of public opinion, after the judiciary led the battle, shows that a very large chunk of people who were against gay marriage only a dozen or so years ago, simply didn't have very strong feelings on the subject. Hence although some of them may have been mildly annoyed by the courts leading the charge, mostly they were in meh mode.

Contrary to abortion and the death penalty, where public opinion has had to be dragged pretty slowly over decades. Even now, half a century on, while public opinion is OK with abortion in principle, it begins to get much less OK once you get past the first trimester.

From which we may deduce that discomfort with gay marriage was only skin deep.

[iowantwo]

Iowa never legalized homosexual marriage. The laws stated marriage was man/woman. The court struck that down. No law has been passed recognizing homosexual marriage. Just judges decree.

[jb]

"If the constitution is that widely open to interpretation and filled with vague generalities, why not let the people or their elected representatives fill in the gaps? Seriously, if the Constitution isn’t an actual legal document but a bunch of vague political principles, then why are judges better qualified to resolve interpretive disputes than elected politicians?"

I think the short answer here is that this sort of ambiguity is inevitable and you still need someone to serve in the "umpire" role where conflicts arise out of the ambiguity.

A huge portion of the court's docket is statutory rather than Constitutional interpretation. Here, the legislature HAS acted and yet they've still managed to do so without perfect clarity--because, once again, we're talking about English words not mathematical proofs or computer code. If we didn't have the courts to engage in this function, what do you do when the government and a defendant disagree about sentencing guidelines in a law? What do you do in a dispute over what's allowed to be patented when one pharmaceutical company is trying to assert patent rights and the other is trying to bring a new drug to market? Someone needs to interpret the statute as written, warts and all.

Assuming you accept this premise, why is the Constitution any different? If there's a disagreement about what the Constitution says, how do we decide who's right? You say the legislature should decide, but what if it's a case like US v Lopez where the question is whether the legislature is exceeding the scope of its power? If we defer to legislatures, does that mean that if there's disagreement of the scope of something like the second amendment, that we don't need cases like Heller establishing that there is in fact an individual right to bear arms and we just let the various states/localities interpret the amendment as they see fit?

[Cal Cetín]

My scenario of legislative supremacy would apply only if the Constitution was more vague and malleable than it actually is. But for those who *do* think it's so vague and malleable, what is the argument against legislative supremacy and in favor of having the Supreme Court resolve things?

Yes, there would be cases where the legislature rules in favor of its own power, but there are cases where the Supreme Court rules in favor of its own power.

[jb]

"But for those who *do* think it’s so vague and malleable, what is the argument against legislative supremacy and in favor of having the Supreme Court resolve things?"

Because there's tons of language limiting what Congress can do, and very little trying to constrain the courts in the same way, so if we're worried about one branch or the other exceeding its Constitutional charter, there's a lot more opportunity for Congress to do so.

[Cal Cetín]

It depends on what you mean by "the same way," since there is a lot of language limiting what courts can do (can't deny jury trials, can't convict of treason with just one witness, etc., etc.).

Anyway, you're reading the Constitution as a legal document, and I happen to think it *is* a legal document, so let's not harp on our differences!

Reading it as a legal document, I certainly think the courts should block any executive or Congressional measure deemed by them to be unconstitutional. Once one of these challenged measures gets into a litigated case, the courts have to decide if the measure is valid.

But if the Constitution is just a bunch of noble sentiments to be fleshed out by modern people in light of modern conditions, then really, what would be the case for treating the Constitution as a legal document and letting the courts rule on these things? The federal courts aren't as closely in touch with the people and with modern needs! Congress is, or comparatively so.

I make this argument to show what I believe the conclusion to be if the Constitution is a vague, flexible, aspiration instrument, rather than a legal document as I contend.

[Lee Moore]

Krychek : In reading these comments, one consistent theme emerges: Judges who agree with me are properly interpreting the law; judges who don’t are stupid, evil, lazy, incompetent, and only care about the DC cocktail circuit.

I believe I mentioned the DC cocktail party circuit, so I suspect this is a dig at me. I am sorry to say that you have entirely misunderstood my point.

I don't for a moment believe that liberal judges are stupid, lazy or incompetent. Nor do i believe that they are swayed by DC cocktail party circuit opinion - by which I mean establishment liberal dogma. They are not swayed by DC cocktail party opinion, because DC cocktail party opinion is their own opinion. The folk who are getting swayed by DC cocktail party opinion are not the liberal judges - they're the squishy conservatives, who - if twere not a case with a political significance, would have no difficulty in arriving at the textually correct answer. But finding the answer likely to be unpopular (to the said audience), they pick a different one.

As for liberal Justices being stupid - no, they're no stupider than the conservatives on average, and some of them are very clever - eg Kagan. It takes real talent to argue convincingly that green is pink, and up is down. She's an excellent advocate in judicial robes.

As for evil, 75% of the question is whether it is evil for judges to choose the answer they like best and then paint prettily, but retrospectively, from the answer to the argument. Is a judge suposed to be a baseball umpire or a Platonic Guardian? To me the answer is obviously the former.

But do liberal judges truly, honestly believe that what they do - the Platonic Guardian thing - is what they're spposed to do as judges ?

Well perhaps the other 25% of the question is whether they will admit openly that they don't believe in baseball umpiring and do believe in Platonic Guardianing. I suppose Breyer is the closest to admitting that he just makes it up, with no constraints at all.

[Krychek_2]

Lee, if we had a beer we would probably get along far better than would appear from our comments back and forth.

Liberals and conservatives both suffer from confirmation bias, meaning that they come to the bench with certain presuppositions. That's human nature and it's unavoidable. If your presupposition is that living constitutionalism shouldn't be a thing, then that's the lens through which you are going to view the cases that come before you.

But what you call saying that green is pink, she would call faithfully interpreting the Constitution *as she understands it*. I was raised fundamentalist Christian; I get the concept of theological differences. This is essentially the same dynamic as disputes between Calvinists and Arminians.

[Sarcastr0]

This is true - I have more Republican friends than people might think. Just don't talk about current events and you're fine. Talk about economic policy, Constitutional philosophy, whatever.

Combination of in-person courtesy training kicking in and keeping things away from questions of fact and it's all fun.

[Lee Moore]

Textualism is a thing. It has rules. Out in the open. The rules impose constraints. It sometimes arrives at an answer that the judge doesn't like. It constrains the judge. Not perfectly, of course. Sometimes textualist judges cheat. Sometimes the rules don't land them on a single, clear answer. But the judge does not have unlimited discretion. Most of the time there's hardly any.

Living constitutionalism is not a thing, it's a euphemism.
It's a euphemism for unlimited judicial discretion. As I say, it's not always easy, because the living constitutionalist does not like to admit openly that he or she has argued backwards from answer to argument. It takes skill and guile to weave the pre-determined answer into an array of justifications for it. If the text is unreasonably inflexible, supposed but unaccountably unmentioned intent, or policy can be weaved in. But there are no rules that constrain the living constutionalist's weaving. The end justifies the means.

The difference between the thing and the euphemism is straightforward. It is the direction of travel.

The textualist sets out on a quest across the text to seek an unknown answer. The living constitutionalist sets out from the safety of a pre-determined answer, across the fields of text, and selects a broken twig here, an abandoned nest there, and a bank of flowers there, to gather some circumstantial evidence for the proper answer. And if flowers are necessary but lacking in the actual text, the holes in the argument are filled with imaginary flowers that were intended but were left unplanted.

[Sarcastr0]

Lee, this is a common strawman argument originalists or textualists bring up. There are plenty of books on the subject that explain various constrained philosophies. (Just as there are plenty of books explicating various originalist and textualist philosophies)

It takes skill and guile to weave the pre-determined answer into an array of justifications for it.
Just declaring everyone who isn't a textualist as a liar deceiving the public means your philosophy has become a dogma.

[Krychek_2]

Lee, the need for living constitutionalism arises because a lot has changed in 200 years and the conditions under which the Constitution was written no longer exist.

Take gay marriage, which wasn't even on the radar in 1789. Do you know for a fact that if the framers came back from the dead, and were updated on what modern science knows about human sexuality, and had the issues explained to them, that at least some of them wouldn't have agreed with gay marriage, possibly even as a constitutional mandate? Because I don't know that. And I'm not willing to guess what they would have thought about it.

[Brett Bellmore]

All you're positing is that if they were brought into modern times they might change their minds about what sort of constitution to write. No doubt that's true, though they might very well change their minds in ways you wouldn't like.

But it doesn't change the constitution they DID write.

[Sarcastr0]

He's just saying that the constitution they did write was not 100% determinative and directive.

Reading it, that's hard to deny.

[Brett Bellmore]

It's hard to deny in the abstract, frequently easy to deny in specific cases.

[Sarcastr0]

Easy for you, who sees bad faith in every action you disagree with.

[Lee Moore]

He’s just saying that the constitution they did write was not 100% determinative and directive.

No he's not. He's saying that that old Constitution as written won't do, because times have changed. We need to consider modern conditions.

And the answer is - for the judicial role - no we don't.

If there's no Constitutional rule to cover situation X, because the founders were unaware of situation X, because it's new, that simply leads to the conclusion that there's no Constitutional rule. If we start off trying to imagine what the founders would have thought about situation X, if they were aware of it, and pretend there's a constitutional rule to cover it, we're not applying the actual Constitution, we're applying our imagination. Who wants to be ruled by other people's imagination ?

Since in places the constitutional text is not so precise as a statute, we sometimes have to face the problems of vagueness and/or ambiguity. We have to decide whether situation X falls within the written rule or without. But that task is not one for the imagination. It's a task for applying long established principles of construction to try to arrive at the most plausible of the possible answers - whether they fit conveniently to modern conditions or not.

You go to all the trouble of spinning a yarn of imaginary constraints on "living constiutionalists", and then up pipes Krychek to say "Yes, yes, yes ! That's it.........so long as it produces a good answer in modern conditions !"

It must be hell to have such plain speaking allies as Krychek 🙂

[Sarcastr0]

I'll leave that to Krychek_2, as to whether he's actually advocating to throw away the Constitution.

Modern Constitutional law largely applying the principles of the Constitution to new fact patterns the Founders could not have imagined.

[Lee Moore]

I have no difficulty at all with "applying the text of the Constitution to new fact patterns the Founders could not have imagined."

That's what judgin' is all about.

It's these principles that worry me. Are these principles written down somewhere ? And if not, how do I know you're not making them up ? Or rather, if they're not written down, I know you're just making them up.

[Sarcastr0]

Breyer has an answer in his Active Liberty.
Personally, I think you should interrogate modern meanings of words as our understanding changes - what is a person, what is speech, etc.

There are lots of ideas on how to get the purpose out of the Constitution; text is only one. And none of them are unconstrained legal realism; that's why when you do see judges say 'screw it, I rule like I want' it makes a splash. (Posner did that recently, right?)

[Krychek_2]

Actually, what I would say is that what the framers intended is less important than what the text actually says. But I don't think that the fact that a specific subject or fact pattern isn't mentioned means there's no constitutional rule; you just have to derive the rule from general principles.

The Constitution may not mention gay marriage, but it does mention equal protection, and equal protection covers gays who want to get married. It may not mention abortion, but it does have something to say about privileges and immunities, which includes a woman's right to her own bodily integrity. The word Internet appears nowhere in the Constitution, but freedom of speech and the press certainly do.

And I also think that our understanding of what something means controls over what the framers thought it meant. In 1789, probably nobody thought that public floggings were cruel and unusual punishment, but we certainly would. So if I were a judge and a public flogging case came before me, my question would be whether it would be considered cruel and unusual in 2020, not whether it would have been in 1789.

[iowantwo]

In 1789, probably nobody thought that public floggings were cruel and unusual punishment, but we certainly would.

Your flogging analogy argues against your position.
Courts did not outlaw floggings. The people did. Cruel and unusual was a protection against an unaccountable criminal justice system. What we have is from the bottom up, local law enforcement through elected officials. Town police Chief, local elected prosecutor, Judges standing for election, elected county sheriff's, and DA's Elected States attorney, up the elected chain we go. The people define what is cruel and unusual. A judge should only interpret what is in front of them by statute, created through a representative govt.

[Krychek_2]

Brett, I'm not sure it's in conflict with the Constitution they did write. My whole point is that it's foolishness to say what the framers would have thought about issues they probably never thought about. The bottom line is you take a narrow approach to the text and I take a broader one. Is there anything in the Fourteenth Amendment that precludes it being read to protect gay marriage? I don't see it if there is. Is there anything in the Due Process Clause that precludes it being read to protect gay marriage? I don't see that either.

And, if something is ambiguous, why wouldn't you want to take the interpretation that does the best job of protecting individual rights?

[Sarcastr0]

Even Scalia had to do some thinking about infrared sensors and the 4th Amendment.

[Cal Cetín]

"Do you know for a fact that if the framers came back from the dead, and were updated on what modern science knows about human sexuality, and had the issues explained to them, that at least some of them wouldn’t have agreed with gay marriage, possibly even as a constitutional mandate?"

Assume the resurrected Founders would have proposed a constitutional amendment on the subject, in order to being the Constitution "up to date." What does this have to do with the actual Constitution they left us? If they changed their minds later they'd have to do what anyone else has to do - propose an amendment to reflect their changed thinking.

[Krychek_2]

But why bother, when the Constitution *as currently written* protects gay marriage? See Equal Protection Clause.

And how is disallowing gay marriage *not* a violation of the Equal Protection Clause?

[Cal Cetín]

I dunno, ask the unanimous Supreme Court from back in - what was it, 1971? Yeah, that was a bench packed full of retrogrades and reactionaries!

[Krychek_2]

Turning down a case is not a decision on the merits.

[Cal Cetín]

The appeal was dismissed for want of a substantial federal question.

https://www.scribd.com/document/21017674/Baker-v-Nelson-409-U-S-810-1972

At the time, IIRC, cases challenging the validity of state laws were within the Supreme Court's compulsory jurisdiction, so they had to make a decision.

They said gay marriage not only wasn't in the Constitution, but that the question wasn't even close.

This, in a court with some quite noteworthy liberal members.

[Krychek_2]

That still doesn't answer my initial question of how not allowing gay marriage doesn't violate equal protection. That an earlier supreme court may have agreed with you (or may not have) is not responsive to that question.

[iowantwo]

So rules written that say persons with a penis can only participate in male sports, violate equal protection?

[Krychek_2]

The issue there would be whether the state can articulate a compelling reason to keep people with penises off women's sports teams. Since the whole reason to segregate mens and womens sports is that having higher testosterone levels and greater muscle mass gives males an unfair advantage over women, that rule might well survive equal protection. But, the issue isn't having a penis so much as having higher testosterone levels and greater muscle mass.

[Absaroka]

Does a rule that the 'normally abled' (extreme example, the person who won the most recent Olympic Gold in the event) can't compete in the Paralympics violate equal protection?

Can a current pro baseball player compete on a Little League team? NFL player in Pop Warner football?

How about weight classes for wrestling? Can a 22 year old compete in the senior classes for a 10K race?

[Dan Schiavetta]

As a liberal I'm not worried about Barrett at all. If she is true to her "originalist" principles she will always be recusing herself because women weren't within the meaning of "judges" in 1787 and therefore can't conduct judicial review.

[iowantwo]

I need a cite on that.

[Dark Night]

The stupid is large in this one.

[Sidney r finkel]

So what exactly qualifies this person to be called "brilliant"?

She was nominated to the appellate position solely because of her religious background in the hope that she would apply Sharia, sorry, Catholic law in her opinions. She has almost no record as a judge, no 'brilliant' opinions because she has not been on the court long enough to have them. She is closest to Clarence Thomas, a totally unqualified appointee who was placed on the Court because of the color of his skin. The most believeable thing about Thomas is that each Chief passes on a note to his successor which says "Don't ever assign Clarence a major opinion, he has no idea of what he is doing". If Barrett turns out to be person they think she is and writes opinions based on catholic theology, they will say the same thing about her.

Her other qualification is that she clerked for Scalia, but in her post clerk days there does not appear to be any 'brilliant' legal research.

As for the 'Originalist' argument, conservative justices are 'Originalist" only when it fits with their pre-conceived political opinions. Remember, the so-call originalists could not even come to the conclusion that medical care as practiced in the U. S. is interstate commerce.

This is a pyrric victory for those who want to use the Court to limit rights of the people and expand rights of the corporate sector. The backlash will be severe and destructive and divisive.

[Titus PUllo]

Have an issue with Catholics huh? Old world grudge maybe? How do you feel about Italians or Irish? Or maybe Polish?

[Furslid]

I have an issue with any judge who holds their personal beliefs above the law when judging. She wrote an article claiming that Catholic judges should refuse to enforce the law fairly in death penalty cases. In other words, Catholic Dogma trumps US Law.

Judges are supposed to rule according to the law. Ruling according to their personal beliefs is legislating from the bench and an unacceptable level of judicial activism.

I would have a problem with a Muslim who said that Sharia trumps US law being a judge. I would have a problem with a feminist who said that dismantling the patriarchy trumps US law. I would have a problem with a libertarian who said the non-aggression principle trumps US law.

If you wouldn't accept all of the above, you are a pro-Catholic bigot, as you grant Catholics the special privilege to ignore the law in favor of their Dogma.

[Lee Moore]

I have an issue with any judge who holds their personal beliefs above the law when judging. She wrote an article claiming that Catholic judges should refuse to enforce the law fairly in death penalty cases. In other words, Catholic Dogma trumps US Law.

This is, of course, complete drivel. The article you are entirely misunderstanding (though I suspect you've never read it and are simply regurgitating spin from elsewhere) is called Catholic Judges in Capital Cases and was pubished in 1998.

It is a serious piece of moral philosophy, and it concludes that Catholic judges in capital cases may face serious moral questions, though which questions and how serious, depends on what particular role the judge is playing (eg trial v sentencing; trial court v appeals court.)

The moral questions discussed are those facing Catholics, in the light of Church teaching. But she and her co-author also make the point that this is just a particular example of a general issue for all judges - what to do when your responsibilities as a judge create some apparent conflict with your moral beliefs. It is not a question limited to Catholics.

The only judges exempt from such worries are those without moral beliefs. Good luck with them.

She concludes that when the requirements of the law and moral belief are not reconcilable, the appropriate course for a judge is recusal.

Her conclusion seems entirely unexceptional :

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot - nor should they try to - align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect.

Unexceptional, except for the fact that I doubt many judges would be up to writing so coherently about moral philosophy.

[Furslid]

How many cases has she recused herself from as a Catholic? She's had abortion cases come up for rulings already.

If her principle is to recuse herself from cases where her morals might conflict with the law, we might see that in her record. I know that she's judged on some abortion rights cases.

As for your argument on principles, this is the principle on law and personal morality. No one person, including me, will have their morality perfectly match the law. It is acceptable for the law, in it's impartiality to violate an individual's moral beliefs. This applies to me. This also applies to judges.

[Lee Moore]

Well, perhaps you should read her piece.

Which is about capital punishment. Not abortion. She distinguishes between capital cases where the judge is presiding over the trial (not a problem) and sentencing (a potential problem.) And cases for appeals court judges where the appeals court may be doing different sorts of things. The distinctions seem to be based on the directness of the connection between the judge's ruling and the infliction of the death penalty.

Extrapolating, my presumption is that she would have much less of a problem with abortion cases, because judges in abortion cases are seldom required to order that an abortion be performed. They are much more likely to be ruling on whether someone else may or may not choose to have an abortion. Consequently, ruling that under the law someone may choose an abortion, insulates the judge from the moral responsibility for the abortion happening. That is someone else's choice.

I imagine there could be cases where a judicial order might be issued to perform an abortion, though I would doubt that such a think would be other than very rare. And in such a case, she might conclude that she should recuse.

No one person, including me, will have their morality perfectly match the law. It is acceptable for the law, in it’s impartiality to violate an individual’s moral beliefs. This applies to me. This also applies to judges.

What do you imagine she meant by :

Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. ?

[Furslid]

I think it means that judges should not follow the law where it contradicts with the church's standard. That is what it says.

Combined with your earlier quote, it implies that she considers church teaching as categorically different than personal beliefs which the law can violate in its impartiality.

This is special pleading. Regardless of how she dresses it up, the Church's teachings are personal beliefs, not a legally distinct category.

[Lee Moore]

Furslid : I think it means that judges should not follow the law where it contradicts with the church’s standard. That is what it says.

No it doesn't. It says the opposite :

ACB : Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.

Judges may not, in their role as a judge, put the Church's moral teaching above the law.

ACB : They should, however, conform their own behavior to the Church’s standard.

And if the law requires them, in their role as a judge, to go against the Church's moral teaching - they must recuse.

Furslid : Combined with your earlier quote, it implies that she considers church teaching as categorically different than personal beliefs which the law can violate in its impartiality.

Well she considers the Church's teaching as categorically different for her than, say, your personal beliefs. But your personal beliefs are more important for you than are the Church's teachings. She happens to be writing an article about the intersection of Catholic teaching and the responsibility of judges who are Catholics, which is why she keeps on making reference to the Church's teaching, and to how Catholics should act.

But as I mentioned before, though it seems to have sailed straight by you, she makes it clear that the same issues arise for anybody, whatever their moral beliefs :

me : "The moral questions discussed are those facing Catholics, in the light of Church teaching. But she and her co-author also make the point that this is just a particular example of a general issue for all judges – what to do when your responsibilities as a judge create some apparent conflict with your moral beliefs. It is not a question limited to Catholics. "

Furslid : This is special pleading. Regardless of how she dresses it up, the Church’s teachings are personal beliefs, not a legally distinct category.

Cluelessness piled on cluelessness.

(a) It's not special pleading because she explicitly states that the same issues arise for everybody
(b) she agrees with you that the Church's teachings are personal beliefs (for Catholics) and
(c) that a Catholic judge cannot appeal to her personal beliefs as a reason for overriding the law any more than you could

So you are determined to despise her, even though - if you had the smallest clue as to what her arguments are - you would find that you agree with her 100% on what a judge should do about reconciling their moral beliefs with the law.

[markm23]

Is it cluelessness, or is it that Furslid could not pass up an opportunity to impose his beliefs regardless of the law, and cannot imagine anyone else doing so?

[Noscitur a sociis]

The most believeable thing about Thomas is that each Chief passes on a note to his successor which says “Don’t ever assign Clarence a major opinion, he has no idea of what he is doing”.

Since there have only been two Chief Justices during Thomas's tenure, and the transition was precipitated by the incumbent's unanticipated death, this doesn't seem particularly believable at all.

[Armchair Lawyer]

Nothing like a little anti-Catholic bigotry...

[Rev. Arthur L. Kirkland]

Judge Barrett is a stale bigot. Cloaking that bigotry in religion does not improve it.

[Don Nico]

Kirkland you think that you portray yourself as rational, but with every post you show yourself to be as bigoted and mean-spirited as they come. Right down there with the Orange Clown.

[Rev. Arthur L. Kirkland]

Disinclination to appease gay-bashers, racists, misogynists, and the like is not bigotry, no matter how much conservatives wish and claim that to be so.

I am not much interested in pointers on mean-spiritedness at a blog that censors me repeatedly but not those who talk about sending me to a Zyklon shower, placing me face-down in a landfill, shooting me in the face, or gassing liberal judges.

[Lee Moore]

Nothing like a little anti-Catholic bigotry…

There also seems to be a whiff of old fashioned plantation style bigotry in there too.

Maybe time to open a window for some fresh air ?

[Krayt]

This is a pyrric victory for those who want to use the Court to limit rights of the people and expand rights of the corporate sector. The backlash will be severe and destructive and divisive.

This is supposed to be a free country. It's sad each side has taken up opposite positions on each of those two items.

You are both evil incarnate. Have a nice day.

[Titus PUllo]

Honestly the real problem is the whole idea of judicial review. I think The Kentucky and Virginia Resolutions of 1798 and 1799 pretty much put this to bed...States have the final determination if a federal law is constitutional..that has been an issue from day one....judges simply should not and in our Constitution were not given the power to decide if a Federal Law was constitutional...that is left to the States as it should be. If only Jefferson wasn't screwing around in Paris...the SC would be a minor third party branch as it should be....

As for this nominee...I get she isn't the woke type that certain folks like (Catholic...and not the "right" religion or tribe) but seriously....ivy league types are overrated..worked with a bunch..not that smart.

[Krayt]

Oh come on. How are the giant coastal cities gonna tell millions of square miles how to live their lives in detail without it?

[jb]

Well, that basically sums up the political dynamic today: why should we listen to all of these PEOPLE, when our team controls so much LAND?!?

[Peter Gerdes]

I'd be much more inclined to believe that if she hadn't so blatantly ignored the circuit precedent on mandamus in the Flynn case. Look, there is a decent argument that the precedent on mandamus is too strict and a plausible argument that Flynn deserves immediate relief but her job was to apply that precedent and there was absolutely no question that existing precedent didn't grant him a right to mandamus since he had the ability to appeal after a judgement was entered (and the idea that mere delay was the harm would turn that precedent into an empty vessel since the harm of delay is something any party could claim).

[Lee Moore]

Hmm. May I recommend a new pair of spectacles ?

But when you do finally make out the difference between Neomi Rao and Amy Comey Barrett, your first line indicates that you'll be all in for Amy, right ?

Good to know 🙂

[David Nieporent]

Um, you know that Neomi Rao and Amy Coney Barrett are different people, right?

[Leo Marvin]

Prove it.

[David Nieporent]

Damn, he caught me.

[WuzYoungOnceToo]

Now that you mention it, you never see them in the same room at the same time.

[Stephen Lathrop]

Until we get an, "originalist," justice who at least troubles herself to learn the principles of academic historical reasoning, we aren't going to see any but inept originalists. No brilliance at all, nor even the self-discipline to be forthright. She believe what she believes, and will do her level best to make that the law of the land.

[Sam Gompers]

I want someone who is just as partisan and goal-seeking as the other side has. You know, some hack like RBG was.

[Sarcastr0]

No, you just wanna be a troll on the Internet. It's an intellectually easy life, if not a fulfilling one.

[Sam Gompers]

Meanwhile you want to gaslight and lie on the internet. Something even less fulfilling then trolling.

[Sarcastr0]

At least Soros pays me for my time.

[Leo Marvin]

If you're going to accuse someone of lying, show your nonexistent evidence.

[Sam Gompers]

Wasn't that you crying the last time I caught Gaslightro cold-lying?

That wasn't too long ago.

[Sarcastr0]

This is just empty doubling down.

You posted some empty, trollish nonsense, I called you on it, and you went for the personal attacks.

It's pretty sad, really.

[Leo Marvin]

I've seen you apply your toddler-level comprehension to all sorts of erroneous claims. If you risibly think one of them was catching Sarcastro in a lie, feel free to refresh my recollection. But if, as I'd happily bet, you didn't have the goods then and don't have it now, don't waste my time.

[Rev. Arthur L. Kirkland]

"I want someone who is just as partisan and goal-seeking as the other side has. You know, some hack like RBG was."

You're going to get four of them, clinger.

Open wider.

Or not. Your comfort will no longer be a concern in January.

[Larvell Blanks]

The difference is, Republicans actually do nominate justices who might actually reason their way into a Democrat-friendly ruling on an important issue. Nobody even pretends to think the votes of Democratic appointees are up for grabs.

[Sarcastr0]

That's not actually true. It's just when there's a 6-3 split your way you take it as your side being so obviously right even the evil libs had to save face.

Criminal law is replete with examples.

[jb]

Roberts and Alito vote together with almost the exact frequency of Sotomayor and Kagan, so actual data would disagree with your confirmation bias.

[Lee Moore]

Sure, Kagan sometimes votes tactically with the conservatives, against Sotomayor, when she's going to lose anyway, and when her vote can buy a softened ratio from Chief Justice Emollient.

Roberts sometimes votes with the liberals, against Alito, to actually flip decisions to the liberal side.

Sotomayor and Alito vote the party line.

What you need to identify are cases with political value where :

(a) if Roberts had voted the other way, the conservatives would have won instead of the liberals;

(b) if Kagan had voted the other way, the liberals would have won instead of the conservatives.

The answers are (a) = plenty, (b) zero.

[jb]

Wow, good job. You figured out that when there's two voting blocs with a 5-4 skew, that when someone defects from the 5 person bloc it is more likely to change the outcome than when someone from the 4 person bloc does.

[Sarcastr0]

Congrats on your unfalsifiable thesis, considering the Court's current makeup.

[Lee Moore]

Of course it's falsifiable. It just requires one conservative (eg say Kennedy or Roberts) to go the liberal way, and Kagan to go the conservative way.

If it's really the case that Kagan could "defect" when it really matters, we would expect that for n 5-4 liberal wins in the last 10 years, caused by a conservative defection, there'd be y% times n 5-4 conservative wins, with a conservative defection balanced by a Kagan defection. y might be big, y might be small. But if it's any number above zero, you can falsify my hypothesis. Which is that y = zero.

So go to it. (No cheating now - only cases with a political value on the conservative - liberal spectrum count.)

[Sarcastr0]

You require a double defection rather than a single one. On a socially important case.

How often do defection happen now? Rare enough people are still bitter about them a decade later.

Think about that low frequency, think about the odds of it happening twice in the same case, and you will see why absence of that evidence may not be proof of much.

[Lee Moore]

Well, all other things being equal, and if liberals are indeed no more biased than conservatives, in a 5-4 court you would expect 0.8 liberal defections per conservative defection.

So if in ten years there have been, say, 50 politically controversial cases - 5 a year - then I'd guess a conservative defects about 30% of the time. So 15. (But feel free to do a proper analysis 🙂 )

So if a liberal defects 30% of the time then you'd expect that defection to occur in 0.8 x 30% = 24% of those 15 cases.

So you should find about 3 or 4 cases of each way defections resulting in a 5-4 conservative win, with a conservative defection balanced by a liberal one.

Whaddya got ?

[Sarcastr0]

Cases are not randomly distributed; this is just so much dumb math.

[jb]

Here's some actual data for you (specifics for the 2018/19 term, but some aggregated data going a ways back):

https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19-19-21.pdf

The most common 5-4 split is for the conservative majority to vote as a bloc. Gorsuch and Robert do "defect" fairly often, and there's one each from Kavanaugh, Roberts and Alito but that leaves 4 cases with more unusual configurations, including 3 where one conservative and one liberal crossed sides, which makes for 1/7th of the total 5-4 decisions. It's a little hard to tell with just this data set, but it means that you get this double defection in 23% of the cases where a conservative defects.

We're as mathematically close to your hypothesis as we can get with 13 conservative defections, so it seems like liberals and conservatives do defect exactly as you'd predict if both sides were indeed equally (un)biased!

[Lee Moore]

Good effort. Unfortunately it doesn't identify cases of political significance on the lib-con spectrum. For example I glanced at the four cases in which Gorsuch tipped the balance to the libs, and they weren't cases with any important political value.

I was guessing at about 5 politically important cases a year, your stats show getting on for four times that number of 5-4s. And the Gorsuch glance indicates that a lot of the 5-4s are not significantly political. So your list is very overinclusive.

But seeing as you have a list, and seeing as you may be able to identify what these cases are about without looking them up (I am much too lazty to look them up all myself), maybe you are in a good position to identify one of those white whales we were looking for. A Kagan defection that tipped the balance in a politically significant case.

[jb]

Your "political significance" test is completely arbitrary, and assuming your math is right we'd only expect to see one significant co-defection case every 2-3 years, so I see no need to play this game any more.

You posited a range of co-defection that would demonstrate that both sides are acting in good faith. It turns out that's basically the exact rate at which it happens, and yet you still stick with your assumption that the judges on your team act in good faith but the ones from the other act in bad faith. Honestly, do you ever stop and wonder if you're trying to be informed by new information, or just searching for more evidence to confirm your priors?

[Lee Moore]

Your “political significance” test is completely arbitrary

No, it is simply not defined at present, because I have not bothered to do so. It would include Lib v Con battles on :

1. Voting and elections
2. Obamacare
3. Border and immigration
4. Death penalty
5. Abortion
6. Guns
7. Campaign finance
8. Census
9. Business regulation
10. Labor rights
11. Discrimination
12. Free speech
13. Religion

Honestly, do you ever stop and wonder if you’re trying to be informed by new information

Not really, because I don't have to stop and wonder. As I keep saying, refutation of my hypothesis is easy. I just need you to produce a Kagan defection that flipped the result in a politically important case. She's been on the court for ten years.

[EscherEnigma]

Call me when conservatives nominate a judge that doesn't want my marriage annulled.

[SunnyR]

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