Justice Sotomayor Speaks on Her "Desperation" on the Court

Recent remarks at Harvard may be a preview of what is to come.

The New York Times reports on recent remarks by Justice Sonia Sotomayor at Harvard University's Radcliffe Institute.

Some days, after Justice Sonia Sotomayor listens to the Supreme Court announce its decisions, she goes into her chambers, shuts the door and weeps.

"There are days that I've come to my office after an announcement of a case and closed my door and cried," Justice Sotomayor told a crowd on Friday at the Radcliffe Institute at Harvard University, where she was being honored. "There have been those days. And there are likely to be more." . . .

"There are moments when I'm deeply, deeply sad," she said, without citing any specific cases. "There are moments when, yes, even I feel desperation. We all do. But you have to own it, you have to accept it, you have to shed the tears and then you have to wipe them and get up."

In saying there "are likely to be more" trying days on the Court was Justice Sotomayor providing a hint of what the Court will do this term? Or is it merely an indication of what she expects in coming years given the current makeup of the Court?

Earlier this term, Justice Jackson may have dropped a hint on the outcome of Loper Bright and Relentless.

Comments

[JesusHadBlondeHairBlueEyes]

Cries uncontrollably in her chambers?

That sugar has rotted her brain. Why do we have emotional children and morons in such important roles?

Is that the endgame of DIE?

[ChrisC]

She weeps for her lack of intellect that prevents her from assembling a majority of her colleagues to support opinions she favors.

[Riva]

Let the incompetent hack cry all she wants as long as she doesn’t retire before President Trump is sworn in for his new term.

[LawTalkingGuy]

"Why do we have emotional children and morons in such important roles?"

Good question, I'll ask Jim Ho and Sam Alito next time I see them.

[JesusHadBlondeHairBlueEyes]

Aren't all the serious people too busy trembling in fear and paralyzed after hearing about a patriotic flag Sam once flew?

Do you think it would be safer to call the Pentagon and have them send out a battalion of Y'asssss Queeeens,homo's and trannies to ask Alito so you, and our Sacred Democracy, can stay safe?

[LawTalkingGuy]

Reactionaries are often the most emotionally stunted child-like morons on the planet.

For instance, the sentence:

"Y’asssss Queeeens,homo’s and trannies to ask Alito so you, and our Sacred Democracy, can stay safe?"

is the kind of sentence an emotional child and moron would write.

[Rev. Arthur L. Kirkland]

Why be so hard on awkward, antisocial, morally stunted, on-the-spectrum, superstition-addled, fearful and anxious, disaffected, resentful, narcissistic, , socially inept members of our society?

Sure, they're mostly broken and worthless jerks, and stains and drains on modern society . . . but they are (sometimes) trying their best to cope with a world they don't quite understand, and they are (damaged, substandard) people, too.

[Rev. Arthur L. Kirkland]

After reflection, I should clarify that a few of the Volokh Conspirators and a few of their conservative fans do not match that description.

Well, at least a couple.

Maybe.

[Joe_dallas]

This is the judge that buried the facts in Ricci, thus clearing the way for intentional discrimination (later reversed by the US Supreme court).

this is the justice that dissented in Shuette to claim it was unconstitutional for a state to amend its state constitution to require compliance with 14A of the US constitution.

Read her dissent in Students for fair admission. This is a justice that is fully on board with discrimination - discrimination of the type which she likes. Lets just screw 14A

[bernard11]

I don't see what the fact that you disagree with some of her decisions has to do with the OP.

[Sonja T]

Her dissents shows she is hostile to the 14th amendment. Everyone should be disagreeing with someone hostile to the 14th amendment.

[Sarcastr0]

Area commenter passionate defender of what she believes the Constitution to say.

[There is a set of people who can't get past what they personally believe the Constitution says (and their Constitution invariably aligns with their priors).
This is a legal blog though, and it can be nice to get out of the way of yourself sometimes to have some broader discussion than the purely partisan.]

[John F. Carr]

Liberals will think this is an outrage and conservatives will savor the sweet taste of liberal tears.

[bernard11]

No doubt, John.

And few will recognize that the correct thing to do - as their mothers would have told them - is to respect her emotions and privacy, and perhaps feel a bit of sympathy, even if you like the decision she reacts to.

Is having an emotional reaction when something you regard as highly important turns against you such a disgrace, or something for your opponents to gloat over?

Not everything ought to be turned into a political cudgel, or be an occasion for some nasty gloating.

And all the tea leaf reading, including Adler's, is about as bad.

[Mr. Bumble]

"...is to respect her emotions and privacy, ..."
She is the one who put it out there.

[Nige]

You're responsible for how you respond, if you respond.

[Kazinski]

The law shouldn't be that emotional.

Leave the emotions, and the moral handwringing for the legislatures and the people. They write the law, they balance the issues. The justices should read the law and apply it to the facts.

If she is on a moral mission she should run for office.

[Lee Moore]

I agree. If you're a judge in a tyranny and you find yourself having to participate in the enforcement of morally terrible laws, then weepin' is reasonable.

But the USA is not a terrible tyranny, and the sort of things that SCOTUS decides are hardly morally gutwrenching. If you find all this weepworthy, it betokens the lack of a sense of proportion. Which is not a good thing in a judge.

[LawTalkingGuy]

"The sort of things that SCOTUS decides are hardly morally gutwrenching."

They are literally deciding a case about how close Idaho can get to letting pregnant women die before they can get an abortion. They are deciding a case about how easy it will be for domestic abusers to access guns. If you don't think these are "morally gutwrenching" you don't actually understand what morals are.

[John F. Carr]

The Supreme Court routinely decides cases about life and death or the functional equivalent, decades in prison. If hypotheticals about emergency abortions get the liberal justices that teary maybe they ought to recuse. Thomas too; see his digression into eugenics in the selective abortion case a couple years ago.

[LawTalkingGuy]

"If hypotheticals about emergency abortions get the liberal justices that teary maybe they ought to recuse."

Judges are humans judging human affairs. These are inherently emotional. If you don't want them to act like humans, use a fucking coin or ChatGTP for an answer.

[Lee Moore]

I have a long running argument with Sarcastro on this very point. I'd be happy to use a robot, except for the fact that you commies would rig the program.

[LawTalkingGuy]

"I’d be happy to use a robot, except for the fact that you commies would rig the program."

I think you might have some sort of personality disorder.

[Lee Moore]

Keep thinking Butch, that's what you're good at 🙂

[LawTalkingGuy]

You have an unhealthy relationship with human emotion, don't seem to understand why people have them, and also appear to have paranoia about "commies" "rigging" things.

[Lee Moore]

Exactly. Docs and nurses deal with death and horrible injuries and diseases all the time. Soldiers too. Police too. Firemen too.

LTG's reply simply confirms my view that the liberal idea of an ideal judge is someone who will consult their feelings and ignore the law. Plenty of space for such folk in the land. But not on the bench.

[LawTalkingGuy]

Have you ever been in court?

[Lee Moore]

I was on a jury once - when I was 18, and I was the only juror who wanted to acquit a thief, whose guilt was obvious even to his mother, simply because I didn't wish to be responsible for his punishment. I attempted Henry Fonda style to persuade my fellow jurors of several entirely fantastical ways in which the thief might be innocent. I was unsuccessful. He was convicted, at which point his 38 previous convictions were mentioned.

Since then I have grown up a bit.

[LawTalkingGuy]

Okay, so it sounds like maybe you're operating under some false belief that adult-hood is supposed to be some kind of emotionless endeavor and you're overcompensating for the idealism of your youth.

But if you you're involved in the legal system, you know that its extremely emotionally fraught.

And while judges try to keep themselves stony-faced on the bench, they still have emotional reactions to things and may express those emotions off the bench (or sometimes on, if appropriate). I mean if you're sending someone to prison for a long time under a draconian law or listening to the testimony of victims who have been greatly harmed or any number of things, it'd be weird if you didn't.

[Lee Moore]

overcompensating for the idealism of your youth

Not "idealism", just moral cowardice.

[Lee Moore]

I mean if you’re sending someone to prison for a long time under a draconian law or listening to the testimony of victims who have been greatly harmed or any number of things, it’d be weird if you didn’t.

And so, just as you want your cops and firefighters to be good at stoically doing their thing and not panicking, you want to select your judges from those who are good at suppressing their empathy and emotions, so that it interferes as little as possible with their duty to apply the law fairly. By which I do not mean according to what they personally regard as fair, but according to what the law prescribes.

If what the law prescribes is morally abhorrent to them, or if they find themselves unable to abstract their emotions from the case, they should resign and do something else.

I don't say that this is necessary for all lawyers, only judges. Though as a client I prefer to have a lawyer who tells it to me straight.

[LawTalkingGuy]

You're confusing behaving neutrally in the moment with the act of not having emotions and expressing them in private spaces afterwards.

[Lee Moore]

You’re confusing behaving neutrally in the moment with the act of not having emotions and expressing them in private spaces afterwards.

Au contraire. I am advocating suppressing your emotions in court precisely so you can "behave neutrally in the moment." And consequently selecting judges who have the capacity to do this.

Unlike this guy :

Good lawyers and judges can’t let their emotions overwhelm them, but if they think they shouldn’t have them at all or suppress them too much they won’t be able to do their job correctly.

who disapproves of judges suppressing their emotions, and even claims they can't do their job properly if they try too hard to do so.

So we simply have a fundamental disagreement as to the proper role of a judge. My judge is a slave to the law as he finds it, and capable of suppressing his emotions to the extent that they play no part in his decisions. Yours is a schoolgirl experimenting with alcohol for the first time.

[LawTalkingGuy]

"My judge is a slave to the law as he finds it, and capable of suppressing his emotions to the extent that they play no part in his decisions."

Your judge is a fictional robot who does not exist. And if you interacted with judges you would know this.

"Yours is a schoolgirl experimenting with alcohol for the first time."

No its a real human being involved in human affairs having normal human reactions that they balance against their responsibilities.

Seriously. Meet some judges. Or at least some humans.

[Lee Moore]

Of course my judge is fictional. I'm describing the ideal of a judge.

The schoolgirl is your ideal judge, not a real judge - or at least I hope not !

"a real human being involved in human affairs having normal human reactions that they balance against their responsibilities"

Balance ? Their job is to carry out their responsibilities. Their human feelings do not belong on any balance, balancing against their responsibilities. They can indulge their human feelings when they get home.

Of course judges are real humans with normal human reactions, but one of ther responsibiities is not to let personal opinions or personal feelings interfere with their responsibilities. If they're bad at that, they should try another line of work.

[NOVA Lawyer]

Lee,

You have a bizarre view of humans and humans as judges.

Also, please note, according to the anecdote, that Sotomayor did suppress her emotions on the bench and in front of her colleagues. She says she shed tears in private in her office. That's being a normal human being. Your purported rules don't even indict her, but you, apparently, are too emotional to see that Sotomayor did exactly what you would have her do.

This bit is rich:

Docs and nurses deal with death and horrible injuries and diseases all the time. Soldiers too. Police too. Firemen too.

And all but the sociopaths who do those jobs cry. Have you ever known an actual human being? Have you known a doctor or a nurse or a soldier or a police officer or a fireman? They all occasionally get overwhelmed with what they saw. Because they are humans.

You seem to have this idea that everyone in any of these positions can or should be Spock. That's neither realistic nor desirable. Yes, in the moment, they should have enough control of their emotions to do the job. But, again, that's what Sotomayor did and then went into her office, in private, and shed tears.

You're weird asf.

[LawTalkingGuy]

“The schoolgirl is your ideal judge, not a real judge – or at least I hope not.”

Having worked for, with, and in front of judges, I don’t have the luxury of even contemplating an ideal judge. I’m a pure realist on this. There are pretty good ones and there are pretty bad ones. And sometimes the good ones are bad on something I consider important and the bad ones have a bright spot or two.

“Balance ? Their job is to carry out their responsibilities. Their human feelings do not belong on any balance, balancing against their responsibilities.”

For the millionth time: this is simply not how judges specifically or humans generally operate. They aren’t Data. They don’t have an emotion chip they turn off. They have to act in the real world and figure out how to fulfill their responsibilities while dealing with the emotions they have every single day in an appropriate fashion.

And not for nothing: but even the fake stony-faced robot approach is generally an emotional response: it's born from a desire to be proud of ones reputation as a fair and impartial judge. Pride and a desire to be seen as “good” are emotional matters too!!

[Bwaaah]

Contemplation of cases can be emotional, but that should be carefully managed within a competent jurist’s private space.

We don’t want someone like Sotomayor, who somehow intuits beliefs, like during COVID-19, “We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.” What kind of bubble did *that* idea come from, and OMG, wouldn’t it be immoral if we didn’t take immediate action to do whatever we could to save those children?

With fear-driven, fabricated, unfounded “knowledge” like that, it would be optimistic to think that all she does is cry (in private) and tell her crying story (in public). But she’s really just chasing her beliefs, false or otherwise, and righteously dragging our system of jurisprudence along for the ride.

Not a model of prudent thinking, I'd say.

[Lee Moore]

Suddenly we're knee deep in amateur psychiatrists !

I'm not quite clear, in the light of your analysis of Sotomayor, whether you're with LTG on his theory that keeping your emotions out of your judging is (a) impossible and (b) a bad thing anyway.

Is Sotomayor performing the impossible ?

Or is she just a bad judge ?

Or do you disagree with LTG ?

[Sarcastr0]

I’m busy today, so no sources, but I posit that society by and large does not want judge-bots – the human touch including the quality of mercy is part of the desired elements.

Though the evo-psych guy talking about how the law can be handled dispassionately checks out.

Rationalizing hard enough to THINK you’re above emotions is actually just giving them free reign.

I’m out and about today, but interested folks should check out affective neuroscience to see how integral emotions are to our being effective cognitive decision makers.

[Lee Moore]

No discretion for judges. Follow the damn law. Stay in your lane.

Any mercy is a matter for the executive with the commuting and the pardoning.

[Sarcastr0]

Discretion is baked into the law; it's a fundamental property of language that it will never be exact.
If you want to get deeper, it's a fundamental property of all logical systems that they will be incomplete.

...one good Kirk question and your whole judicial edifice collapses.

[LawTalkingGuy]

"No discretion for judges. Follow the damn law. Stay in your lane."

You know the law isn't actually set up like that right? That most of it involves discretion in some form or another? Discretion that courts routinely acknowledge exists.

[Lee Moore]

Of course "no discretion for judges" is an (impossible) aspiration. Judges should exercise what discretion the law properly permits them. But :

1. the law should limit that discretion as much a possible, as it is a necessary evil
2. judges should not grab more discretion than what the law properly permits, and should avoid interpretative schemes that expand their discretion at the expense of the text
3. when they exercise such discretion as the law allows, they should try as far as possible to keep their own emotions and policy preferences out of it

[NOVA Lawyer]

Lee Moore,

Let’s first remember that, in response to an OP about Sotomayor going to her chambers after a particularly tough day and shedding a tear, you said:

the sort of things that SCOTUS decides are hardly morally gutwrenching. If you find all this weepworthy, it betokens the lack of a sense of proportion. Which is not a good thing in a judge.

You later retreated to:

Their job is to carry out their responsibilities....They can indulge their human feelings when they get home.

Was it okay for her to weep in private or were you full of shit when you said she could “indulge [her] human feelings when” away from the job and in private? Or are you going to try to say there is a difference between weeping in private in her chambers or in private at home? If so, you're not remotely serious.

You’ve engaged in contradictory rhetoric and fuzzy thinking. No one is advocating that judges just lean into emotion and judge based on how they’re feeling that day. That’s a straw man.

To the extent you even have a coherent point, you seem to misunderstand that humans are not computers and law is not mathematics. It is an inherently human subject. That is why, as you later acknowledged, discretion is baked into many areas of law. Further, human logic and rationality is not, Spock and your fantasies aside, entirely separable from emotions.

As Sarcastro points out, you should maybe learn more about neuroscience and human psychology.

If you haven’t read “Thinking, Fast and Slow” by Daniel Kahneman, now’s a good time. If nothing else, it will teach you that the least of our worries should be a Justice who, after a tough day dealing with gut wrenching issues and difficult conversations with colleagues, goes to her chambers and weeps in private.

I also suggest you really re-read Sarcastro’s point, the best of this thread so far, and consider whether (given your contradictory statements above which show a distinctive lack of dispassionate analysis) it applies to you:

Rationalizing hard enough to THINK you’re above emotions is actually just giving them free reign.

[Lee Moore]

1. Judges do most of their stuff in their Chambers. It’s her place of work.

2. The NYT headline – I can’t get further obviously – speaks of her “frustration at being a liberal” on the court. This sounds much more like a small child being denied an ice cream than a mature woman weeping at the emotional trauma of the content of cases.

3. But if she’s genuinely turned into an emotional pretzel by the cases she hears going the wrong way, that suggests she has a neurotic personality – ie she is severely affected by negative emotion. That’s a good reason to seek another line of work. Or even retirement.

[Sarcastr0]

Judges do most of their stuff in their Chambers. It’s her place of work.

NOVA lawyer was making a public/private distinction. It's ridiculous for you to counter by arguing the appropriateness turns on the specific location and not something functional.

The NYT headline – I can’t get further obviously – speaks of her “frustration at being a liberal” on the court. This sounds much more like a small child being denied an ice cream than a mature woman weeping at the emotional trauma of the content of cases.
No, adults get frustrated too. What an overdetermined argument. If I didn't know better I'd say you were arguing based on emotions not rationality.

if she’s genuinely turned into an emotional pretzel by the cases she hears going the wrong way, that suggests she has a neurotic personality
There is a certain kind of asshole who thinks the calmest person in the argument is winning the argument.
I will not diagnose you with a neurotic personality or any of that pop-psychology rot. I will diagnose you with being that flavor of asshole.

Once again, pretending you don't have emotions is just a rout towards being utterly consumed by them and not realizing it.

[Frank Drackman]

Irreverent, Immaterial, and you're an asshole, and if you don't like those insults, I have others.

[LawTalkingGuy]

Its actually not. If you're going to make a blanket statement rejecting the idea of law not being emotional, its perfectly reasonable to ask if the person has actually been involved in the legal system up close.

[Stephen Lathrop]

Exactly. Docs and nurses deal with death and horrible injuries and diseases all the time. Soldiers too. Police too. Firemen too.

After such incidents happen, case-by-case, and are no longer preventable. The stresses suffered by first responders, of course, are somewhat countered by their roles to deliver amelioration, which they often get to do. And yet first responders very commonly report an emotional toll from much of what they encounter.

That stuff is not even slightly comparable to participating helplessly as actually corrupt colleagues endorse policies to encourage permanently the same kinds of things, but nationwide and thousands of times over. Worse, they do it motivated by little more than partisan malice, religious zealotry, or corrupt payoffs.

[mulched]

Why is Sotomayor so upset with KBJ's corruption?

[bernard11]

If hypotheticals about emergency abortions get the liberal justices that teary maybe they ought to recuse.

Big honking difference between "hypotheticals" and "likely future events.

Especially when the new Idaho law, if in effect for a few years in the past would have produced the consequences LTG mentions.

Suppose guns were completely banned in Idaho and domeone argued that a consequence would be that some people woiuld get killed/robbed etc. because they were unable to defend themselves. Would you regard that as a hypothetical not worth thinking or caring about?

And tell us, is getting "teary" the only form of emotional response you disapprove of?

[Sonja T]

LTG - you would have more credibility if you didnt mischaracterize the facts.

https://www.scotusblog.com/case-files/cases/idaho-v-united-states-2/

[bernard11]

I think you need to re-examine the "gut-wrenching" part of your comment, Lee.

LTG nails it pretty well, and besides, what is gut-wrenching for one person may not be for another.

It's not up to you or me to declare that someone else guts haven't been wrenched.

[Lee Moore]

No. but I can comment on how easily they are wrenched. And on whether the sensiviity of your guts makes you emotionally fitted to be a judge.

[Jason Cavanaugh]

Yes, you do have the ability to inform everyone here that you lack empathy and think your standards of emotional display are the only acceptable ones.

https://en.wikipedia.org/wiki/Psychopathy

[Lee Moore]

How original.

[LawTalkingGuy]

Oh. Do you get called this a lot? There might be a reason for that.

[Lee Moore]

No, but it's traditional for lefties to accuse their political opponents of psychiatric problems.

If you really want your guts wrenched, read The Gulag Archipelago, which is having its 50th anniversary this year, I believe.

[LawTalkingGuy]

Yeah, typically because a lot of right-wingers have obvious personality disorders and other psychological problems they don't want to confront.

[Jason Cavanaugh]

Haha.

Recognizing your lack of empathy does not require a specific political persuasion, and it's amusing that you immediately and incorrectly assume I'm a 'leftie' (it's actually "lefty" btw) because I called you out.

It is however, traditional for those on the right to assume that everyone who disagrees with them is a 'lefty.' Notably you fail to address the underlying criticism, which also seems to be pretty traditional for your ilk at this point.

[NOVA Lawyer]

Lee:

it’s traditional for lefties to accuse their political opponents of psychiatric problems

Also Lee:

suggests [Sotomayor] has a neurotic personality

You are the "lefty" asshole you’re worried about.

[Lee Moore]

A neurotic personality is not a psychiatric problem. It’s entirely normal. No weirder than being an extrovert.

It seems you know even less about psychology than LTG and Sarcastro – hard to believe, but apparently so.

[Sarcastr0]

'This thing I diagnosed over the Internet is not a pathology' you say, and then absolutely proceed to treat it like a disorder.

It's a certain sort of person who uses their own confidence as expertise so they can appeal to their own authority, and denigrate everyone who disagrees with their take.

It's like a fallacy turducken.

[Lee Moore]

I do apologise NOVA, it seems Sarcastro knows as little as you about psychology.

Personality traits are not disorders and they don't get "diagnosed."

[Sarcastr0]

You: "she has a neurotic personality – ie she is severely affected by negative emotion. That’s a good reason to seek another line of work. Or even retirement."

What you're doing is taking a pop-psych take on a 40 years out of date outmoded theory in order to from afar declare that a Supreme Court Justice is not well suited to her job.

Do not pretend to be an expert; everyone can see you're just another partisan asshole who likes to rationalize more than most, and who is not standing up well to scrutiny and resorting to name-calling.

[Lee Moore]

Well here's some folks doing some research on the suprisingly high heritability components of that

"40 years out of date outmoded theory"

only 10 years ago. Why would they be doing this research on what would have been by then a 30 years out of date outmoded theory ?

And here's a write up from 16 years ago :

https://scholar.google.com/scholar_lookup?&title=Empirical%20and%20theoretical%20status%20of%20the%20five-factor%20model%20of%20personality%20traits&pages=273-294&publication_year=2008&author=McCrae%2CRR&author=Costa%2CPT

Progress sometimes seems elusive in psychology, where old methods such as the Rorschach endure despite decades of criticism (Costa and McCrae, 2005), and where new research is often based on passing fads (Fiske and Leyens, 1997) rather than cumulative findings. It is remarkable, therefore, when clear progress is made, and there are few more dramatic examples than the rise to dominance of the Five-Factor Model (FFM) of personality traits in the past quarter century. Before that time, trait psychology had endured a Thirty Years’ War of competing trait models, with Guilford, Cattell, and Eysenck only the most illustrious of the combatants. The discovery of the FFM by Tupes and Christal (1961/1992) in the midst of that war was largely ignored, but its rediscovery 20 years later quickly led to a growing acceptance. Today it is the default model of personality structure, guiding not only personality psychologists, but increasingly, developmentalists

I think the diagnosis here is that you simply reject science that you disapprove of. You imagine the Big 5 Personality model has been debunked long ago, when it is still going strong. It's going strong because it continues to describe personality better than any other models.

And you imagine evolutionary psychologists perform no experiments because you would prefer to handwave it away as you don't like the idea that evolution affects all organs, not just those below the neck.

You're a policy based evidence kinda guy. You should work harder on trying to abstract your emotions from your rational moments.

[bernard11]

but I can comment on how easily they are wrenched. And on whether the sensiviity of your guts makes you emotionally fitted to be a judge.

Well, you can. So can my grade school nephew. But why should anyone take your comment seriously?

You haven't interviewed Sotomayor, or any of the others AFAIK. You have no idea how often various people's guts are wrenched, or by what. Any judgments you form are based on nothing but your own preconceived notions of what is valid and what isn't, what manifestations are acceptable (crying - clearly not. Stomping around the house cursing? Others?)

You really haven't thought this one through at all.

[NOVA Lawyer]

You really haven’t thought this one through at all.

Bingo.

His comments are emotion based, not rational. He dislikes "lefties" and Sotomayor, so he just leans into his negative emotions to get to negative interpretations, all while contradicting himself. He has done a great job of demonstrating that, if all you do is lean into your emotional response, you'll be unable to make coherent, reasoned arguments.

[Rev. Arthur L. Kirkland]

.

the sort of things that SCOTUS decides are hardly morally gutwrenching.

You are a low-quality person, Lee Moore. I hope you get better and I will welcome your replacement.

[Frank Drackman]

Like we welcomed your imprisonment

[Michael P]

She's not saying the law is that emotional, she's saying that judges/justices get emotional over the cases that go against their convictions or beliefs or whatever you might wish to call it.

[bernard11]

Don't be a moron, Kaz.

The decision makes her unhappy and so she reacts. BFD.

And do you honestly believe that other justices don't react emotionally to decisions they strongly disagree with?

Maybe some are manly men, so they don't cry. Instead they go and curse angrily or kick (or shoot) their dog. But that's OK with you, I'm guessing.

When Gianforte slammed a reporter to the floor (and lied about it later, BTW) as an emotional reaction to a question - not even a court decision - he didn't like, nobody on the right had shit to say in criticism. Trump even praised him.

So fuck off. You are putting on a disgusting and dishonest display of sexism and blind RW partisanship.

[Rev. Arthur L. Kirkland]

Kazinski is an antisocial, socially inept, right-wing misfit holed up in his off-the-grid hermit shack with his mail order bride, idolizing Ted Kaczynski and ranting about how he can't stand all of this damned progress and modernity.

That's the Volokh Conspiracy's core target audience, come to think of it.

[LawTalkingGuy]

"The law shouldn’t be that emotional."

Tell that to clients, victims, witnesses, etc. It's a very emotional field. Good lawyers and judges can't let their emotions overwhelm them, but if they think they shouldn't have them at all or suppress them too much they won't be able to do their job correctly. You're dealing with humans, after all.

[Lee Moore]

Hmm. How does not suppressing your emotions as best you can, as a judge in a murder trial, help you do a good and fair judging job ?

On average, you're liable to suspect the accused is guilty (on average the accused is ultimately convicted. ) And the victim is dead. Sometimes arriving in that condition by horrible means. Assuming you're an empathetic sort of person, isn't it almost certain that 99.97% of your available empathy is going to be working on the side of the victim and the victim's family, leaving only 0.03% for the accused ?

That doesn't look like a very promising position from which to protect the accused's right to a fair trial, and the presumption of his innocence.

I should have thought that the accused would be wise to pray for a judge who's good at suppressing emotions and empathy.

[LawTalkingGuy]

"Assuming you’re an empathetic sort of person, isn’t it almost certain that 99.97% of your available empathy is going to be working on the side of the victim and the victim’s family, leaving only 0.03% for the accused ?"

No? What. Humans aren't robots. Why do you think they are?

[Lee Moore]

The sort of humans in my family and social circle tend to have more fellow feeling with murder victims and their families than with murderers.

Maybe we move in different circles.

[LawTalkingGuy]

Yeah but you're attaching weird percentages to things like humans are robots. Its actually possible to have conflicting empathies and emotional responses to situations. You can simultaneously be:

Upset and sad for the victim, angry at the perpetrator, sympathetic to them in a small way because of their circumstances (in sentencing we call this mitigation), sympathetic to abstract principles about rights, frustrated with lawyers and investigators about how they handled the case, etc. etc. etc. And no they don't break up into percentages, because that's just not a thing.

Seriously, meet some judges or some humans, man.

[Lee Moore]

I’ve met plenty of judges – Mrs Moore is a member of a club full of lawyers, to whose functions I am sometimes required to go. It’s thick with judges and retired judges.

And although some of the lawyers are OK, I can echo Stephen Maturin’s immortal line – I’ve never met a judge I liked.

PS "Yeah but you’re attaching weird percentages to things like humans are robots" - you think these percentages are real statistics ? I started off thinking you were pretending to be stupid, but now I'm not so sure.

[LawTalkingGuy]

The reason you don't like them is because you have a wildly unrealistic expectation of them that is completely at odds with the human experience.

[Lee Moore]

No, I just tend to find them rather smug and pleased with themselves. Of course plenty of non judges have those qualities, but as people I'd like to see again, so far they're batting 0 in about 25 at bats.

[LawTalkingGuy]

"If you run into an asshole in the morning, you ran into an asshole. If you run into assholes all day, you're the asshole."

[Lee Moore]

I have a sunny disposition and I rarely run into assholes.

Except at Mrs Moore's club, which I try to avoid as much as possible.

[Rev. Arthur L. Kirkland]

.

I’ve never met a judge I liked.

If you meet one, or two, or three judges who are assholes, maybe you just happened to encounter a few assholes.

But if every judge you meet is unlikeable . . .you're the asshole. An antisocial, obsolete, bigoted asshole, perhaps.

Which brings you to the Volokh Conspiracy . . .

[Stephen Lathrop]

I should have thought that the accused would be wise to pray for a judge who’s good at suppressing emotions and empathy.

Lee Moore, consider Aristotle’s, Logos, Ethos, Pathos. You will often find those described as means of persuasion. That is but a loose understanding. A more insightful interpretation recognizes those as complementary means necessary for demonstration.

Thus, if you insist in a venue given over to demonstration, such as a courtroom, to exclude ethos and pathos, and to rely instead solely on logos, injustice will surely result.

For instance, in a medical malpractice case, absent reliance on ethos the testimony of an unlettered child would be judged as acceptable as that of a medical doctor. In a capital criminal case, absent reliance on pathos a person without capacity to assist in his own defense would be sentenced to death.

Also with regard to pathos, to exclude that from a courtroom as illegitimate would deprive finders of fact of a tool necessary to weigh the testimony of a sociopath against testimony of others not subject to that impairment. Logos alone contributes little to any such distinction, and might even be misconstrued—as you seem to advocate—to be especially persuasive.

To demonstrate truth, all three aspects of Aristotle’s trilogy must be understood as complementary, not in conflict. Each must receive proper consideration.

[Sarcastr0]

The law shouldn’t be that emotional.
You've never been in criminal court.

[LawTalkingGuy]

Or civil. Hell, even transactions/negotiations can be fucking emotional!

[Rev. Arthur L. Kirkland]

.

The law shouldn’t be that emotional.

You didn't take that position when Justice Thomas was whining about how much it hurt his feelings to have people point out his ethical failures or his wife's un-American activities, or when the Alitos were whimpering about how they became so distraught they hoisted a distress signal atop their flagpole. More than once.

Carry on, clingers.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

If she wanted privacy, it was hers until she broadcast it.

How like a statist of you to blame everybody else.

[Nige]

It's just like you guys to blame anybody but yourselves for your own reactions.

[Jerry B.]

Now apply that to Mrs. Alito.

[Nige]

Sotomayor should have flown a flag uspide down to signal her distress?

[Don Nico]

Bernard,
"Not everything ought to be turned into a political cudgel, or be an occasion for some nasty gloating."
That is all that needs be said. Unfortunately that lesson has been broadly "unlearned."

[LawTalkingGuy]

"Conservatives will savor the sweet taste of liberal tears"

Yes they tend to have a sadistic streak don't they?

[Rev. Arthur L. Kirkland]

Have some pity for people who are getting the bigoted shit kicked out of them by their betters in the culture war. All they have to look forward to are (1) complying with the preferences of people they dislike and (2) replacement.

Carry on, clingers.

[FivebySixThree]

When a Judge is this emotional by being on the losing side of a Judicial panel it usually pretty much indicates they are no longer making rulings based on law.

[hobie]

You might want to do yourself a favor and not read the hyperbole in the Court's dissenting opinions. You'd then have a dim view of every justice's abilities

[Dr. Ed 2]

She never was, and I thought she'd implode before now...

[bernard11]

Oh shut up, you idiot.

We know about this reaction because she told us.

What do you imagine - that other judges, including SCOTUS Justices, don't react emotionally to some decisions they disagree with? Or are some emotional reactions justified while others are not?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

First you say

respect her emotions and privacy

as if to blame the public for listening to what she said.

Then you say

We know about this reaction because she told us.

Do you have any point other than to confuse yourself?

[bernard11]

Do you have a brain?

We're not talking about whether the public is at a fault for listening to her.

We are talking about the pathologically nasty reaction of the right to what she said, or what they imagine she said, because many of them, like you, have pathetically poor reading skills to go along with very limited intelligence.

[Bwaaah]

Strangely, those contradictions flow mellifluously, as if harmoniously consistent. I believe there is an internal “logic” operating there that escapes the brains of freakish people, like non-progressive thinkers.

I feel dirty just thinking about her during this very intimate moment.

[LawTalkingGuy]

You wouldn't be upset if you were right on the law but the majority was doing something else that was obviously wrong?

[JesusHadBlondeHairBlueEyes]

Too bad that case doesn't apply here.

[Sonja T]

LTG - that fact rarely applies to Sotomayor, if ever.

[Sarcastr0]

He's asking a subjective question, not about the Objective Rightness of the Law you no doubt have the inside track on.

[Sarcastr0]

Pretty much not seeing the connection you’re pretty much making here.

Being emotional about the law as you see it being stymied isn't pretty much a sign you're not following the law.

[hobie]

I'm not a fan of justices wearing their hearts on their sleeves like Sotomayor and Alito. In general, justices have kept their yaps shut in public until Scalia started broadcasting his views all over the place. To his credit, Thomas has kept silent (both in court and in life) all these years. But his profligrate graft has left a paper trail a mile wide...much to my amusement

[Jonathansingletary]

Antonin Scalia was the absolute (Drama) Queen of judicial histrionics.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ginsburg gets a pass.

[Frank Drackman]

well she was known as Notorious

[Bwaaah]

But only to convey the towering masculine fearsomeness of a 50 pound, 90-year-old liberal.

But I don't remember RBG showing off her fragility, as Sotomayor did here. Maybe RBG was an insensitive person?

I cry whenever NigeCastr0 conveys their appreciation for non-progressive ideas.

[hobie]

She doesn't get a pass, as far as I'm concerned. She was wrong.

[Jonathansingletary]

She doesn’t get a pass, she was just way behind in the running for the title. Scalia beat her in hyperbole, emotional outbursts, and tantrums disguised as dissents.

[loki13]

I can appreciate the frustration. There are certainly a few cases where I've thought that it must be insanely difficult to maintain the needed comity on the Court, given the opinion.

That said, I wish Justice Sotomayor hadn't said this. Not because it isn't true, but because the usual suspects will just use it as a cudgel.

She isn't my favorite justice, but I think she provides a useful perspective on many of the cases that is otherwise lost.

[bernard11]

I wish Justice Sotomayor hadn’t said this. Not because it isn’t true, but because the usual suspects will just use it as a cudgel.

But that bears some resemblance to a heckler's veto.

Maybe, in our current political situation, you are right. But that's only because we have an angry mob of idiots in this country, following a cult leader, who are ready to distort anything into some sort of weapon against their perceived enemies.

[Bwaaah]

“But that bears some resemblance to a heckler’s veto.”

None. She said it. Nobody even tried to stop her. That’s just your version of, “I know we do but you do too.”

[Sarcastr0]

Think this through more.

The issue is with the fact that it’d have been better if she didn’t say it due to the surfeit of idiots with more partisanship than emotional intelligence jumping on it.

It would have been better; but that’s on the idiots, not her. Same logic as heckler's veto.

[ObviouslyNotSpam]

If she's not up to the job, she should resign. And quickly...

[Frank Drackman]

So she's crying about the millions of babies that will be born since Dobbs?

[hobie]

Ain't you supposed to be Jewish? Ensoulment for you only occurs at birth or first breath. Its the goyim that can't make up their minds on it

[LawTalkingGuy]

You know that abortions and permanent methods of contraception have gone up since Dobbs right? Along with an attendant risk to women's health and future fertility.

[Frank Drackman]

I don't know that, probably because you pulled it out of your anal glands, you should stick to something you're already mediocre at.

Frank

[Magister]

You know that abortions and permanent methods of contraception have gone up since Dobbs right? Along with an attendant risk to women’s health and future fertility.

I don’t know that

Permanent Contraception Procedures Surge Among Young Adults After Dobbs Decision

Effects of Dobbs on maternal health care overwhelmingly negative, survey shows

I keep hearing from conservatives, even around here, that the increased number of abortions shows that Dobbs did nothing.

[loki13]

I realized that I hadn't ranked the Justices in some time. Let's see.

1. Kagan.
2. Roberts.
(big break)
3. This is tough ... but I have to say ... Jackson.
4. Barrett.
5. Gorsuch.
6. Sotomayor.
7. Thomas.
8. Kavanaugh.
(massive break)
9. Alito.

It's actually hard right now. I think that overall, Kagan and Roberts are the best in terms of legal reasoning and writing, and tend to be minimalist (which I appreciate).

3-8 is hard, and I can see re-ordering them. Each has strengths and weaknesses. I've been more than pleasantly surprised by Jackson so far, but that's a very small sample size. Same with Barrett, even though I disagree with her on a lot.

But Alito has been terrible for a long time. I first noticed it in his dissent in U.S. v. Stevens, and then the similar dissent in Snyder v. Phelps. He judges based on his personal feels and wants, not on any fixed principles. Moreover, his increased use of grievance-based judging is notable. It's at the point where it's difficult to discern a jurisprudential philosophy, other than grievance-based deference to his preferred authorities.

[hobie]

Have to agree about Kagan and Roberts. They often vote both sides of ideology, base their decisions on the law and ask tough but fair questions. I'd put Kavanaugh last. He's hysterical, immature and outright lied to the Senators of his own party during confirmation

[loki13]

I have previously discussed my thoughts on Kavanaugh, and why I think that his outburst during the confirmation should have precluded him from being put on SCOTUS. That goes to judicial temperament. It doesn't matter if you are being attacked; even if it is unfair, or you believe that they are lies, a judge doesn't do that. Period.

That said, as a Justice, he's merely mediocre to bad. Alito, on the other hand, is a special type of terrible; not only has he always been a bad and results-oriented Justice, but he's entered that phase of "sour jurisprudence" that happens to a lot of Justices on SCOTUS, which exacerbates the worst tendencies.

Since his tendencies were already so bad to begin with, it's hard to see how it could be worse, yet here we are.

(As for Thomas, I think that his radical approach is actually the worst approach to the law, as it truly ignores the common law system and allows Thomas to simply decide that he is right, and everyone else is, and has been, wrong, when he chooses to. However, I will credit him for being ... somewhat ... consistent in his application. Which is much more than you can say about Alito. I don't like Thomas's jurisprudence, but I can at least respect some of his decisions; I can't say the same about Alito.)

[TwelveInchPianist]

"That goes to judicial temperament. It doesn’t matter if you are being attacked; even if it is unfair, or you believe that they are lies, a judge doesn’t do that. Period."

A judge doesn't do that on the bench. What a judge does off the bench when being falsely accused of rape is a different matter.

He had had 12 years as a circuit court judge where his judicial temperament was not an issue.

And he has been a SCOTUS judge for six years without his temperament being an issue, so it would appear that concerns about his judicial temperament arising from the rape smear would be misplaced.

[bernard11]

What a judge does off the bench when being falsely accused of rape is a different matter.

Your comment takes "falsely" as a given. I don't. I mean, there could have been soem further investigation, but Grassley conveniently quashed that possibility.

Besides, Sotomayor's crying was also off the bench, after the case.

[TwelveInchPianist]

"Your comment takes “falsely” as a given."

Sure. If the accusations are true his temperament is irrelevant.

"Besides, Sotomayor’s crying was also off the bench, after the case."

Yup. And I don't think it reflects on her judicial temperament either.

[David Nieporent]

Whatever one thinks of Kavanaugh during the hearings, I don't think ought to have anything to do with one's evaluation of him as a justice. He's a pragmatist, which is annoying for someone like me who likes formalism, but it also means he's a lot less scary than an Alito, who's a rabid ideologue, or Thomas, who is happy to set the entire U.S. Reports on fire based on whatever shiny object caught his eye at any particular moment. It's one thing to do that in the faculty lounge at South Texas College of Law or in the pages of a law review, but it's at best useless, and at worst harmful, to keep spewing these concurrences about how maybe every judicial decision since 1950 — statutory or constitutional — was wrong. (His concurrence this week in Alexander v. South Carolina State Conference of the NAACP was particularly terribad. He announced that the equal protection clause doesn't actually forbid discrimination — something that did not seem to occur to him, e.g., in the SFFA case.)

[loki13]

It is very hard for me to disentangle the outburst with the jurisprudence, and I may be a little harsh in the rankings because of that.

I agree with you about Thomas, but try to give him a small bit of credit (more than Alito) for at least attempting to be consistent, albeit consistent in a manner I think is crazy, and that often will ignore other issues on which he could focus that same rabid consistency.

[loki13]

That said, I'd be curious to see how you rank them DMN.

[Estragon]

1) kagan

BIG GAP

2) everyone else

3) alito

Gorsuch is flirting with 3 after the CFPB concurrence. All credit for that Indian law opinion is now void and expired.

[David Nieporent]

My rankings change day-by-day decision-by-decision. So at the moment I'd say this, but it could be different tomorrow, except I'm pretty sure Alito stays at the bottom:

1. Roberts
2. Kagan
3. Gorsuch
4. Barrett
5. Jackson
6. Kavanaugh
7. Thomas
8. Sotomayor
9. Alito

[Estragon]

1. Roberts

Shelby County

[David Nieporent]

I can name at least opinion from every justice that I think is lousy. Kagan gave us, "It doesn't matter if a drug sniffing dog doesn't get things right in the field as long as it got a certificate from drug sniffing dog training school," for instance.

[Estragon]

You think drug dog BS is on the level of Shelby? Searches that were going to take place incident to arrest anyways? Jesus take the wheel.

[Estragon]

I’m not sure I’ve seen a more perfect example of elite lawyer bothsideism BS since I’ve been on here, lo these many years.

[Sarcastr0]

While I agree with you, I'm not going to say that someone who foregrounds our broken 4A jurisprudence is incorrect. Everyone's got their thing.

I do think Kagan's a bit easier to read than Roberts myself. I like legal history, but not quite as much as the Chief, it seems.

[David Nieporent]

I do think Kagan’s a bit easier to read than Roberts myself. I like legal history, but not quite as much as the Chief, it seems.

Kagan is an excellent writer, but she tries too hard to be folksy sometimes, for my tastes. It's purely a stylistic thing.

[Estragon]

And for the record, I think the dog stuff is bullshit on stilts

[loki13]

Your rankings are similar to mine, and while I think we could quibble about the exact placement of 3-8, I can't disagree that strongly.

I do think Gorsuch's writing is like his consistency- it's either good, or you have to ask yourself whiskey tango foxtrot.

Like you, I've been pleasantly surprised by both Barrett and Jackson so far (even when I've disagreed with them). In particular, I admire Barrett's concentration on procedure (which reminds me, albeit in a very different direction, of RBG) and Jackson's opinions and thorough research on subjects.

[Estragon]

I like beer. I LIKE BEER!

— Boof O’kavanaugh

Whatever happened with the season tickets debt anyways?

[Bruce Hayden]

The party where the accuser didn’t remember or have record of the date or address, and had no reason to be at a party with him? They went to different schools, ran in different crowds, and were a couple years apart in age. And, yet, you accuse him of being the liar…

[JesusHadBlondeHairBlueEyes]

Listen, when a Democrat accuses a conservative of something we always presume the accusations are factual and true.

When a conservative accuses a Democrat of something, well that's because conservatives are immoral, unethical, and downright bigoted.

[Nige]

Listen, when a Democrat accuses a conservative of something you have to assume she is a secret Deep State trained sleeper operative who has been activated solely to destroy the life of the conservative. That's why it's okay to send her rape threats.

[hobie]

We're talking about two different things, Bruce. Murkowsky and Collins have flat out admitted they would not have voted for Kananaugh had he not promised them in chambers that Roe was settled law. They both said they were betrayed by him. I assume Ford was under oath. If she perjured herself, you best get cracking on that, Bruce. The nation awaits your findings

[TwelveInchPianist]

That's not a lie. Roe was settled law. Now Dobbs is settled law.

[hobie]

Is that how these things work?

[Scooter]

It worked for Dred Scott and Plessy v Ferguson.

[Stephen Lathrop]

That’s not a lie. Roe was settled law. Now Dobbs is settled law.

That’s too unsettling. False, too.

[Sarcastr0]

That’s not a lie.

Too cute by far. That response was deceiving both Senators.(assuming all went down as they said.)

[Jonathansingletary]

This response lacks any character or integrity.

[David Nieporent]

Murkowsky and Collins have flat out admitted they would not have voted for Kananaugh had he not promised them in chambers that Roe was settled law. They both said they were betrayed by him

To believe that, you have to believe that two long-time senators (a) don't know what the phrase "settled law" means (and doesn't mean); (b) don't know that judges cannot ethically promise to rule a certain way; and (c) are gullible morons.

Of course, Susan Collins said that she thought Trump had learned his lesson after his first impeachment, so "gullible moron" may actually apply to her.

[hobie]

"(b) don’t know that judges cannot ethically promise to rule a certain way"

That's a good point. But I don't believe they asked that of him

[bernard11]

judges cannot ethically promise to rule a certain way

Yet they do (or potential SCOTUS nominees do) all the time. I think only lawyers could believe otherwise.

What I mean is this. I understand that, having been nominated, they can't come out in public and say, "Roe is a terrible decision, and I will certainly do what I can to overturn if I end up on the court."

But so what? These people have decades-long records, as judges, lawyers, whatever, even as politicians. They have expressed their positions over those decades, and are likely pushed, in private, to be as explicit as they dare when they come under consideration for SCOTUS.

And even if they are cautious and careful then they typically have that long record behind them. Suppose a teacher of constitutional law has published a number of articles saying Roe was wrong, and providing arguments. Does it matter that they don't issue a public statement when nominated? Is that good enough?

What if they are nominated, after some careful vetting, by a President who has explicitly, repeatedly, vowed to nominate only judges who will vote to overturn Roe? Would that matter?

To me, they have effectively promised, and that promise is a prerequisite to being nominated.

[David Nieporent]

There is a big difference between having ruled a certain way in the past — or arguing that a particular decision was right or wrong — and promising (especially, but not exclusively, under oath) that one will rule a certain way on a future case.

[bernard11]

I think it's a distinction with very little difference. Our nominee, let's call him Josh, just for fun, has spent his career saying he would overturn Roe given the chance. His commitment to do that is maybe a smidge weaker than if he promised under oath (or maybe not even a smidge.)

And let's remember that Josh's vetting likely included an interview with people from a private, highly conservative organization, which then recommended him strongly. Josh has also spoken, privately with several strongly anti-abortion Senators who support him vigorously.

Now, even if he never promised under oath to vote to overturn, it sure looks like he came as close as he could short of that.

I’m not saying he did anything wrong. Those are his known often-expressed views. But to argue that he has not “promised” is to draw an awfully fine line around what it means to promise here.

Suppose I said, repeatedly and publicly, that I would do something if I got the chance, and then I got an appointment, partly on the basis of those statements, which would very likely give me the chance.

I've made a commitment, and been given something I wanted - the appointment - on the understanding I would follow through. Looks a good bit like a promise to me.

[bernard11]

Sorry about the length. I ran two drafts together and then mysteriously it got submitted with no further ability to edit.

So the comment is a bit garbled, but the last two paragraphs are the gist.

[Sarcastr0]

I tend to agree with DMN that this looks more like Senatorial ass-covering than anything else.

But the 'technically it wasn't a lie' set are still showing their ass.

[TwelveInchPianist]

It wasn't a lie. As DMN said, the Senators "know what the phrase “settled law” means (and doesn’t mean); "

It means it's settled by stare decisis, not that it can't be overturned.

It wasn't a lie when Sotomayor said Heller was settled and then voted to overturn it, and this wasn't a lie either.

[Sarcastr0]

No one would actually be using language in such a useless way.

Rationalizing dishonesty with formalism is still rationalizing dishonesty.

Says bad things about your integrity.

[TwelveInchPianist]

Oh come on. Kavanaugh explained to the Senate exactly what he meant:

Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors. That was the question presented in the case.

He never said settled law couldn't be overturned. And when asked by Lindsey Graham whether he would listen to arguments about precedent being revisited, he said, "Precedent's critically important, it's a foundation of our system, but you listen to all arguments."

So at this point you're just gaslighting.

[Sarcastr0]

Again, your construction requires the question to have been utterly meaningless.

It makes no sense.

I believe the Senators were just making political hay with their consternation at Dobbs - abortion was not a priority but they'll throw Kavanaugh under the buss to seem otherwise.

You believe the Senators are morons, and Kavanaugh cleverly outflanked them by disingenuously deploying legal jargon. How can you think this is a good thing?

[TwelveInchPianist]

"I believe the Senators were just making political hay with their consternation at Dobbs – abortion was not a priority but they’ll throw Kavanaugh under the buss to seem otherwise."

How is that Kavanaugh's problem?

Again, Kavanaugh correctly said that Roe was settled law, and explained what he meant by that. How, exactly, do you think he was being dishonest?

"You believe the Senators are morons, and Kavanaugh cleverly outflanked them by disingenuously deploying legal jargon."

You're lying again. I said exactly the opposite.

[ObviouslyNotSpam]

Obviously, they asked him a stupid question (if, indeed, they asked him).

What they should have asked him was, "did you make any promises to President Trump?"

[Don Nico]

"If she perjured herself, you best get cracking on that"
She demonstrably perjured herself twice:
1) her fear of flying claim was showed to be dishonest during her testimony.
2) Her claim about "two front-doors" was directly contradicted by local government records..
Neither D's nor R's thought it was worth pursuing those lies as perjury.

[bernard11]

Maybe a little further investigation, of this or other alleged incidents of Kavanaugh's misconduct, would have helped. But We can't have that, can we?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

All the investigatory power that went into hiding Hunter's laptop, the truth about Russian interference, and the truth about COVID, and they couldn't get anything more on Kavanaugh than something may have happened at some unknown time and place?

Yah right.

[Nige]

Hunter's laptop was hidden? We didn't get the truth about Russian interference? What truth about covid? You're just slotting Kavanaugh in with perennial right-wing grievances that have nothing to do with what happened and everything to do with joining in on some chants.

[bernard11]

Oh look. A squirrel.

And BTW, there was almost no investigative effort put into checking out Kavanaugh. Grassley put about a 30-second time limit on the "investigation," and put lots of relevant things out of bounds.

If you are looking for "hidden evidence" that's where to look, not in your ass for more manufactured lies about the laptop.

[David Nieporent]

There was obviously no forensic evidence decades later, and everyone who was potentially a witness was interviewed (and said they didn't know anything about it). What other investigation do you think could've been done?

[bernard11]

David,

What other investigation do you think could’ve been done?

One not totally controlled by the White House, with a bit of help from Grassley.

One where all tips aren't routed to the White House, which then tells the FBI which tips it is allowed to investigate.

[damikesc]

"And BTW, there was almost no investigative effort put into checking out Kavanaugh. "

Provided one ignores the MULTIPLE background checks he had already passed during his career.

But "I think he did something bad at some point somewhere at some point in history" followed by naming people who'd verify her story (and then they did the exact opposite actually) is difficult to investigate.

[ThePublius]

"And BTW, there was almost no investigative effort put into checking out Kavanaugh."

Wasn't there an FBI investigation?

[Sarcastr0]

The FBI collected a bunch of tips and did nothing with them. Including some who claimed to witness similar events.

The FBI claimed lack of authority.

I would not call that an investigation.

[TwelveInchPianist]

They're supposed to follow up on tips from every nut-job who contacted them during a high-profile hearing?

[Sarcastr0]

Nice excluded middle, you disingenuous twit.

[TwelveInchPianist]

Using terms you don’t understand again, dumbass?

[Sarcastr0]

There is a middle between 'follow up on no tips' and 'follow up on tips from every nut-job who contacted them.'

You pretend otherwise with your disingenuous reply. And then you pretend you didn't do that in your second disingenuous reply.

Suck less, TiP.

[Noscitur a sociis]

Can you give some idea of what would have looked different between the investigation that would have satisfied you and what actually happened?

[TwelveInchPianist]

“There is a middle between ‘follow up on no tips’ and ‘follow up on tips from every nut-job who contacted them.’”

And if you had claimed that they followed up on no tips, there would have been an excluded middle. Your claim would also have been a lie.

But that wasn’t your claim.

You should suck less, lie less, and be less of an asshole.

[Sarcastr0]

Can you give some idea of what would have looked different between the investigation that would have satisfied you and what actually happened?

I'm no expert, I just know pretext when I see it.

But I can always make something up.

1. At least some of the tips were not made anonymously. Follow up on the tips that are promising - interview the tippers and see if they might have some corroborating evidence like timelines or even some item. Maybe multiple tips agree and seem to be independent.

If nothing is promising, document reaching that conclusion.

2. If some of your investigations warrant following up (and if they do not, document your justification for that as well), follow up.
Interview folks who might have seen whatever the tip was about at the time.

3. If patterns emerge, that is itself useful information.

[Sarcastr0]

Me: "The FBI collected a bunch of tips and did nothing with them. "

You: "And if you had claimed that they followed up on no tips..."

I don't know what you're trying, TiP, but you look a lot like you're just trying to conversational equivalent of pocket sand.

[TwelveInchPianist]

"Me: 'The FBI collected a bunch of tips and did nothing with them.'

You: 'And if you had claimed that they followed up on no tips…'"

You get that those aren't the same thing, right?

As I said, if you were claiming that that was an exhaustive description of the investigation, you're full of it.

And if there's the middle you suggest, you still get left with "The FBI collect[ing] a bunch of tips and d[oing[ nothing with them," which is what you were complaining about.

NPR confirmed that they interviewed at least six people as part of the investigation, so they followed up on some tips.

The Dems were complaining that the FBI didn't wade through all of the bullshit on their general tip line, beyond forwarding Kavanaugh
related tips to the White House.

[TwelveInchPianist]

"I just know pretext when I see it.

But I can always make something up."

Sounds about right.

[Sarcastr0]

No, TiP, doing nothing with all the tips is not the same as doing nothing with some of the tips.

Are you truly arguing that the investigation wasn't pretextual? The FBI itself said as much, though they blamed it on a lack of authority.
https://www.whitehouse.senate.gov/wp-content/uploads/imo/media/doc/20210630%20FBI%20Response%20to%20Sen%20Whitehouse%20Sen%20Coons.pdf

[TwelveInchPianist]

And they did something with some tips. They interviewed several people. Are you seriously claiming that that wasn't an investigation?

And talking about getting your information from partisan sources!

[Absaroka]

Sarcastro: jut to make sure I understand your position, it is that:

A)some number of people sent in valid tips about misconduct by Kavanaugh (after the BI was completed)
B)the White House went through those tips and only had the FBI follow up on a (presumably innocuous) subset
C)the people who cared enough to send in their perfectly valid tips about misconduct waited and waited for the FBI to get back to them, then finally decided to just forget about it all, as opposed to contacting the media or whatever

Is that a fair summary?

[Sarcastr0]

the White House went through those tips and only had the FBI follow up on a (presumably innocuous) subset

There is no evidence the WH went through none of the tips. And considering who the Admin was, that is not surprising.

We knew this (and thus asked the FBI about it) because at least some of the tipsters did go to the press, but it was folded into the usual partisan outrage at the time.

[Absaroka]

“There is no evidence the WH went through none of the tips. And considering who the Admin was, that is not surprising.”

I assume you mean ‘went through any’. My sense that the WH asked for followup on a subset was from the FBI letter you linked, specifically the quote below. Do you feel the FBI is in error, or did you miss that part of the letter?

“On September 13,2018, the FBI was asked by the Office of White House Counsel to conduct supplemental background investigations, specifically, limited inquiries. A limited inquiry is conducted to resolve a specific issue arising during or after completion of a BI. The requesting entity sets the parameters of a limited inquiry, which may include interviewees and topics to address. Over the course of six days, as part of several limited inquiries, the FBI interviewed ten individuals (not part of the 49 persons interviewed during the BI).”

“at least some of the tipsters did go to the press, but it was folded into the usual partisan outrage, …”

Interesting. I would have expected, for example, the NYT, WaPo, etc to follow up on such tips rather than bury them. Would you happen to recall the name or details for what you consider the most damning accusation that NYT/WaPO etc. dropped the ball on?

[TwelveInchPianist]

"Wasn’t there an FBI investigation?"

There was an FBI background check. IIUC no authority conducted a criminal investigation because there was no prosecutable crime.

[ThePublius]

I believe there was an FBI investigation precipitated by the accusations CBF made during the hearings. He had been subjected to background checks before that.

[TwelveInchPianist]

"Maybe a little further investigation, of this or other alleged incidents of Kavanaugh’s misconduct, would have helped. But We can’t have that, can we?"

They had 20 years to investigate.

[Lee Moore]

1. Thomas
2. Gorsuch
7. Barrett
8. Kavanaugh
11. Jackson
19= Sotomayor, Alito
23. Kagan.
25. Roberts

A slightly different order. The first two are miles ahead because they do not start with their conclusion and work back to a justifiction, but attempt an actual analysis starting wth the text.

The second two would like to be doing what the first two do, but are always looking over their shoulder for approval from the crowd, and diving into a procedural escape tunnel if the crowd looks ugly.

I put Jackson at 5 because she does seem willing occasionally to work forwards from the text rather than backwards from the result. So an occasional judge.

The other four are basically politicians worthy of more or less equal amounts of contempt. I put Sotomayor and Alito equal as equally biuff uncomplicated “my team wins” types.

I put Kagan next as a sly politician. And Roberts bottom as a sly politician who has the responsibility of being the leader of this dismal crew, a responsibility which his cowardice makes him unfit for.

I agree Kagan and Roberts are the best writers, but that is irrelevant in the rating. The job is not part of the entertainment business.

[Stephen Lathrop]

The first two are miles ahead because they do not start with their conclusion and work back to a justifiction, but attempt an actual analysis starting with the text.

One of the least insightful comments I have ever seen on this blog.

[loki13]

Lee,

I think it is helpful for someone to look at their own ranking and ask, “Did I mostly just rank the Justices by my partisan agreement, maybe penalizing one or two because they aren’t sufficiently loyal to the cause?”

I fully admit that my own biases influenced my rankings, but I try my best to focus on the legal acumen of the rulings, the ability to have a clear rule from the opinion, and the clarity of the writing in the opinion. I think that having three of the top five Justices as conservative is evidence of that. And I am open to moving Jackson down as I see more of her opinions; to date, I have been pleasantly surprised.

I also think that people don’t actually realize that Justice Thomas is only consistent about a subset of cases; that’s why I say he is somewhat consistent. I do agree that he is consistent in those, but he applies that consistency selectively.

(Finally, I would say that for me, Sotomayor and Thomas could easily switch places and that my placement of them is likely influenced by own personal opinion- they are both bad and great, but in decidedly different ways.)

[Sarcastr0]

I haven't followed him closely in about 15 years, so since law school. But Thomas’ statutory opinions are the tops; clear, generally correct, apolitical.
Be may be the smartest at black letter law on the Court.

I’d put Thomas above Sotomayor despite his derangement even among conservative jurisprudence for that reason.

[Stephen Lathrop]

I guess Sotomayor has good reason to cry. Sarcastr0 just ranked the most corrupt justice in Supreme Court history ahead of her.

[loki13]

I don't disagree, and if SCOTUS only handled ERISA cases, I'd probably rank him near the top.

Unfortunately, that is not the case.

[Lee Moore]

I think it is helpful for someone to look at their own ranking and ask, “Did I mostly just rank the Justices by my partisan agreement, maybe penalizing one or two because they aren’t sufficiently loyal to the cause?”

Of course, but there’s a separate issue that I sometimes argue with Sarcastro about and that is judicial philosophy. To avoid too long a diatribe, I’ll just summarise by saying that my preferred judicial philosophy involves trying to avoid judicial discretion as far as possible. Hence textualism beats purposivism and living constitutionalism 43-0. That is quite independent of political philosophy. ie a SCOTUS composed of Alito clones would probably arrive at my preferred political result more often than a SCOTUS of Thomas clones, but would offend my concept of suitable judicial philosophy more.

However – if Sarcastro is to be believed, and also if the evidence of my eyes is to be believed – lefties do not think judicial discretion is a bad thing, they think it is a good thing. The law must be interpreted to fit the needs of the time or whatever. (Whereas IMHO if the law does not fit the needs of the time, the judge should find it as it is, and let the legislature change it to whatever the legislature thinks fits the needs of the time. Stay in your lane.)

Thus if – as is the case – Republican nominees formally acknowledge the primacy of the written law over ‘the needs of the time” (aka their own policy preferences), while Democrat nominees formally favor a smorgasnord of “balancing tests” that allow the judge loads of discretion to fit the law to perceived need, that means I’m automatically going to be biased in favor of the Republican nominees.

Not for their political preferences but for their formal judicial philosophy.

Of course they may be hypocrites, and informally do what the hell they please. (Nieporent described Kavanaugh and Roberts above as “pragmatists” which I thought was a nice touch.)

But as the saying goes – hypocrisy is the homage that vice pays to virtue. At least the Republican nominees share an approximation to my opinion of what is virtuous – judicial philosophy wise. The Democratic nominees do not even pretend to.

So it is not surprising that I prefer Republican nominees, even though I accept that they may be hypocritical some of the time. And my ratings of the GOP judges reflect my finger in the air assessment of the extent of their hypocrisy.

I do not expect virtue from the Democrat judges – they never promised it.

[Sarcastr0]

The law must be interpreted to fit the needs of the time or whatever.

This is not what what judicial discretion means.

Discretion merely acknowledges that reasonable minds can differ. It is an objective fact about the impossibility of complete directiveness in the law.

And then off the the very old game of conflating a ton of non-originalist methods of constitutional interpretation into one muddy mess, and then complains it's muddy.

Read any split statutory decision and you will see how much discretion there is.

[Lee Moore]

Read any split statutory decision and you will see how much discretion .... is claimed

FTFY

[Sarcastr0]

So you find a ton of bad faith everywhere because you do not believe reasonable minds can differ.

This is no way to go through a life where there are other humans around.

[Joe_dallas]

Loki13
I would rank
1Gorsuch
2Thomas
3 Kagan (even though I disagree with her most of the time) h
4,5,6,7 - barret, kavanaugh, roberts alito
9 Sotomayor
Jackson - too early to rank - most likely somewhere between 4-8
Sotomayor

[Dr. Ed 2]

Jackson?!?

[Frank Drackman]

From Worst to best? can't argue with your police work there.

[TwelveInchPianist]

The grievance studies set has written quite a bit about the weaponization of white women's tears. For example: "When White Women Cry: How White Women's Tears
Oppress Women of Color"

I wonder if we're seeing the weaponization of wise Latina tears.

[JesusHadBlondeHairBlueEyes]

They made a game once, like that old Rule 34 one where if it exists there's porn of it somewhere on the internet but for racism.

If it exists, some Democrat has said it was racist somewhere.

You wouldn't believe the incredible, all encompassing, amount of things our taxpayer dollars funded studies on to prove were racist.

Zip codes, pillows, being on time, 2+2=4, apples, smoke alarms, batteries, dogs, light switches, cars, natural families, being married, being single, having kids, having too many kids, not having kids, vacations, not being a criminal, climate change, etc...

[Lee Stillman]

The feelings of crybullies are always more important than your rights.

[LawTalkingGuy]

Lol you just described the "pro-life" movement to a T. Literally a movement of people who have an emotional conception of the value of life in the womb that they consider more important than the mother. And are willing to use violence to enforce that emotional reaction!

[Frank Drackman]

Just pretend they're unborn sea turtles, with your personality shouldn't be difficult.

[Sarcastr0]

She's not bullying anyone.

If you feel threatened, that's something you are bringing in.

[Nige]

Why? The only thing it's going to provoke from conservatives is crowing and contempt and cyncism like this. Most 'sensible' liberals will just find it embarrassing. She must have known that, but she did it anyway. It isn't as if having emotional reactions to things isn't actually the most normal thing in the world.

[Sarcastr0]

I wonder if we’re seeing the weaponization of wise Latina tears.

Long way to go to make that reference. And call her a liar.

[TwelveInchPianist]

"Long way to go to make that reference. And call her a liar."

You get that you're calling her a liar with your claim about settled law, right?

[Sarcastr0]

I advise you to read my claim again - specifically regarding the Senators and what was actually asked.

[TwelveInchPianist]

I've read it, and there's no basis for saying the Kavanaugh was dishonest for using the term settled law that wouldn't apply to Sotomayor.

[Sarcastr0]

I'm not confident he used the term, but your argument seems to be that Kavanaugh fooled the Senators, and that's a clever thing he did.

If that is what happened it is not, in fact, a good or clever thing. Hiding behind jargon is indeed deceitful, and technically correct is not in fact the best kind of correct.

[TwelveInchPianist]

“I’m not confident he used the term,”

Do you think Collins was lying when she said that he used it?

“…but your argument seems to be that Kavanaugh fooled the Senators, and that’s a clever thing he did.”

How do you square that with what I actually said?

It wasn’t a lie. As DMN said, the Senators “know what the phrase “settled law” means (and doesn’t mean);

"If that is what happened it is not, in fact, a good or clever thing. Hiding behind jargon is indeed deceitful, and technically correct is not in fact the best kind of correct."

Agreed. But as I've repeatedly said, I don't think that that's what happened.

[Caphon]

> told a crowd on Friday at the Radcliffe Institute at Harvard University, where she was being honored

I first read that as “where she was being humored”. Fits better.

[LawTalkingGuy]

Here are the cases I think would lead to her not only having this reaction, but also telling people about it in order of likelihood:

1. Idaho v United States: based on oral argument, it could be 5-4 men vs women. Language is going to be entirely dismissive of women's health concerns and their value as humans. Possible set up of a fetal legal personhood doctrine. Failure to grapple with the fact that they are running headlong into imposing a duty to die on pregnant women. (If you think I'm being hyperbolic about this there were three dissents in the OK Supreme Court that more or less took this position, and Alito notably did not even bother to cite to Rehnquist in Roe where he said "If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective."

2. Rahimi v United States: an expansion of Bruen and an opinion so callously dismissive of the realities of domestic violence. Similar problem to EMTALA case: announcing that women have a duty to die, but this time its to let violent men keep guns.

3. Alliance for Hippocratic Medicine v. FDA: possible adoption of a Jim Ho standing theory that privileges the feelings of conservative (male) doctors over the real lives of pregnant women. An endorsement of the most batshit theories of the Fifth Circuit which will only encourage them to make things worse.

[Dr. Ed 2]

I'd like to see all three.

It's about time for women to be reminded that the world does not revolve around them.

[LawTalkingGuy]

Well duh. You're a really bad person.

[Dr. Ed 2]

But what made me one?

[LawTalkingGuy]

You. You choose to be one. And blaming your shittiness on other people just confirms it. You don't have to be this way. You can always choose to be better. Even people with personality disorders can get therapy or at least endeavor to feign morality even if they truly don't believe in it.

[Frank Drackman]

I'd tell you what personality disorder you just exhibited if they weren't made up bullshit psychiatric diagnoses, the common thread being peoples that Shrinks don' t like, in fact that was an actual "Pearl" the Shrinks cast before us Swine, nearly all of whom went into specialties based on actual Science, "if you find yourself disliking your patient, they probably have a Personality Disorder" Of course this was back when they were still teaching Homosexuality was a Mental Illness (DSM-2)
Frank

[Frank Drackman]

Born that way obviously

[not guilty]

It may be time for Justice Sotomayor to step down. The composition of the next Senate may not be disposed to confirm another Biden nominee to SCOTUS.

After Justice O'Connor resigned, she remained active as a visiting judge on lower federal courts. That would remain an option for Sotomayor.

[hobie]

Agreed. When your credibility and impartiality are shot to shit like those of Sotomayor, Alito and Thomas, then it's time for the rocking chair. Or else expand the court like the Republicans in Arizona did so as to dilute out the rot.

[Dr. Ed 2]

I can see the current Senate not confirming a Biden nominee -- he'd only need to lose 5 Dems and he'd loose either 5 with Jewish states (including NY) or 5 Terrorist-friendly Senators regardless of who he picked.

[David Nieporent]

I can see the current Senate not confirming a Biden nominee

But that's because you're really really really really really really really really really really really really stupid.

[ObviouslyNotSpam]

I'd like to see that, if only to see the Republicans try to block the confirmation on the basis that "it's an election year"...

[Rev. Arthur L. Kirkland]

Different people react to pressures (real or perceived) in different ways.

Some cry alone.

Some cry with others.

Some hoist un-American flags to display their disaffectedness and proclaim their un-American, disgusting, antisocial nature.

Some see things that aren't there -- genuine delusion -- and some seem compelled to discuss their delusions publicly.

Some blame their wives (some even throw their wives under the ugly bus).

Some become bigots and misanthropes.

Some become reclusive, antisocial, disaffected, withdrawn, psychopathic, narcissistic, and/or resentful.

Some attempt suicide. Some succeed.

Some decide to try to make the world a better place. Others become conservatives.

[ConservativeProfessor]

"There are days that I've come to my office after an announcement of a case and closed my door and cried...There have been those days. And there are likely to be more." . . ."There are moments when I'm deeply, deeply sad"...."There are moments when, yes, even I feel desperation. We all do. But you have to own it, you have to accept it, you have to shed the tears and then you have to wipe them and get up."

Totally unbecoming comments for a justice, since it reveals that she is mastered by emotion and not reason. It's just the sort of public confession that the general public ought not to hear from a sitting member of the Court. It undermines confidence in her objectivity and her ability to judge dispassionately without regard to internal passions.

[LawTalkingGuy]

Have you ever been emotionally upset because someone else was being unreasonable? You can be perfectly reasonable, and then someone else isn't...so you get upset. And you express it. Indeed, it's often unreasonable to just pretend you're a robot!

[CDL]

Justice Sotomayor's public disclosure, at Harvard no less, of her putative emotional reactions to the outcome of some unspecified SCOTUS cases, is a disgrace. Under no circumstances does it therefore follow that, as a judge, she ought not feel in private any emotional reaction to the cases on which she is called to discharge her judicial duty.

Her disclosure is worse than unbecoming (I presume ConservativeProfessor is being polite in choice of adjective). It objectively brings the Court into disrepute, because: (i) it invites the implication that some contemplated but unidentified cases on which her view were defeated, are so humanly compelling as to impugn the legal bona fides of the Court majority which held against her view; and, (ii) by the very fact that such contemplated cases *aren't* identified, it insinuates that any and all cases on which her view were in a minority, are somehow tainted.

It beggars belief that any judge of any superior court of record of any common-law jurisdiction would behave as Justice Sotomayor reportedly did before the public forum of an eminent institution.

[Noscitur a sociis]

(i) it invites the implication that some contemplated but unidentified cases on which her view were defeated, are so humanly compelling as to impugn the legal bona fides of the Court majority which held against her view; and, (ii) by the very fact that such contemplated cases *aren’t* identified, it insinuates that any and all cases on which her view were in a minority, are somehow tainted.

It doesn’t imply that at all. It implies that she feels strongly that some of the cases where her position loses are bad decisions—which is not exactly news.

[LawTalkingGuy]

Man this is the most fake-ass pretentious writing I’ve seen on here in awhile. Say what you will about Blackman’s often lame attempts at snark and wit, but it is much preferable to this.

[Rev. Arthur L. Kirkland]

.

she is mastered by emotion and not reason

What did you say with former justice Scalia declared that he believed the devil was real? Did his rejection of reason for silly superstition bother you?

Or did the bigotry, backwardness, and old-timey religion create a right-wing bond that no affirmation of delusion could shake?

Carry on, clinger.

[Frank Drackman]

The greatest trick dat Ole Debil ever pulled was convincing A-holes like the Revolting Reverend that he wasn't real. Pretty sure Revolting's victims thought he was real.

Frank

[Rev. Arthur L. Kirkland]

How many of you gullible dumbasses genuinely believe the devil is real? Does anyone want to admit it?

[bernard11]

it reveals that she is mastered by emotion and not reason.

This is an unbelievably stupid comment. Apparently anyone who has an emotional reaction to anything "is mastered by emotion and not reason."

Where and what do you teach, Dr. "Conservative Professor?" (chuckle). Not psychology, I hope, or anything having to do with logic, or reading.

Tell us more about your credentials.

[ObviouslyNotSpam]

Well, at least she didn't go home and run a partisan flag up a flagpole...

[LawTalkingGuy]

This thread confirms my belief that it would be a good policy to give everyone, but particularly people on the right, a massive tax credit to go to therapy.

[hobie]

What therapy can break pathological delusion against objectivity? How do you convince someone that there is no hell, talking snakes, space lasers, or a Trump victory in 2020? They know snakes don't talk, but they believe it anyway. I think there is a psychological term for that but I cannot remember what it is.

[Frank Drackman]

Yes, everyone who doesn't think like you is mentally ill, you're like a more boring and less intelligent Ted Kazinski

[Rev. Arthur L. Kirkland]

People who fall for "Jewish space lasers" bullshit are fucked-up, worthless people. People who believe Trump won in 2020 are stupid, delusional assholes. People who believe in talking snakes, speaking in tongues, faith healing, and the like are gullible kooks.

People are entitled to believe and speak as they wish, but delusional, ignorant, childish people are not entitled to have their silly statements and beliefs respected by better people.

[LawTalkingGuy]

You don't need to be "mentally ill" to benefit from therapy. It can also help to deal with stress, difficult emotional situations, and relationship difficulties.

[bernard11]

I don't think they need therapy. They need to go back to school and learn reading, basic logic, etc.

[Frank Drackman]

Keep slouching towards Gomorrah Bernie

[bernard11]

No thanks, Frank.

I know enough of Bork's thinking not to be much interested in digging further.

[Vryedni]

Orin offers his two cents. Two cents with which, by the way, I agree a lot more than I do with the lame whining in this thread about Sotomayor having emotions.

[ThePublius]

Your link just brings us to this page, nothing by Orin.

[Vryedni]

Sorry about that. Don't know why that happened. Anyway, hope this one works.

[loki13]

Remember when Prof. Kerr used to blog here regularly?

You know, before Blackman and Calabresi?

Back when you could still say that you read the VC ... to other legal professionals?*

Those were good times.

*True fact. There was a point, a long time ago, when I felt comfortable citing a VC post in a brief and did so because it supported my position and it was a well-respected legal blog. I would not do that today.

[Sarcastr0]

Did you see that Prof. Volokh is Gina Carano’s lawyer in her suit against Disney?

It’s…not going well:
“To quote Carano’s own counsel, “requiring an artistic organization to hire as its speakers people who are associated with [a controversial political] position will undermine its ability to send the particular aesthetic or artistic message that it wants to send,” because “hearing even neutral artistic material from someone who has become well-known for political views may make that material seem ideologically laden, or at least may significantly distract from the artistic message.”
Eugene Volokh, Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer’s Own Free Speech Rights?, Volokh Conspiracy (Aug. 5, 2022)”

[loki13]

..... uh. No, I did not.

I do not have words.

I am reminded of Claybrooks v. Am. Broad. Cos., 898 F. Supp. 2d 986 (M.D. Tenn. 2012), aka the Bachelor case.

"Moreover, as the defendants persuasively argue, casting decisions are a necessary component of any entertainment show's creative content. The producers of a television program, a movie, or a play could not effectuate their creative vision, as embodied in the end product marketed to the public, without signing cast members. The plaintiffs seek to drive an artificial wedge between casting decisions and the end product, which itself is indisputably protected as speech by the First Amendment. Thus, regulating the casting process necessarily regulates the end product. In this respect, casting and the resulting work of entertainment are inseparable and must both be protected to ensure that the producers' freedom of speech is not abridged."

While it was a different issue, I think the takeaway is the same.

[loki13]

Okay, I've thought about this a little more.

Why would EV take on a case that is both (1) speech restrictive, and (2) goes against what he believes in terms of the law?

He isn't required to take cases.

I have been worried about his ... as I say ... drift over the last few years, and that's not a great sign.

[David Nieporent]

Why would EV take on a case that is both (1) speech restrictive, and (2) goes against what he believes in terms of the law?

That vacation home won't pay its own mortgage.

[loki13]

Can't disagree with that!

But you'd think he'd have his pick of cases that would pay off the mortgage.

[BadLib]

Why does she cry after announcements of decisions?

She knows well in advance what the decision is (assuming she's not forgotten and is surprised when it's announced) and should have gotten over most of her emotional response and vented it via conference or in one of her emotional, vs. legally, motivated dissents (or just in a good cry at the time she figures out that her attempts to legislate from the bench have failed).