SCOTUS under Trump

No, being a human fucking being is the source of my compassion.

Quick, someone nominate Timex to fill Scalia’s seat! He’ll be a perfect fit!

Kind of funny how it works out that “originalists” always somehow end up ruling in favor of corporations and christian religious groups.

Not related but this chart depicts the startling obstruction done with Obama’s judicial nominess:

Can read the study here:
https://fas.org/sgp/crs/misc/R43369.pdf

It’s not that the law doesn’t matter. It’s that it is, by linguistic necessity, often ambiguous or imprecise. And by legislative practicality, often contradictory or confusing. So the courts will always have to interpret it. Words don’t speak for themselves. They can’t be “literalist”, because a literal interpretation either doesn’t make sense or makes multiple senses. Ironically, Gorsuch’s position on Chevron deference gives judges more power versus elected/consented to officials than the mainstream doctrine.

This is the thing we should all be fighting against. There’s nearly always going to be a simple majority in the senate. Everything should require 60 votes so that there’s compromise involved. Turning this into a volleyball match where sweeping change is made every 4-8 years to overturn what the previous administration did is counterproductive and costly.

I think it comes down to what you think the role of the judiciary is. To enforce shitty laws, and force the legislation to do their job and fix it, or help fix the shitty laws through judicial ruling.

It is messy.

It’s not an either or, though. It depends on the shittiness. If the laws’ shittiness is unconstitutionality, then it’s uncontroversial that the courts should “fix” them. Somewhat similarly, if the shittiness is that they cannot be enforced (or only capriciously, because so broad), then the courts will strike them down. On the other hand, sometimes the courts need to enforce the laws by “fixing” them, by interpreting what isn’t plain in the text.

Oh sure, but the judiciary cannot and should not fix a law that is clearly and unambiguously shitty. Because the legislature intended a shitty thing to happen.

But the problem here is that, if you say you are going to rule on what the text of the law actually contains, then that is something which can be consistently enforced. It’s a very clear set of rules, that can easily apply to every case.

Once you step away from that, then you’ve eroded the rule of law. Because what are you basing your decision on? If you aren’t basing it on what the law ACTUALLY says, then what are you using to derive your assumptions regarding what the law intended?

You can’t derive it based on what you think it SHOULD intend, because that’s clearly beyond the scope of powers intended for the judiciary. There is nothing in the constitution which prohibits the legislature from making grossly terrible laws. So you can’t say, “Well clearly this law means X, because otherwise it’s a terrible law!”

So upon what are you basing your judgments?

By that argument, why do we need judges? Couldn’t grammar experts just tell us what the words say? If all that mattered was exact wording, precedence would be meaningless.

Well, no, for a few reasons.

First, and most obviously, aspects of the law specifically require some degree of interpretation. For instance, the idea of “reasonable” doubt highlights this. There is judgement required in determining what “reasonable” means in various legal situations.

Second, some portion of judgement involves knowledge of the broader legal framework, beyond a single particular law, and how those pieces fit together, as no law exists within a vacuum.

So it’s not the case that no human interpretation is ever needed, of course it is… but that doesn’t mean that the judge is free to rule, not on the text of laws, but some other imagined law which does not exist in concrete form.

It’s really not. Ambiguity is a thing. So are drafting errors. So is just plain bad drafting that doesn’t tell you explicitly what to do in a given situation. If the government says the law means one thing and another party says it means a different thing, the court has to decide (or refuse standing, obviously, but you get my point)[quote=“Timex, post:229, topic:128260”]
If you aren’t basing it on what the law ACTUALLY says, then what are you using to derive your assumptions regarding what the law intended?
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Well of course you base it on what the law “actually says”, but sometimes that isn’t enough to determine what should happen, for the reasons I’ve articulated. What other sources of jurisprudence you draw from to decide that depends in part on your judicial philosophy — Scalia would say one thing, Gorsuch another, and Ginsburg yet another. Hell, they wouldn’t even agree on “what the law actually says”, or how to determine that - does it mean what the people who wrote it thought it did, or what a reasonable person at the time would think it to mean, or what a reasonable person today would think it to mean? It also depends in part on precedent, and in part on basically universal legal principles (as a shorthand, English common law).
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I’m just going bump the podcast I linked above on Originalism again.

But both Shiva and I pointed out how saying “being an originalist is disqualifying” is obviously false, on its face, by virtue of the fact that the guy Gorsuch is replacing was an originalist.

I mean, it’s simply wrong, obviously.

And Scalia was a fucking monster, so yeah, disqualifying.

I mean, he probably isn’t the single most damaging-to-the-Republic American to have lived in the 20th century, but, well, Reagan’s a high bar to clear there.

Yeah, I’m not sure how “Basically 20 more years of Scalia” is meant to be a positive in the column of any person capable of love for their fellow man.

And let’s not forget that in the main, despite their accomplishments in setting up the Republic, the Founders were slaveholders (so Originalism only goes so far).

Yeah, I think maybe you might want to consider that your perspective is somewhat skewed in this regard.

Yeah, but we have an amended constitution, and laws that have been made since the founding of the country.

Yeah, I think maybe you should consider not being a condescending twatwaffle, but hey, you do you.

That’s what it’s going to take to fix things, and eventually demographics will settle things- or we get the Social Wars, 2100 years later edition. We’ll get what we deserve as a country.

I also think Gorusch is an extremist, though one who is good with words.

And thank goodness for that.