Miscellaneous And Off Topic Subjects

[Dr. Strangelove]

STFU Vladimir DSL

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[Dr. Strangelove]

The downside to textualism is that sloppy drafting is punished. I also think you can get a little too formalistic and literal. The “gay rights” is in “because of sex” interpretation is probably an example. But, you know, that doesn’t happen often and I’d much rather have Gorsuch turning the screws on actual language than Brennan literally ignoring the language in the name of whatever he deems to be the true legislative purpose.

Thanks

And obviously I'd rather have Brennan and Douglas back, heh, or just a few justices like them. There's a place for at least a couple of folks like them but their style is effectively dead on the conservative side and Sotomayor is the only one who's even remotely close on the liberal side.

You're a lot more knowledgeable than me on this stuff but my complaint would be that I think textualism disguises the biases and personal politics of the justices. Brennan didn't hide from what he thought was the right thing. You might think he's fucking wrong as hell but he's honest about it being his opinion. Textualism tries to convince you that the outcome was only reached through months and months of academic study, agonizing over pronouns and the meaning of prepositions in early 19th century legislation. And for some cases they probably really do need to research because no one sane knows maritime law like the back of their hand. But for the really big society-shaping stuff? In reality every judge on this court knew within 10 minutes how they would rule on abortion. The only "textualism" comes from them ordering their clerks to find supporting evidence in the "text" and caselaw to vindicate their pre-held beliefs. Alito probably had that opinion ready to go for 15 years, just requiring a bit dusting off and a few updates.

And I think textualism suffers from a lot of the same problems as modern academia. The justices are mainly writing to impress and convince each other, rather than convince the layman. It encourages them to regard serving on the court as an academic enterprise, divorced from most of society, viewing their entire job as an abstraction.

BUT I do appreciate that you think originalism has flaws. We do not need the wizards in robes pretending to conduct seances with the ghost of Thomas Jefferson to ask his opinion on social media law. That may come off as more dismissive and mean spirited than I want it to be. I'm just more cynical about the approach than anyone here but obviously I'd lose my shit over any conservative judge who decided cases like Douglas did so if that makes me a hypocrite, heh.

Anyways, my snarky random thoughts while slightly tipsy. (It's Thirsty Thursday, you puritanical motherfuckers. Move to Pennsylvania if you'd begrudge a man a beer or two, and enjoy some revolting scrapple).

[iam416]

I think originalism is harder to do and more prone to disguising biases. I don’t think textualism is really like that. But the starting point for both theories is that when you write down words those words matter. And that gets to notions of who creates law.

Anyway. Why do you hate Lincoln?

[Dr. Strangelove]

I think originalism is harder to do and more prone to disguising biases. I don’t think textualism is really like that. But the starting point for both theories is that when you write down words those words matter. And that gets to notions of who creates law.

Anyway. Why do you hate Lincoln?

He ruined an otherwise landmark performance of Our American Cousin by causing a tremendous din, caterwauling about, and generally making a nuisance of himself.

[lineygoblue]

I thought scrapple was served with breakfast.

[THE_WIZARD_]

Scrapple is a Pennsylvania thing...you know...in JoePa/Sandusky land...

You do the math.

[Dr. Strangelove]

Former US attorney, Mayor of New York, Presidential candidate, and personal attorney for the President of the United States with an important message

[Da Geezer]

Well, Strange, speaking for puritanical motherfuckers everywhere, I'm wondering why you hate Thomas Jefferson.

[AlabamAlum]

The University of Virginia has a beautiful campus. If you went to Cornell, you’d hate Jefferson, too.

[AlabamAlum]

The word of the day is surfeit. All posts for the rest of the day must contain the word surfeit.

[Da Geezer]

Thanks

And obviously I'd rather have Brennan and Douglas back, heh, or just a few justices like them. There's a place for at least a couple of folks like them but their style is effectively dead on the conservative side and Sotomayor is the only one who's even remotely close on the liberal side.

You're a lot more knowledgeable than me on this stuff but my complaint would be that I think textualism disguises the biases and personal politics of the justices. Brennan didn't hide from what he thought was the right thing. You might think he's fucking wrong as hell but he's honest about it being his opinion. Textualism tries to convince you that the outcome was only reached through months and months of academic study, agonizing over pronouns and the meaning of prepositions in early 19th century legislation. And for some cases they probably really do need to research because no one sane knows maritime law like the back of their hand. But for the really big society-shaping stuff? In reality every judge on this court knew within 10 minutes how they would rule on abortion. The only "textualism" comes from them ordering their clerks to find supporting evidence in the "text" and caselaw to vindicate their pre-held beliefs. Alito probably had that opinion ready to go for 15 years, just requiring a bit dusting off and a few updates.

And I think textualism suffers from a lot of the same problems as modern academia. The justices are mainly writing to impress and convince each other, rather than convince the layman. It encourages them to regard serving on the court as an academic enterprise, divorced from most of society, viewing their entire job as an abstraction.

BUT I do appreciate that you think originalism has flaws. We do not need the wizards in robes pretending to conduct seances with the ghost of Thomas Jefferson to ask his opinion on social media law. That may come off as more dismissive and mean spirited than I want it to be. I'm just more cynical about the approach than anyone here but obviously I'd lose my shit over any conservative judge who decided cases like Douglas did so if that makes me a hypocrite, heh.

Anyways, my snarky random thoughts while slightly tipsy. (It's Thirsty Thursday, you puritanical motherfuckers. Move to Pennsylvania if you'd begrudge a man a beer or two, and enjoy some revolting scrapple).

Sotomayor: "And obviously I'd rather have Brennan and Douglas back, heh, or just a few justices like them. There's a place for at least a couple of folks like them but their style is effectively dead on the conservative side and Sotomayor is the only one who's even remotely close on the liberal side"

Well, you now have KBJ to go with Sotomayor in the under-80 IQ group. When a Justice thinks that "over 100,000 children, many on ventilators" are hospitalized on a given day, and says so publically, it might be a good idea for that person to study the issue. When a Justice doesn't know what a woman is, that is a problem too. We are not talking about "months and months of academic study" here, but we are talking about some level of real-world engagement. If it takes textualism to force those who have no common sense to NOT substitute their bizarre view of reality on the country, then that is a good thing.

And don't worry about being a hypocrite. A conservative justice who made rulings like Douglas did would not be a conservative justice. You say, ". Brennan didn't hide from what he thought was the right thing." That is not a proper basis for judicial review. As Talent says, that is why we write things down.

And also try to remember that laws in the US are reviewed by the SC by looking at the Constitution, federal statutes, and the common law in that order. So when we talk broadly about textualism, we are talking about more than just the constitution. Read Alito's dissent in the remain-in-Mexico case. He quotes chapter and verse on the federal statute requiring such a policy. At some point maybe the SC will demand that the Executive follow the oath that the President takes to "faithfully execute" the laws of the US.

[iam416]

For going on nigh 25 years, I've been surfeited of Alabam"Alum"'s posts and the inherent asshattery therein.

[THE_WIZARD_]

AA and Talent are surfeit sandbaggers...

[iam416]

When a Justice thinks that "over 100,000 children, many on ventilators" are hospitalized on a given day, and says so publically, it might be a good idea for that person to study the issue.

It certainly highlights why Courts shouldn't wade into policy choices. They should interpret the law.

Also, from a lawyer's perspective --

• "Textualism" is the process by which the Court interprets statutes. That's it. It ought to be a completely uncontroversial approach, but the likes of Justice Brennan made it a necessary approach.
• "Orginalism" is a process by which the Court interprets the Constitution. Orginalism starts witht the text. But originalism also looks at the intent of the drafters at the time the provision was adopted -- and that makes a lot of sense. HOWEVER, when you delve into intent you're getting into an area that is subject to mischief in that you can often come up with countervailing histories. For example, Justice Brennan would often ignore statutory language to divine some sort of "legislative intent." So, "intent" has issues. However, I still think it he best approach.

And we've mentioned Brennan several times, but it's worth noting that the textualism/orginalism approaches are direct pushback to the massively activist Coirts of the the 60s and 70s. Progressives seized on fundamentally non-democractic institutions such as the Court and Agencies to implement big policy ideas. Now, to be clear, the Bill of Rights is fundamentally anti-majoritaraian so, in some cases, the Court was right to embrace anti-majoritarian rules and laws. But, the mischief wasn't limited, in any way. And that was the problem.

It took the Rs 3-5 decades to right to ship. To obliterate "legislative purpose" and "legislative intent" from the way judges interpret statutes and get back to what they did for decades -- intrepret the actual words. And to at least introduce originalism as a concept that must be dealt with in any Constitutional issue -- how dispositive it is depends on the judge, but it can't be ignored. And it operates as at least some sort of limit on the ability of Judges to fashion new law from whole cloth.

I've said this before, and I'll say it again -- but the question really is WHO makes law? WHO makes big policy choices? I think it ought to be the legislature. Not agencies. Not courts. However, when you read Kagan's dissent, it's clear she thinks with "big problems" it ought to be anyone that can. It's the Progressive instinct to "do something" without regard to the actual formal "do something" framework we have in place.

[Da Geezer]

Well said. This is the WSJ take on the matter:

Justice Elena Kagan’s dissent accuses the majority of abandoning textualism. “Some years ago, I remarked that ‘[w]e’re all textualists now,’” she writes. “It seems I was wrong. The current Court is textualist only when being so suits it.”

Textualism has become en vogue among liberal jurists because they can use it to bend statutory text to their policy preferences. First, they claim statutory language is ambiguous. Then they decide that under Chevron an agency’s statutory interpretation is reasonable.

Or sometimes they interpret narrow text broadly to give agencies expansive powers to do something that Congress never explicitly authorized or contemplated. Such faux-textualism divests the text of meaning.

The Court is now placing guardrails on Chevron to prevent lower courts from going off the constitutional road. Justice Neil Gorsuch’s concurrence, joined by Samuel Alito, is especially helpful in lighting the way for lower courts grappling with when and how to apply the major questions doctrine.

First, he writes, the doctrine applies when “an agency claims the power to resolve a matter of great ‘political significance.’” Second, an agency “must point to clear congressional authorization when it seeks to regulate ‘“a significant portion of the American economy.”’” Third, it may apply when an agency seeks to intrude “into an area that is the particular domain of state law.”

Justice Gorsuch adds that courts must examine the legislative provisions on which the agency seeks to rely “‘with a view to their place in the overall statutory scheme’” and “may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address” as well as its “past interpretations of the relevant statute.” Note his emphasis on statutory language. The majority’s decision reinforces textualism as properly understood and bolsters the Constitution’s separation of powers.

The dissenters bemoan that Congress lacks the expertise to regulate technical subjects such as climate change. In a footnote, Justice Gorsuch devilishly cites Woodrow Wilson, a progressive critic of the Constitution and a founder of the administrative state, as believing in government by experts because the people are fools. The real beef of the dissenters is that the Constitution purposefully makes it hard to pass laws.
***


Contrary to their critics, the Justices aren’t blocking climate regulation. They are merely saying that the decision on whether and how to do it rests with Congress. As with many other decisions this term, the Court is telling Congress and the executive to stay in their proper constitutional lane.

Congress must give clear commands before the executive branch can write costly rules that tell Americans how to live their lives. The Court is reinvigorating the separation of powers and enhancing liberty in the bargain.