The Supreme Court, bastion of conservatism

[UVACoug]

Couldn't have happened to a better (nay worse) person. Hopefully it means I don't have to listen to his inanely stupid takes on legal issues anymore.

[Uncle Ted]

The supreme court has been made whole again: https://apple.news/AqZ-rqGtoQcm3C3iYGX094g

[BlueK]

Post hoc rationalization after the fact. 41 years later. I’m not convinced. Every one of that second group of cases I listed involved the Court finding subtext in the Constitution to prevent enforcement of a local law or policy or sometimes a federal statute or policy to protect an individual liberty. Originalism can’t accommodate the storied constitutional opinions.

Every one of those disgraceful opinions I listed involved the Court deciding that the Constitution did not authorize it to intervene to protect individual liberty. If originalism could support reversal of separate but equal, I really doubt it could support using the Interstate Commerce Clause as authority for the Civil Rights Act. Certainly it does not accommodate radically changed norms regarding death penalty, birth control, homosexuality and gender.

So, the results speak for themselves. A “dead Constitution” as Scalia used to gleefully call it is just a dead letter, an abstraction.

It’s no coincidence that most originalists are religious. Mike Lee likes it because it’s a fancy sounding rationalization for preserving conservative laws and policies. it’s ironic that originalism is touted as a self-discipline when really it’s the opposite.

Still, the Court has moved progressively only in increments, always responsive to public opinion, and except for the death penalty, it has respected stare decisis. Even a progressive court is a bastion of conservatism.

Senator King here I think makes a strong argument and is saying I think the same thing you are.

https://www.theatlantic.com/ideas/ar...MDg2NjMzMzc1S0

[Jeff Lebowski]

Senator King here I think makes a strong argument and is saying I think the same thing you are.

https://www.theatlantic.com/ideas/ar...MDg2NjMzMzc1S0

Yes of course, because the best place to look for a balanced and honest assessment of ACB and originalism right now would be a democratic senator.

[BlueK]

Yes of course, because the best place to look for a balanced and honest assessment of ACB and originalism right now would be a democratic senator.

He's actually an independent, and not in the Bernie Sanders way. He's maybe only a slight bit less conservative than his colleague Susan Collins. At least read the article and comment on the merits. I didn't really expect a Cougarboardish answer from you to be honest.

[Jeff Lebowski]

He's actually an independent, and not in the Bernie Sanders way. He's maybe only a slight bit less conservative than his colleague Susan Collins. At least read the article and comment on the merits. I didn't really expect a Cougarboardish answer from you to be honest.

He seems a little worked up.

Embedded Tweet

[Green Monstah]

I’ve been reading up on the British constitution, which fascinates me because there is no document (like ours and
OST modern constitutions) that sets forth the fundamental duties of government and rights of its citizens.

The evolving, unwritten, English constitution and the common law is the legal tradition from which our constitution and legal system springs. I highly doubt the framers intended a rigid, immutable document and system. In fact, the survival of the Republic, IMO, likely dependent on reasoned, creative solutions, holdings, opinions, and institutions I. Order to gain a foothold and to inspire confidence in its formerly English citizens.

And while there is an amendment process, we have (from nearly the get-go) ceded to the judiciary the right to inch the law forward until it becomes a reflection of our collective ethos.

[Jeff Lebowski]

For the record, I don't fancy myself a legal scholar nor am I a strong advocate of originalism. About the only thing I have said in this thread is that there have been some horrifically bad takes (hyperbolic, over-simplistic, yada yada) on social media regarding ACB and originalism. There are elements of originalism that make a lot of sense but of course the founding fathers didn't foresee all constitutional issues. There has to be a good balance somewhere.

It seems to me that most judicial nominees end up being far more moderate than their opponents claim they will be. I suspect it will be same with ACB. I think she will be great.

[Commando]

For the record, I don't fancy myself a legal scholar nor am I a strong advocate of originalism. About the only thing I have said in this thread is that there have been some horrifically bad takes (hyperbolic, over-simplistic, yada yada) on social media regarding ACB and originalism. There are elements of originalism that make a lot of sense but of course the founding fathers didn't foresee all constitutional issues. There has to be a good balance somewhere.

It seems to me that most judicial nominees end up being far more moderate than their opponents claim they will be. I suspect it will be same with ACB. I think she will be great.

Except she just attended a campaign rally at the White House. Off to an amazing start.

[New Mexican Disaster]

He seems a little worked up.

Embedded Tweet

Why shouldn't he be?

[SeattleUte]

For the record, I don't fancy myself a legal scholar nor am I a strong advocate of originalism. About the only thing I have said in this thread is that there have been some horrifically bad takes (hyperbolic, over-simplistic, yada yada) on social media regarding ACB and originalism. There are elements of originalism that make a lot of sense but of course the founding fathers didn't foresee all constitutional issues. There has to be a good balance somewhere.

It seems to me that most judicial nominees end up being far more moderate than their opponents claim they will be. I suspect it will be same with ACB. I think she will be great.

You’re both right and wrong, as I’ve been suggesting. Originalism is horrifying if you place it in historical context and see how that view has been deployed. (Bork never became a Supreme Court justice, by the way, because of articles he wrote many years before excoriating the Civil Rights Act because he claimed there was no pace in the Constitution that gave Congress power to pass a statute making it illegal for a private owner of a burger shack in small-town Louisiana to exclude Blacks. Congress had used the Interstate Commerce clause. By the time Bork faced the judiciary committee as Supreme Court nominee, he’d had a change of heart.)

But you’re right in the sense that the extremism of these conservative justices is exaggerated by the left. I bet if the Supreme Cour considered Rowe today, the vote to overturn would be 8-1 against (Thomas the only overturn vote). They all want the Court to remain relevant and respected. They are all conservative in that they respect precedent and want the Court to remain vital. They are in the lap of the system. They all are very sensitive to popular opinion and the judgment of history.

This is why I’m not even disturbed by the prospect of democrats packing the court. There’s nothing magic about 9 justices, nor such a requirement in the Constituion. If they are appointed for life, and it’s all so polarizing and we’re so scared that this is anti-democratic, let there be twelve of them and a first presidency.

[SeattleUte]

Footnote. “Originalism” identified as such is a relatively recent thing. But the idea has always been around, and deployed to constrain the Supreme Court from, hands tied, to allow Jim Crow, eugenics, etc.

[UVACoug]

Senator King here I think makes a strong argument and is saying I think the same thing you are.

https://www.theatlantic.com/ideas/ar...MDg2NjMzMzc1S0

That article is a joke. A complete straw man, which seems to be the trend among current critics of originalism. Make up something absurd that is certainly not originalism ... and then make fun of it for being absurd. I'd challenge anyone to find one serious originalist that has ever argued that the Air Force is unconstitutional.

This excerpt is also pretty egregious:

Thomas Jefferson, who wrote the Declaration of Independence and paid close attention to the drafting of the Constitution from his official post in France, understood this danger explicitly: “I am certainly not an advocate for frequent and untried changes in laws and constitutions,” he wrote in an 1816 letter addressing what he perceived to be weaknesses in the new government, “but … laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

King uses Jefferson's quote as a justification for accepting changing interpretations of the Constitution over time, but Jefferson was talking about amending the Constitution over time, not reinterpreting it:

http://tjrs.monticello.org/letter/1384

The most disturbing line is this one, in my opinion:

Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public.

The idea that the federal government's purpose is to "act on behalf of the public" would have been anathema to the founders. It is inconsistent with the entire structure of the document and our government, which is built on the principles of strict limitations on what government can do. I realize that modern progressives, including some on this board, think the federal government's role should be to inject itself into every aspect of our lives. But that is not the system we have and it certainly is not what the constitution was intended to do. If you want to change that, go through the process and change the constitution ... or adopt a new one. Abandoning the fundamental principles that our nation was built on is not something that should be done by unelected judges.

[UVACoug]

For the record, I don't fancy myself a legal scholar nor am I a strong advocate of originalism. About the only thing I have said in this thread is that there have been some horrifically bad takes (hyperbolic, over-simplistic, yada yada) on social media regarding ACB and originalism. There are elements of originalism that make a lot of sense but of course the founding fathers didn't foresee all constitutional issues. There has to be a good balance somewhere.

It seems to me that most judicial nominees end up being far more moderate than their opponents claim they will be. I suspect it will be same with ACB. I think she will be great.

Originalism has its flaws, like any systematic method of interpreting the law. I'm not sure it is the best way to go about applying the law. But at least it is systematic. My biggest problem with the loudest critics of originalism is that they have no system at all. They typically work backwards from the result they want to see accomplished, which isn't an application of the law at all ... it is policy making. Some of them openly admit this.

I've seen some critics of originalism complaint that originalist judges do the same thing. They start with a preferred result and then dig up historical support, no matter how obscure, to support it. I agree that that has happened, but at least in those cases you have some objective criteria that you can judge the opinion by. If the great weight of historical authority goes against a particular decision, people can detect that and call it out.

When you have no objective criteria at all, there is no such thing as a bad legal decision ... only a bad result. In that case, judges become nothing but glorified super-legislators who are judged on the basis of their policy preferences and not their ability to apply the law as they should be. And if there is no one that will honestly apply the law, the law becomes meaningless.

[Now who’s the dean?]

He seems a little worked up.

Embedded Tweet

There are things worth getting worked up about.