But why should I keep fighting it? I’ll adopt the approach you guys like: judges make law; the key to getting the law I want is to get judges that will create it.
Now Roy Moore starts looking good!! And luckily, there’s no filibuster any more. Breyer retires, RBG retires, and we can get new guys that will reliably rule conservative, no matter what Congress does.
What’s not to like?
This is probably the way that most liberals think most conservatives actually evaluate a justice (and vice versa), thus reinforcing the philosophy as necessary.
Corporate personhood is actually pretty central to the functioning of capitalist society–it couldn’t happen without it.
Like, as a communist I’d like to see us move beyond capitalism, but that’s not happening overnight and in the meantime capitalism has to remain functional or life will suddenly get incredibly shitty for a lot of people.
I guess the accelerationist POV is “let capitalism collapse and we’ll build on the ruins,” but accelerationism is just privilege-blindness that misses the whole point.
You made no such distinction, which, given certain unnamed posters penchant for pedantics and legal nitpicking, was what caught my eye originally.
You stated: " if you agree that the federal judiciary has a role in carrying the burden of updating old statutes, and avoiding statutory obsolescence, then it’s fair to say the Seventh got it right." Now, in a thread about this particular case, I think the only fair way to read that was that you thought “the Seventh” was “updating old statutes” and they (and the whole “federal judiciary” shouldn’t have that role. Nothing in there about “well, the RESULT wasn’t actually bad, just the majority opinion”. You then spend posts with your typical “not a representative democracy” and the lawmaking function of the ruling without once making the distinction between the result and the majorities opinion. Finally, you agree that the majority was actually correct when they said: " The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence." yet still insist their reasoning was a stroke of judicial activism.
Even now, you’re playing your little “out of control judiciary” bogeyman without once saying that the result of the case was actually correct. It’s inanity.
Did you skip some of my posts?
Nope. Read 'em all. The cries of judicial activism and usurping the legislative process were all there. The admission that the result of the case wasn’t actually judicial activism and was completely appropriate and within the rightful power of the judiciary weren’t there until I called you on it.
Interesting discussion.
I think there are legitimate concerns to be expressed here about interpretive method, but conservatives have wildly oversold them and undervalued them by only applying them to when liberals win.
It’s one thing to say legislative intent be damned when the language is somewhat unambiguous. I think it’s obviously correct that an unambiguous statute should not have its meaning changed by legislative purpose. But it’s another thing to ignore intent when the language is reasonably susceptible to multiple meanings. Legislative intent is a perfectly good tool for resolving ambiguity, and liberals ought not abandon it when it suits them the way that conservatives have done so when it suits them.
Here, “sex discrimination” is a single phrase that is susceptible to multiple meanings. It might well include any discrimination that logically involves a person’s sex. But it might also include only that discrimination that is based on beliefs about the inferiority of one’s sex. And there’s a pretty good argument that the legislative intent was to attack discrimination based on beliefs about the inferiority of women.
So I’m uncomfortable with the majority opinion, though I wouldn’t say I’m entirely unpersuaded. I would just say I’m not entirely persuaded. I do think we should all agree that this is a third-best solution to solving sexual orientation discrimination, with the second-best being legislation intended to target it, and the first-best being social change so it’s not an issue that the government even has to address.
That said, I would interpret statutes differently from the Constitution. I think most parts of the Constitution involve general principles, that were intended to play out in new and unexpected ways. The Constitution serves to bind the will of the majority to certain fundamental ground rules. Statutes aren’t supposed to do that. So I’m less inclined to read statutes as enshrining general principles that may expand dramatically beyond their intended ends.
Or when I posted:
Yes. I agree that these changes represent real changes in the factual situation, similar to the Internet being “press” and an automatic rifle being a firearm.
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That’s a definition of terms used in the legislation coming out of congress, not legislation. It refers to “In determining the meaning of any Act of Congress”, not in determining the meaning of the constitution.
Could congress also, through legislation requiring only a simple majority, added “dogs” to that list of things that are referred to as “persons” or “whomevers” would that put dogs under the protection of the first and 14th amendments?
Can congress really change the meaning of the constitution that easily?
As a slightly less silly scenario, if congress added “fetuses and embryos” to that list, do you think that that would override the constitution, and automatically give fetuses and embryos the protection under the 14th?
It was rejected by judges who were confirmed by elected legislators after being nominated by elected presidents.
Should your scenario come to pass (I call it "your scenario, not because I believe you advocate it [I understand that while you would like the result, you would not like the process], but because it is one that you have presented), then it will be quite likely that legislators that would confirm judges who would overturn that ruling would be elected fairly en masse, along with presidents who would appoint them.
Legislators, presidents and judges who would overturn bricker vs. roe v wade would also very likely push for other agendas that I may like.
So, while you would do some damage to the country for a bit if you managed to get this court opinion through, you would do much more damage to your party, allowing us to fix those mistakes.
I understand corporate personhood from a standpoint of creating an entity for the purpose of conducting business. I own one and am operating it right now.
I do not agree with corporate personhood when it comes to the corporation having a voice in the political process, or the corporation having religious beliefs. Those are not the reasons why we have corps, and removing those rights from them will not cause capitalism to collapse.
Put it this way, why does my LLC not get to vote? (Sure, it’s only 5 now, but in 13 years?)
The outcome. That’s what’s not to like. If that happens, I’ll not be happy. If your predictions about what the future brings are correct, I’ll not be happy. If I were alive in 1900, I wouldn’t have been happy.
But historically, throughout my lifetime, the courts have tended to push justice forward (side note: Brown vs. Board was one of the seminal actions of the civil rights movement, as was the SC case that ended anti-miscegenation cases, as was the SC decision allowing the Montgomery bus boycott to proceed). Since my interest is justice, not procedure, I’m going to advocate for that.
If you like a different outcome, my issue with you isn’t the procedure you’ll follow to get that outcome; my issue is with the outcome you like. If you want whatever Roy Moore wants, I’ll argue you about wanting that, not about the procedure by which Roy Moore will try to make it happen.
The thing being attacked by an outcome-focused approach is the rule of law itself. The rule of law is a fragile creature. Once you wound it sufficiently, it slinks off to die in a cave. You won’t be able to resurrect it with the belated realization that you really liked it after all.
We don’t know what precise level of outcome-oriented jurisprudence is enough to finally tip the scales against the rule of law. Just like North Korea doesn’t know precisely how much posturing they can get away with before we finally launch a pre-emptive strike. But the lack of pre-emptive strike so far doesn’t tell them precisely where the line is. And lest you think the death of the rule of law is merely a theoretical boogeyman, I urge you to cast your gaze upon Hungary or Turkey or the other modern nations regressing into fascism (to say nothing of our own lovely democracy’s trajectory).
I haven’t read through the whole thread, but such a statement is arrogance. If the majority is against a particular idea, who are these philosopher kings telling that majority what is suddenly need to be thrust upon them?
In response to the OP, I disagree with the ruling. Congress had continuously debated and refused to enact protections for sexual orientation in the law. If an employer treats a gay person differently it is not because of a particular animus against men, or an animus against women. The discriminations are against all persons who have relationships with members of their own gender, men and women. If Congress wants to protect that, pass the law. The courts should not enact laws themselves.
What I think you’re missing is: institutions have authority. The courts have authority because we agree they have authority. When you are willing to elevate the result over the process, you deride that authority. You chip away at it; you invite your opponent to stack the courts with his guys to get his way.
The federal judicial branch’s authority is manifestly undemocratic. It is manifested by unelected judges with lifetime appointments. We, as a nation, consent to this particular manifestation of undemocratic rule for one reason. And guess what that reason is NOT? It’s not any variant of, “These are wise and learned philosophers whose personal judgement we trust will guide the nation well.”
The reason is that the Court is thought to apply a neutral, valid, and transparent theory of statutory and constitutional interpretation. We accept this bemouth of jurisdictional power and reach because we charge the ones holding its reins that they are to set personal preferences aside and apply the accepted theory to the facts before them.
And we know this for a very simple reason: the Court itself always says so. Even when it is creating law from the justices’ preferences, it always, ALWAYS, maintains the claim that it is a servant of the legislature’s intent. You must understand, at a fundamental level, that if judges were to openly admit to what you are happy to have them do (as long as they agree with you!) then the result would weaken the judiciary.
While in theory, this statement could make some sense, in this context it really reflects poorly on you and I would reconsider it. Yes, what arrogant soul am I to try to push antimiscegenation laws on a majority who doesn’t want them?
The rule of law gives us Vietnam and chattel slavery, gives us Jim Crow and laws legalizing marital rape, gives us Ferguson and Donald Trump. I ain’t saying it’s a monster, but I’m also not going to protect its fragile feelings too much.
Note that I’m calling not for an extreme, burn-the-courthouse-down approach. I certainly recognize that focusing on a single outcome to the exclusion of others is bad: people that shoot judges they disagree with are focused only on one outcome, and that doesn’t end well.
But when deciding whether a court decision is good, tremendous deference should given to the effect of the court case. That’s what I’m arguing for. A closely-reasoned decision that permits marital rape is inferior to a sloppily-reasoned case that prevents marital rape.
Unless it is being attacked primarily by democracy.
We can vote for legislators who will confirm judges who will judge things in a favorable way to progressive ideals, or we can vote for legislators who will confirm judges who will judge things in a way favorable to conservative ideals.
I really don’t see this as an attack on the rule of law, as we are using the very rules written down in the constitution to put these people into power.
If we were just allowing random people to suddenly be judges, then we would have a problem. If we had non-elected officials appointing judges, that could be a problem.
As long as we are following the constitution in our selection of judges, I do not see the rule of law as being under attack.
My opponent is already doing that. If I don’t promote good outcomes, my opponent is going to continue doing that. The Meanest Turtle in the Bog spent 2016 preventing “my guy” from getting in the court, and spent today getting his guy in. I reject blame for the actions of my opponents.
I don’t understand that at all; I think it’s incorrect. Among the best values in our nation’s laws are those in the bill of rights, establishing broad and expansive principles of justice and fairness. Judges who take these principles and run with them are strengthening justice and fairness, and that’s a good thing. I don’t see that “admitting” they’re focusing on those core princples is a bad thing at all.
I don’t agree that the rule of law led to any of those things. The rule of law refers to there being a power in society that is independent from, and indeed provides a check upon, the whims of individual government officials. It forces us to govern by generally applicable principles rather than by ad hoc decrees. And rule by principles is, historically, a whole lot better than rule by ad hoc decree.
I don’t think that argument advances the ball any. Obviously that argument is correct as to the short-term consequences. I’m not sure it’s correct as to the long-term consequences. Marital rape is bad. A superpower without the rule of law is worse.
If the courts become just a sub-committee of the legislature, then the courts won’t last long. We know this because we’ve seen it happen in other countries.
I’m not sure how any of the things I listed weren’t the result of a power independent from the whims of individual government officials. Ferguson, perhaps, you could argue involved rogue officials, but I think that’d be a weak argument. Everything else I listed was the end result of considered work by officials firmly working within the rule of law.
Keep in mind that we’re arguing here over whether a superpower in which judges feel free to interpret statutes expansively in the service of justice is worse that marital rape. That’s what I’m advocating, not lawlessness.
If a judge is free to interpret statutes expansively there is no constraint that it must be in the service of justice - it could be in the service of injustice. While you are making the argument that your methodology would be better in times of benevolent judges, a system that relies on benevolence is bound to fail.