You’ve fallen victim to the fallacy of the fallacy of the heap. That clever sounding fallacy proves nothing, any more than xeno’s paradox proves that a hare can never catch a tortoise. There are an nearly limitless number of examples of situations where there’s a scale, and one end of the scale is something horrible, and the other end is something completely wonderful, and yet there are a finite number of steps between them, each seeming trivial.
So you and I agree that when the law is clear, judges should follow the law. Except that you and I also agree that when following the law would have a clearly disastrous effect, then the judge should not follow the law. So if I came up with one thousand very specifically constructed hypotheticals such that each one was NEARLY the same as the previous one, but the first one was a slam dunk follow-the-letter-of-the-law and the last one was a slam dunk can’t-follow-the-law-without-catastrophe, and I ask you at which point the judge should stop following the law, you might say “somewhere around #965” while I might say “somewhere around #750”, or something. Which is fine. Reasonable people can disagree. But what bothers me is you then presenting that as if your position is qualitatively different than mine, rather than you being further along a scale that we’re all on.
If an umpire encountered a truly unusual situation, one that was not very well covered by the rules of baseball, I would absolutely expect that among factors the umpire should keep in mind would NOT simply be “hmmm, nothing really covers this, but rule 128.5a suggests that I rule one way, and 137.8b suggests that I rule the other way, and now I have to just kind of decide which of those two rules it’s closer to”, but would also be “deciding one way would turn this game into a farce”. (Actually I believe there’s specifically a baseball rule saying that the umpire has the right to forbid anything that is “making a mockery of the game”, such as the infamous sending-a-midget-up-to-bat incident, so in that case it’s basically explicitly spelled out…)
Reason without empathy is reason without humanity. Reason without humanity is rationalsim, Lenin was a rationalist, Gandhi reasoned. A human being transformed into a set of cogitating gears has not been improved, but degraded.
Stark and objective rationalism is a tool and it has served us well. But the tool is not the hand, and it is the hand that creates, not the hammer.
I’m still rather skeptical of the notion that there was dedliberate intent to disallow subsidies for the federal exchanges, as an incentive. But this did give me a bit of pause. Something to keep an eye on.
So let’s take the other extreme. Suppose another judge has the philosophy that he should effectively ignore the laws as written altogether and substitute his own judgement as to what would be good for society, particularly on important matters. Would you say that there his position is not “qualitatively different” than yours?
I think your overall point has validity in many cases. But at some point a quantitative difference becomes a qualitative one.
It’s a subtle and complicated issue. If you sort everyone on the 0-to-1000 scale I came up with, you could roughly say "well, no one is below 50 or above 950. We’ll then call 800-950 “strict constructionists”, 500-800 “loose constructionists”, and so forth.
So clearly someone at 175 and someone at 850 or simultaneously very very different philosophically, but at the same time they’re still on the same scale.
Taking a step back for a second, I think we got off onto this tangent because you said “It’s a good question. But I think there’s a fundamental difference between a case where the law clearly intended to do something but failed due to some error, and a case where the law did not intend to do something but would have had the legislators thought of it. Which is why I made the distinction that I did to begin with.”
And I don’t think there always IS a fundamental difference. You can’t say “robotic judge should follow letter of law, ignore social impact, be constructionist – and then wonder what is this thing, love”, because examples are always going to possibly come up which will be right on the borderline between X and Y, pretty much whatever X and Y are or how you define them.
Also, that link you shared is very interesting and does, I agree, strongly undercut much of the argument my side is making. Makes me glad I’m just some shmuck on a message board, not someone who has to actually decide these things.
[hijack] Hollow points minimise the risk of the bullet hitting someone else after hitting the main target. They’re actually better in circumstances where bystanders are/ may be present, e.g. hospitals, malls.
We’ve just had a case here in Peru where a guy was shot in the heart in a disco, and the guy behind him got the bullet in the head and was also killed. A hollow point would’ve almost surely stayed inside.
Hollow points are not always as reliable a full metal jacket ones in a semi-auto. [/hijack]
I don’t know how far being on the same scale gets you. Jack the Ripper and I are on the same scale WRT killing people, in that we both agree that under certain circumstances it’s appropriate. But I think we’re very easily differentiable, in that he set the bar much lower than I do.
And my response to that was and is that there may not always be a fundamental difference but there sometimes is one. And you might have two judges who share the same basic philosophy who would arrive at different conclusions in those borderline cases, but would fairly predictably agree with each other on the more outlying cases. While another judge, with an identifiably different legal philosophy, would be predictably different from these two in the outlying cases.
In this case, IMO “there’s a fundamental difference between a case where the law clearly intended to do something but failed due to some error, and a case where the law did not intend to do something but would have had the legislators thought of it”. It may be that there are cases in which it will be hard to pin down as to which category it falls under, but there will also be other cases which are more easily assignable, and in the latter cases the philosophy of the judge would be the bigger factor.