So? What about the quote offered, which specifically and explicitly refers to it? What about the content of the thing? Tell us why he is wrong, and most likely would not have said such a foolish thing if he had consulted you first. Or don’t, if this is all you got.
What about the idea that the motive of some of the people who voted for a law can possibly be A basis for deciding a law is unethical? Or, more subtly, the idea that the motive of some of the people who voted for a law, particularly if they are more knowledgeable about the specific details and environs than we are, can be used as A basis for predicting what the outcome of that law is likely to be?
Just a point of reference here, how much does a heap of your scorn weigh these days? Would an idea, absurd or not, even be aware it had been heaped upon? I’m guessing not, it’s not nearly as substantial as it once was, alas.
In law, we have a concept called the Best Evidence Rule. This rule basically says: if you have a writing, and you want the contents of that writing introduced into evidence, you can’t have someone testify about what he remembers the thing said. You have to introduce the writing itself, because it’s the “Best Evidence,” available of what it says.
If the only way to examine the effects of Voter ID laws were to look at the motives of their supporters, you might be able to convince me to pay attention to those motives.
But since we can actually study the outcomes that actually occurred, no, Max, those motives mean diddly and squat.
You said:
He’s wrong because whichever way he voted would not have changed the outcome at the Supreme Court. He’s not a Justice of the Supreme Court. Why am I supposed to care that he changed his mind? What is the relevance of Richard Posner’s conversion?
The plaintiff in Roe v. Wade is now pro-life, and deeply regrets her participation in the case.
Yet I suspect your reverence for the power of changed positions vanishes in that instance, eh?
The quote I offered was him quoting another legal scholar approvingly, about his opinion of the case popularly (?) known as Crawford. Poorly worded, perhaps, and you can believe I thought Posner was a Supreme if that boosts your self esteem. I am a kindly and generous person by nature. And it costs me nothing.
Judge Posner did not even say the ruling was wrong, as such, nor his part in it. What he does say is that his part in it would have been very different if he knew then what he knows now. The information and evidence that formed the basis of his opinion is not valid, in the light of recent knowledge.
How can it be “valid neutral justification” if its isn’t valid, as recent evidence shows? How can it be “neutral” if current evidence shows that it is slanted to favor the Republican Party? So, “valid neutral justification” might have been acceptable at the time, but is no longer.
So, why don’t you just tell us why Judge Posner is wrong, and you are right? If he had had the wisdom and foresight to consult your beforehand, what would you have said to dissuade him from this foolishness?
You don’t understand what the adjectives “valid” and “neutral” modify. The justification you are picturing is not the justification that the court wrote about.
Judge Posner does understand this, and you’ll try in vain to discover any words he wrote that there is no longer “valid, neutral justification.”
Judge Posner’s reversal of viewpoint rests on a different point. The new evidence he has seen casts doubt in his mind about the burden allocated to voters, and whether it is truly “minimal” and “incidental,” as the trial court record at the time showed.
Posner says nothing about the lack of “valid, neutral justification.” You’re the only one saying it, and you don’t understand it.
And at the same instant of vanishing, your eagerness to discuss the general principle of how much a changed position by an original player means seems to have been lost.
Does Norma Leah McCorvey’s pro-life position now invalidate the result in Roe v. Wade?
Well, in a few weeks we can find out if in practice the idea is evil or merely stupid.
Do we ignore the legal positions on a case of those who weren’t involved in its result?
This is such a slippery question I’m having trouble figuring out how to answer it meaningfully.
So: yes, we ignore the positions of those not involved in the case when answering the question: “What is the outcome of this case?”
I didn’t intend slipperiness. To the contrary, the reason I asked was to clarify what you were saying. Which you did, so thanks.
Glad to.
The reason I found your rephrase ambiguous is that “ignore,” is an absolute word, and the value of Posner opinion varies depending on the context of the question.
We certainly ignore his view when determining what the Supreme Court decided.
As a citizen, he has a vote in his home jurisdiction just like any other citizen – so we don’t completely ignore him when it comes to electing representatives that will continue, or reverse, a Voter ID initiative.
As a prominent legal scholar and sitting federal judge, his words carry some persuasive weight as to legal issues, but there are plenty of equally qualified legal scholars who disagree with him, and plenty of others who share his view, so while we don’t “ignore,” him in this context, his view is not dispositive insofar as determining if there is any prevailing weight of legal thought on the issue.
You mention the potential for persuasive weight of legal opinion through position and prominence in the field. Is there potential persuasive weight through meritorious arguments, or does that not make sense if a question has been settled in law in a manner that rejects those arguments?
If its all the same to you, I will continue to ignore your snide insinuations about liberal hypocrisy, your efforts at self-parody are your own concern. Nonetheless, one cannot help but feel as if smacked across the knuckles with the steel ruler of Sister Scaiia Immaculate. Turns out, it was only a rolled up law degree, masquerading as authority.
Are we given to believe that all legally trained persons see the matter precisely as you do, that only dim peckerwoods like myself misunderstand what is so clear to the elite ranks of legal professionals? Your position, then, is unanimously and universally accepted as correct and unassailable? You seem eager to give that impression, does it have any actual substance?
The “valid neutral justification” isn’t the thing itself, it rests upon our concern for our elections, that they be fair and honest, that justice is not only done, but seen to be done. From this, it necessarily follows that a law that supports voter confidence can be said to have such a justification. Reassuring Republican voters that their votes are not being negated by scruffy scoundrels from CASA and ACORN, aided and abetted by radical activists from the League of Women Voters. True enough, if there were any actual substance to such claims. Let us be generous and pretend, for the moment, that is so.
But! and this is a big But!, I like big Buts! and can’t deny it…if the cure for the ailment is more fatal than the ailment, what then? Are we somehow compelled to ignore that fact, because The Law has spoken, we tremble and obey?
When these things were first brought to the court, it would be fair enough to suggest there was some ambiguity. Each side brought its facts, and yours insisted that negative effects on the electorate were minor, insignificant, mere inconvenience. As Judge Posner points out, at that point in time the negative effects were conjecture as offered by the Institute of Pencil-Necked Liberal Wussies.
But now we have much more substantive evidence, from the GAO, number crunchers of the first water. And that evidence makes a hash of your case. Far from being a minor and insignificant burden on the lazy and feckless, these laws are revealed to be an unjustifiable intrusion, as they are weighted against the supporters of a particular political party.
Why are you compelled to offer fanciful rationalizations, of super-dooper close elections which might be wrongly decided by a handful of illegitimate voters? Because your case must finally rest on those bedrock principles, equality before the law, and the civic sanctity of voting. How is it, then, that the voter confidence of comfortable Republicans outweighs the voter confidence of the rest of us?
Because its the law, you insist. It is a done thing, and if you liberals want to change it, you must offer compelling evidence for change. Well, now we have it. And it would appear that such evidence is sufficient to change at least one mind, if not yours. Not to suggest that the opinion of some minor backwoods lawyer like Posner could be held to be more valid than your own widely recognized authority, but still…
Voter ID could have been done justly and reasonably, outreach efforts could have been made. A picture ID need not be a daunting prospect. Hell, it doesn’t even need to be difficult or time consuming. A legislature that wanted to promote voter confidence while protecting the voting rights of riff-raff such as myself, could easily have done so.
They did not. If protecting voter’s rights is the core value upon which “valid neutral justification” rests, and that core value is the sole motivation for these laws, why not? Was there even any good faith attempts? And if there were, were they the rule rather than the exception? The record on that is starkly clear.
For the most part, it appears the Republicans have at least partially succeeded in their rear-guard defense of stacking the electoral deck in their favor. But it will not stand, the tide is turning, based on…evidence. Judge Posner is not the be all and end all, certainly not, but he is indicative of the change. He is held in some considerable esteem, I am given to understand. Even one as meagerly gifted as myself can see that, I’ve labored through several of his articles, and can say with confidence that I understand at least half of it. He may even be that person I have so often missed, the honest conservative, and, if so, may the Goddess bless him and keep him close to Her bountiful bosom all the days of his life, amen.
Nonetheless, if it pleases you to sneer down on me from your Olympian majesty, I would not discourage you. My own father was was a mite thin on paternal wisdom to offer, but one nugget has stuck with me. Being underestimated is a great gift, not to be resisted, its a pleasant surprise for your friends, and your enemies got it comin’.
You would be interested in this article in the New York Review of Books, by Justice Stevens:
In which he outlines the fault lines between such as himself and the odious “Fat Tony” Scalia. Not that I have any bias…
(You may, of course, already have read it. Myself, I only read the Review for the racy and salacious personals…)
No. Crawford itself was a 6-3 opinion. Souter and Ginsburg dissented, saying the burdens were not trivial. Breyer dissented, saying the proper thing to do is weigh burdens against gains, and if this is done, the burdens are too heavy for the value received by placing them.
But, yes: I think that even liberals can realize that 6 is a majority portion of 9. All legally trained people understand that the decision in Crawford is binding law because six is greater than three. Only SDMB liberals such as yourself remain baffled by that mathematical calculation.
That was Breyer’s precise argument in dissent. He said:
What he lacked was four other justices who agreed.
So if you want to know what the law is, you do ignore that fact, because that’s not how the case was decided.
If you wish to announce that you (and Breyer) would have done it differently, feel free. But who cares? I already know that you, Breyer, and Posner are opposed to these results. But since the votes that actually create decisional law (as opposed to liberal fantasy) weren’t there, the law didn’t get decided the way you wish.
So, sucks to be you.
It seldom does, no. When the proposed method of analysis has been rejected, and when there emerges no clear oppositional consensus, it’s simply masturbatory excess to continue to flog the idea.
What if it was flipped around? In a hypothetical situation where there is oppositional consensus, is that necessarily (or, at least, seldom otherwise) “weighty”? That, in effect, since there seldom is any such thing as quality of opposition, quantity cannot be judged through quality, either? It’s purely a show of hands?
One of your more cogently reasoned "neener-neener"s. Gloat while you can, tick tock, tick tock…
Not everyone has the balls to gloat pre-emptively, I guess.