# Justice Kennedy retiring **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 27, 2018, 6:14pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857 "2018-06-27T18:14:18Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [June 29, 2018, 4:47pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/201 "2018-06-29T16:47:19Z")
> [@Bricker](#): > > But why does your “I fid it appalling,” somehow translate into, "…and therefore judges should use their own better ideas about how things should go instead of what’s written in the law? > > In other word,s you acknowledge that judges’ job is to interpret the Constitution, not to impose a particular worldview on the rest of us. > > At one time, the Constitution explicitly acknowledge legal slavery. It also mandated that senators were selected by their state legislatures, and not directly by the people in the states. Surely these were also offenses against democracy and favored oligarchs, yes? Would you have wanted a judge to say, “Yes, the Constitution says this, but I think it’s wrong, so I’m going to order it be stopped?” > > I say that a judge who does that actually flies in the face of our democracy. Art V of the Constitution specifies that the way to substantively change the law is by amendment. That’s why the Thirteenth Amendment exists for slavery; that’s why the Seventeenth Amendment exists for direct popular election of senators. > > “But it’s almost impossible to pass an amendment to enforce the changes I want!” I hear you cry. > > Then: you don’t get them. You speak of a love for democracy, but can it be love when it’s only for delivering results you like? You’re full of passionate certitude that your way is better, but democracy means not just being certain, but convincing enough of the rest of the voting country that your way is better. I’m obviously not referring to examples in which the Constitution is explicit and clear; many of the 5-4 decisions are decisions about what is not explicitly mentioned in the Constitution - things like the limits of Executive and Legislative powers, or the balance between governmental powers and individual liberties. Surely you acknowledge that. Justice Kennedy didn’t have to interpret the Constitution in the manner that he did, but chose to because he’s predisposed to believe that the Constitution was written to promote the interests of private power (not to be confused with individual liberty) over public interest. I do not share that view, and neither do many of his jurist colleagues. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 29, 2018, 4:49pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/202 "2018-06-29T16:49:33Z")
> [@](#): > > My rebuttal is “no duty to fucking die for the company”. How’s that?.. By God, sir, you are talking about private property! Of course he isn’t obligated to die for the company, but he is obligated to take a reasonable risk! His boss takes the elevator to his office, that elevator could fail at any time and yet! he bravely proceeds! If he didn’t want to find himself in such a predicament, he should have paid more attention to the maintenance and upkeep of the vehicle! Go ahead, Mr Socialist Bleating Heart, tell me how that’s the company’s fault! ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [June 29, 2018, 5:19pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/203 "2018-06-29T17:19:10Z")
Perhaps getting tangential here but wanted to respond to this in particular. > [@Bricker](#): > > Then: you don’t get them. You speak of a love for democracy, but can it be love when it’s only for delivering results you like? You’re full of passionate certitude that your way is better, but democracy means not just being certain, but convincing enough of the rest of the voting country that your way is better. I don’t entirely disagree with what you’ve written. As we’ve discussed before, many of our problems that have been litigated would have been better resolved at the ballot box. A greater sense of political urgency is needed. At the same time, corporate interests that possess disproportionate power to influence what people think and talk about, and how they talk about it, can corrupt a democracy - and they’re doing it now. Misinformation and creating political echo chambers can corrupt the democratic spirit because it means that people in a democracy no longer have the shared understanding about the value of listening to what others have to say and compromising where possible - that’s happening now, and it’s indisputably the result of well-financed propaganda machines. It might be Constitutional, but this behavior favors oligarchy, not democracy. Moreover, thanks to “justices” like Kennedy, the plutocratic class have also gained legal leverage that enables them to better finance their political activism. On the one hand, plutocrats now have virtually the unfettered ability to influence politics and individual politicians however they please. And on the other hand, by going after unions, they have severely weakened the ability of ordinary people to do the same. The result is that private interests are increasingly in control of the political system because they have greater access into the system. That might be “constitutional,” but that is plutocratic, not democratic. Further still, they have also effectively exploited the use of political gridlock. Fearing unruly mobs and the like, the Framers viewed gridlock as a strength, a feature of the system and not a bug. However, in modern times, political gridlock has been abused and it conflicts with how modern participants in many democracies understand what a democratic system to be. To use a term that has been used recently, gridlock has been an example of procedural warfare on democracy and the public interest. Some gridlock has its place in a democracy, but when it gets to the point where someone can stick an amendment that derails legislation that most people want, just because a few don’t, then we lose faith in the system. Ordinary people begin to assume that their votes don’t matter anymore, because nothing ever gets done. Constitutional, but hardly democratic. I guess what I’m saying is don’t confuse an interest for constitutional integrity with a love for democracy. These two concepts are unrelated. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [June 29, 2018, 5:21pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/204 "2018-06-29T17:21:57Z")
> [@Bricker](#): > > Not, you notice, a rebuttal. > > He was fired for leaving his unsafe broken trailer by the side of the road and driving away. > > He sued under a law that protects him from being fired only if he “refuses to operate” unsafe equipment. > > He was not fired for refusing to operate unsafe equipment. > > What is your rebuttal? Here’s two rebuttals. Neither is a legal rebuttal, but on the other hand, only one is a moral argument, your least favorite sort. Happily, the first is a semantic argument, possibly the extra most bestest kind for you, based purely on our previous interactions. First: It is at worst a generous but not expansive interpretation of the language of the statute to say that the _use_ of a truck as a station in which to monitor and safeguard a broken trailer is in practice the _operation_ of equipment, and that to do so in a truck with a broken heater in subzero temperatures would fairly provide a “reasonable apprehension of serious injury to the employee” were he to have done it. The equipment and the manner in which Maddin was ordered to operate it (as an unheated guard shack rather than as a hauler) made it in that context (the _truck as guard shack_) “unsafe equipment” even though in the context of driving away (_truck as vehicle_) it was substantially less unsafe. And this is true whether or not the majority opinion made that explicit argument. Second: To argue that a ‘neutral reading of the law’ requires us to disregard the clear intent of the law - to protect employees from reprisals for keeping themselves and/or the public safe - based on strict, limited and arbitrary definitions of all terms is morally constipated. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 29, 2018, 5:43pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/205 "2018-06-29T17:43:46Z")
> [@Bricker](#): > > Not, you notice, a rebuttal. > > He was fired for leaving his unsafe broken trailer by the side of the road and driving away. > > He sued under a law that protects him from being fired only if he “refuses to operate” unsafe equipment. > > He was not fired for refusing to operate unsafe equipment. > > What is your rebuttal? A trailer is a vehicle. Federal law relating to motor carriers (and in fact US law generally) consistently defines a trailer as a vehicle. E.g., > [@49 CFR 571.3](#): > > Trailer means a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle. > [@49 USC 2301](#): > > (1) “commercial motor vehicle” means any self-propelled or towed vehicle used on the highways in commerce… The STAA’s whistleblower protections are among the broadest of any federal whistleblower law. For example, they protect individuals who are “about to report” a violation rather than only those who already have. Congressly clearly intended a liberal construction of the statute in favor of coverage. Gorsuch’s reading of the statute is ridiculously narrow, and clearly contravenes the intent of the legislation and common sense regardless of whether the agency’s interpretation is entitled to deference. One can only conclude that he picked his tortured reading because it allowed him to reach his desired goal. Generally, your defenses of narrow readings of legislation are correct, or at least cognizable. I find this one disturbing. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 29, 2018, 7:41pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/206 "2018-06-29T19:41:36Z")
Fuck Gorsuch. ---
**Author:** ![Try2B\_Comprehensive](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/try2b_comprehensive/32/65_2.png) [@Try2B\_Comprehensive](https://boards.straightdope.com/u/Try2B_Comprehensive)\ **Post date:** [June 29, 2018, 7:42pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/207 "2018-06-29T19:42:06Z")
My scolding of Democrats over lessons to be taken from this teaching moment: -Set up your primaries such that the voters clearly choose the nominee, rather than the pick being a foregone conclusion due to the superdelegates being packed by… Donors? Party bosses? I am not sure, but even if you want to argue that Hillary won fairly, there was a clear and demoralising appearance of a stacked set of delegates. -Pick a nominee whose success is clearly in their own right, rather than attributable to family connections. I get it, Hillary had a great resume on paper, but the appearance was that she rode Bill’s coattails, and we all saw how a pick like that can turn out with W. - Figure out what is the major malfunction with your voters staying home. Maybe because of the above considerations they feel like voting doesn’t even fucking matter, and so they don’t bother? Stop fucking up, Dems. You are getting owned by the racists, the rednecks, the theocrats, the liars and the uneducated (with a little help from the Russians). That should really burn and provoke you to do something useful. Maybe you can work on effectively communicating your message instead of letting Fox paint you as a bunch of villains? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 29, 2018, 7:49pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/208 "2018-06-29T19:49:41Z")
What, exactly, do you recommend we do to stop Fox News? And I swear, if you say “Be nicer!” I will reach right through this monitor and snatch you bald! ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 29, 2018, 8:21pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/209 "2018-06-29T20:21:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > A trailer is a vehicle. Federal law relating to motor carriers (and in fact US law generally) consistently defines a trailer as a vehicle. E.g., > The STAA’s whistleblower protections are among the broadest of any federal whistleblower law. For example, they protect individuals who are “about to report” a violation rather than only those who already have. Congressly clearly intended a liberal construction of the statute in favor of coverage. > > Gorsuch’s reading of the statute is ridiculously narrow, and clearly contravenes the intent of the legislation and common sense regardless of whether the agency’s interpretation is entitled to deference. One can only conclude that he picked his tortured reading because it allowed him to reach his desired goal. > > Generally, your defenses of narrow readings of legislation are correct, or at least cognizable. I find this one disturbing. I find it infuriating (could you guess). I refuse to quibble semantic bullshit when discussing someone who is piece of shit - and that is how I view Gorsuch - who should not be on the Court anyway, except for McConnell’s (another piece of shit)lying crooked partisan bullshit. As for any new appointments, NO. HELL NO. Trump is at the center of criminal investigations. Obstruction is the very least of them. If Obama was blocked for the bullshit excuse of “because elections” then Trump damn sure should not get to make any “BECAUSE TREASON WITH RUSSIA” No more legalistic semantics bullshit. He and his buddies are criminals. Traitors. ---
**Author:** ![Try2B\_Comprehensive](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/try2b_comprehensive/32/65_2.png) [@Try2B\_Comprehensive](https://boards.straightdope.com/u/Try2B_Comprehensive)\ **Post date:** [June 29, 2018, 8:23pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/210 "2018-06-29T20:23:49Z")
The answer to speech, luci, is more speech. There is no stopping Fox or any other loudmouth. I want the Dems to do a better job of defining themselves and pushing back without becoming reactive. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 29, 2018, 8:25pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/211 "2018-06-29T20:25:57Z")
> [@Try2B\_Comprehensive](#): > > The answer to speech, luci, is more speech. There is no stopping Fox or any other loudmouth. I want the Dems to do a better job of defining themselves and pushing back without becoming reactive. I just wish they’d fight, dammit. ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [June 29, 2018, 8:25pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/212 "2018-06-29T20:25:57Z")
> [@The\_Peyote\_Coyote](#): > > I think, asahi, that we need to hold a second Constitutional Convention and revise it. Oh, God, no. The crap that would come out of that would be disastrous. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 29, 2018, 8:28pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/213 "2018-06-29T20:28:14Z")
> [@Try2B\_Comprehensive](#): > > The answer to speech, luci, is more speech. There is no stopping Fox or any other loudmouth. I want the Dems to do a better job of defining themselves and pushing back without becoming reactive. And how does that definition find its way to the eyes and ears of the fox news viewer? ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [June 29, 2018, 8:31pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/214 "2018-06-29T20:31:20Z")
Rich celebrities pool their money and buy advertising on Fox News shows? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 29, 2018, 8:32pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/215 "2018-06-29T20:32:20Z")
> [@Slash1972](#): > > Rich celebrities pool their money and buy advertising on Fox News shows? Sith lord Darth Soros maybe? 🆒 ---
**Author:** ![Sinaptics](https://avatars.discourse-cdn.com/v4/letter/s/278dde/32.png) [@Sinaptics](https://boards.straightdope.com/u/Sinaptics)\ **Post date:** [June 29, 2018, 8:33pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/216 "2018-06-29T20:33:26Z")
> [@SteveG1](#): > > If Obama was blocked for the bullshit excuse of “because elections” then Trump damn sure should not get to make any “BECAUSE TREASON WITH RUSSIA” > > No more legalistic semantics bullshit. He and his buddies are criminals. Traitors. I want to see someone tell Trump this to his face in a presidential debate. Call the bastard a traitor to his face and try to let him explain that the Trump tower meeting really wasn’t collusion. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 29, 2018, 8:35pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/217 "2018-06-29T20:35:19Z")
> [@Sinaptics](#): > > I want to see someone tell Trump this to his face in a presidential debate. Call the bastard a traitor to his face and try to let him explain that the Trump tower meeting really wasn’t collusion. I want it too… with Meuller’s boys waiting off to the side with a warrant and handcuffs. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 29, 2018, 8:58pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/218 "2018-06-29T20:58:15Z")
> [@Slash1972](#): > > Rich celebrities pool their money and buy advertising on Fox News shows? I don’t know how rich he is, and I don’t know if it is his money or HBO’s, but [John Oliver has been doing that](https://www.thewrap.com/catheter-cowboy-john-oliver-hannity-trump-iran/). I don’t know how effective it has been. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [June 29, 2018, 9:04pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/219 "2018-06-29T21:04:07Z")
Could ads be just blatant lies about the President? Like “Trump said he would build a wall, but he is actually removing most of the wall that’s already there!” and then show some people removing a wall. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2018, 9:08pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/220 "2018-06-29T21:08:17Z")
> [@Really\_Not\_All\_That\_Bright](#): > > A trailer is a vehicle. Federal law relating to motor carriers (and in fact US law generally) consistently defines a trailer as a vehicle. E.g., > The STAA’s whistleblower protections are among the broadest of any federal whistleblower law. For example, they protect individuals who are “about to report” a violation rather than only those who already have. Congressly clearly intended a liberal construction of the statute in favor of coverage. > > Gorsuch’s reading of the statute is ridiculously narrow, and clearly contravenes the intent of the legislation and common sense regardless of whether the agency’s interpretation is entitled to deference. One can only conclude that he picked his tortured reading because it allowed him to reach his desired goal. > > Generally, your defenses of narrow readings of legislation are correct, or at least cognizable. I find this one disturbing. I don’t dispute that a trailer is a vehicle. I dispute that Alphonse Maddin was fired for refusing to operate that vehicle. That’s not a question of “narrrow.” Maddin was fired for violating company policy by abandoning his load while under dispatch. He was not fired for refusing to operate his trailer vehicle. He was not fired for reporting his vehicle’s safety issue. The statute says that an employee may not be fired if: > [@49 U.S. Code § 31105](#): > > (A)(1)(b)(ii) > …the employee refuses to operate a vehicle because… > the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition. That’s not why he was fired. He was fired for leaving the scene. (Ironically, perhaps, for “operating” when he was told not to.) That’s really just not “operating,” and the only reason an observer would twist “refusal to operate,” to cover this conduct is, in my opinion, the recognition that you have a very sympathetic truck driver and a bunch of asshole employers. If we imagine a situation in which the precise same language is in play, but the end targets reversed – for example, if the trucking company claimed THEY had “refused to operate” by sending equipment that could have helped him away, I have little doubt that the same crowd of people here would be furiously announcing that the rucking company didn’t refuse to operate at all: they operated, and screwed the guy. The difference is, of course, that they’d be right in that hypothetical. [Previous page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=10) [Next page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=12)