# 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:** 12
**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, 9:45pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/221 "2018-06-29T21:45:39Z")
> [@k9bfriender](#): > > And how does that definition find its way to the eyes and ears of the fox news viewer? Scores of picketers, outside every church in America, every Sunday from now until election day. They wanna politicize their religion? Ok! ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/222 "2018-06-29T21:55:52Z")
> [@Try2B\_Comprehensive](#): > > Scores of picketers, outside every church in America, every Sunday from now until election day. They wanna politicize their religion? Ok! This is the best plan in the world. Literally nothing could possibly go wrong by executing it. ---
**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, 10:13pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/223 "2018-06-29T22:13:02Z")
What a great TV movie it would have made! The brave truck driver who faced death rather than abandon the private property of the employer! Friend **Bricker** will need a box of hankies for that scene where he says goodbye to his family and urges them to support and console his heartbroken boss! I’m seeing “Judge Judy” Pirro in a cameo role as the meth-addled truck plaza hooker… ---
**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, 11:09pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/224 "2018-06-29T23:09:42Z")
> [@SteveG1](#): > > My rebuttal is “no duty to fucking die for the company”. How’s that? That’s not the law he was using to protest his firing, though. It’s pretty clear me me that you think the two judges other than Gorsuch (Murphy and McHale?) saw he had no duty to fucking die for the company, and so they wanted to vindicate that principle when they ruled. But they were’t supposed to decide if he had a duty to die for the company. They were supposed to decide if he was fired for refusing to operate unsafe equipment. If that exact language were pointed in the other direction, so that, let’s pretend, he COULD HAVE been legally fired for refusing to operate, and the company said: “We’re firing you for refusal to operate when you drove away,” what would be you reaction then? I’m pretty sure you’d indignantly point out he didn’t refuse to operate by driving away, and he had no duty to stay and die for the fucking company. Isn’t that true? ---
**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, 11:23pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/225 "2018-06-29T23:23:35Z")
> [@elucidator](#): > > What a great TV movie it would have made! The brave truck driver who faced death rather than abandon the private property of the employer! Friend **Bricker** will need a box of hankies for that scene where he says goodbye to his family and urges them to support and console his heartbroken boss! > > I’m seeing “Judge Judy” Pirro in a cameo role as the meth-addled truck plaza hooker… Of course you are. But again, and like **SteveG1** , you focus on the everything but the text of 49 USC § 31105. The problem is that the text of § 31105 is what the driver was claiming prevented him from being fired. I feel like you’re saying, “Since firing him was a gross injustice, I want judges to bend their interpretation to help him. I don’t particularly care what the statute says: I want the judge to do the right thing.” ---
**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, 11:42pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/226 "2018-06-29T23:42:43Z")
Well, would _you_ do it? Advocate to the best of your ability, without hesitation, that his man should have sacrificed himself for his employer’s property? Widow his wife, orphan his children for people who don’t give a rat’s if he lives or dies? Devil has plenty of lawyers. Doesn’t need you. ---
**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, 11:53pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/227 "2018-06-29T23:53:02Z")
> [@elucidator](#): > > Well, would _you_ do it? Advocate to the best of your ability, without hesitation, that his man should have sacrificed himself for his employer’s property? Widow his wife, orphan his children for people who don’t give a rat’s if he lives or dies? > > Devil has plenty of lawyers. Doesn’t need you. Absolutely not. But I would have advocated for the proposition that the company has a right to fire their employees for any reason at all, except reasons that the law forbids, and in this case the law doesn’t forbid it. So as an advocate for TransAm, I’d be perfectly entitled to argue that they had every legal right to fire Alphonse Maddin. The law did not forbid it. As an advocate for Maddin, of course, I’d argue differently. As a judge, I’d apply the law as written, without favoring either TransAm or Maddin, but just apply the facts to the written law in as neutral a manner as I could achieve. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 12:17am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/228 "2018-06-30T00:17:11Z")
The law does not forbid his boss from pressuring him to risk his life for the company? You OK with that? ---
**Author:** ![Tamerlane](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tamerlane/32/7602_2.png) [@Tamerlane](https://boards.straightdope.com/u/Tamerlane)\ **Post date:** [June 30, 2018, 12:19am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/229 "2018-06-30T00:19:22Z")
> [@Bricker](#): > > As an advocate for Maddin, of course, I’d argue differently. How? What would be the different legal argument you would use to defend Maddin that you think would have prevailed? If you thought( assuming you knew the predilections of these particular judges )Maddin might be more likely to be exonerated if you used the argument his counsel actually did, would you suggest it even though it would violate your personal judicial philosophy? ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [June 30, 2018, 12:27am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/230 "2018-06-30T00:27:32Z")
> [@elucidator](#): > > The law does not forbid his boss from pressuring him to risk his life for the company? It really does, of course. That’s the import of the use of the terms “serious injury” and “hazardous” and “safety” in the section of the U.S. Code previously quoted. If the law supported employers in pressuring employees to risk their lives, there would be no mention of these conditions in the Code. > [@](#): > > Originally Posted by 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. I notice that Bricker has avoided responding to xenophon41’s response to him, even though Bricker has posted here after that response appeared: > [@xenophon41](#): > > … 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. … ---
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [June 30, 2018, 12:34am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/231 "2018-06-30T00:34:38Z")
> [@Just\_Asking\_Questions](#): > > You’re disgusting! People’s live could hang in the balance of the decision, at least, the rights to control their lives, and you’re debating which size of bottle of booze you’re going to bet. Come out of your gilded tower, you insensitive fuck. > > You’re Randolph and Mortimer Duke, betting a dollar that they can ruin a man’s life. Jesus Fuck. You may have disagreements with **Bricker** and/or **Sunny Daze** over certain things, but over this? They’re making a modest bet over the timing of a political event. That’s it. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 12:35am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/232 "2018-06-30T00:35:41Z")
> [@](#): > > I notice that Bricker has avoided responding to xenophon41’s response to him… **Xeno** makes my point better than I did. Shoulda just QFT and shut up. (You da bomb, **Xeno**!) ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [June 30, 2018, 12:48am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/233 "2018-06-30T00:48:48Z")
> [@elucidator](#): > > **Xeno** makes my point better than I did. Shoulda just QFT and shut up. (You da bomb, **Xeno**!) No, you very definitely should NOT shut up. But I do look forward to Bricker, eventually, responding to the excellent points made by xenophon41. Clearly the trucker was fired because the company wanted him to guard the load (in the disabled trailer), and he did not do so. If the equipment needed to accomplish that assignment was defective in such a way as to provide a “reasonable apprehension of serious injury to the employee,” as was certainly the case with a broken heater in sub-zero weather conditions, then the firing of the employee for declining to operate that defective equipment was unlawful. ---
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [June 30, 2018, 1:31am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/234 "2018-06-30T01:31:22Z")
I don’t mind shutting up, if someone has to. Didn’t have much to say anyway. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 1:44am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/235 "2018-06-30T01:44:44Z")
Maybe we wouldn’t be certain if you were speaking or not? Schrödinger’s chat. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2018, 1:59am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/236 "2018-06-30T01:59:37Z")
> [@xenophon41](#): > > 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. The bestest is a legal argument that says, “Here’s what the words of the stature are, and here is how they apply.” > [@](#): > > 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. They did not, nor did the parties. And it IS an expansive reading, because in no normal conversation does sitting in the truck waiting constitute “operating,” in a stronger way than actually driving it does. And here’s the easiest way to demonstrate your flexibility with the word: suppose dispatch had ordered him to leave the truck and walk to safety. And he decided it was too dangerous and stayed, shivering, in the truck. When the company fired him for “operating” his truck without authorization, would you agree that this was a fair description? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 2:06am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/237 "2018-06-30T02:06:56Z")
> [@Bricker](#): > > …n no normal conversation does sitting in the truck waiting constitute “operating,” in a stronger way than actually driving it does… Who said anything about “stronger”? And why would it matter more than “pretty much the same”? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2018, 2:17am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/238 "2018-06-30T02:17:47Z")
> [@elucidator](#): > > Who said anything about “stronger”? And why would it matter more than “pretty much the same”? Because if you’re arguing that a word meansX, and I show stronger arguments that it means Y, that’s a good reason to abandon X. ---
**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 30, 2018, 4:11am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/239 "2018-06-30T04:11:07Z")
> [@Bricker](#): > > Because if you’re arguing that a word meansX, and I show stronger arguments that it means Y, that’s a good reason to abandon X. Nope. Not unless “Y” is strictly prescribed in the statute. Which it is not. And in what sense is performing _any_ function on direct instruction from your employee not an “operation” in the strictest sense of job performance? The employer instructed the employee to “wait” with the trailer, without apparently specifying what safe harbor the employee should utilize to do so. Which left two choices of company equipment: the failed trailer, which was entirely unprotected from the elements, or the truck itself, with a malfunctioning heater. Both of these equipments being unsuitable and unsafe for “waiting for the repair crew” in the specific environment. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 30, 2018, 6:56am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/240 "2018-06-30T06:56:26Z")
See what unions and socialism have done! Nowadays, employees don’t feel any duty towards their benefactors! Why, who knows but that the repair team might have reached him long before he actually froze! OK, maybe a toe or two… But that’s employee of the month, right there! (Gotta be a missing piece here, no way can an employer even _suggest_ that an employee risk their lives in order to protect company property. Not even in the reign of Donald, of House Harkonnen, worst of his Name…) [Previous page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=11) [Next page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=13)