# 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:** 13
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [June 30, 2018, 1:44pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/241 "2018-06-30T13:44:42Z")
Lovely country we’re in where a police officer keeps his job after shooting an unarmed black kid, because he felt threatened, while a truck operator gets fired for refusing to freeze to death on the job. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 30, 2018, 2:45pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/242 "2018-06-30T14:45:15Z")
> [@Bricker](#): > > 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: > > 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. He was fired because he didn’t want to freeze to death. I’m done with you and your “precise not precise” bullshit. ---
**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, 4:33pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/243 "2018-06-30T16:33:37Z")
> [@SteveG1](#): > > He was fired because he didn’t want to freeze to death. I’m done with you and your “precise not precise” bullshit. OK. What law prevents the company from firing a guy because he doesn’t want to freeze to death? Be specific. ---
**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, 4:38pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/244 "2018-06-30T16:38:10Z")
> [@Buck\_Godot](#): > > Lovely country we’re in where a police officer keeps his job after shooting an unarmed black kid, because he felt threatened, while a truck operator gets fired for refusing to freeze to death on the job. Yes, yes, terrible. But again: WHAT LAW, specifically, are you saying protected the driver? Can you just admit that you want a judge who will say, “I don’t need a law here: I’m going to do the right thing and protect a driver who was fired because he didn’t want to risk freezing to death?” ---
**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, 4:44pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/245 "2018-06-30T16:44:30Z")
> [@xenophon41](#): > > 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. OK. So answer my question from above: 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. Then the company fired him for “operating” his truck without authorization, contrary to their written policy. If he challenged that and you were the arbiter, would you agree that this was a fair description of what he did? That the policy prohibiting “operating” the truck without authorization applied to staying in the truck and awaiting rescue? ---
**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 30, 2018, 7:07pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/246 "2018-06-30T19:07:35Z")
Better to focus on the actual case than on a bunch of unnecessary hypotheticals. This is an interesting case of Plato’s " A hand is only a hand when it is functioning as a hand." Or, " a doctor is only a doctor when he functions as a doctor." Chop off the hand or catch the doctor doing something while off duty and we are in the strange rhetorical place of the hand not being a hand, the doctor not a doctor. Here, it is two states for the same object. It functions safely as a vehicle, but is not safe as a guard shack. An unscrupulous rhetoritician would notice how one could straddle this ambiguity and confuse an argument without strictly resorting to dishonesty. If techniques like these were used for the forces of good, why, who knows how those forces would be corrupted. ---
**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 30, 2018, 7:51pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/247 "2018-06-30T19:51:37Z")
> [@Bricker](#): > > Yes, yes, terrible. > > But again: WHAT LAW, specifically, are you saying protected the driver? > > Can you just admit that you want a judge who will say, “I don’t need a law here: I’m going to do the right thing and protect a driver who was fired because he didn’t want to risk freezing to death?” We have already talked about the law that protected the driver. It was the law that the driver won the initial court cases on. That a different judge made the decision to interpret the law in a way that undermines the entire reason for the law, while other judges made just as valid an interpretation of the text of the law that did not undermine the reason for the law, does not make the decision that undermines the reason for the law superior. It was only his position that made his decision binding, not his logic. And that is the concern, that he has been given an even higher position, in which he can twist around laws to mean what he interprets them to mean, even if undermines the point of the law. With your hypotheticals, you even show that turning the law around and twisting its meaning means that you have to come up with a different way to twist it every time in order to justify firing someone for not obeying a company policy that could have resulted in their death. I get that you interpret it one way, and therefore, that is the right way, and anyone who interprets it that way is right, and anyone who interprets it another way is not only wrong, but a misguided attempt to thwart democracy. I disagree with both your interpretation, and your conclusions about those who would interpret it differently. It doesn’t matter what the wording of the policy was vs the exact details of what he did were. The point of the law is to prevent employers from being able to put employees in the position to choose between their jobs and their lives, and should have been interpreted in that fashion. That you can use semantics to weasel your way into a position where the employer may demand that an employee risk their lives or their jobs just means that you are using semantics to give the power of life and death to a company. It does not mean that you are interpreting the words correctly, only that you are interpreting them the way would like them to be. ETA: My interpretation would be that “operations” are anything that your employer asks you to do, with or without any equipment. So, in your hypothetical, where the company orders him to leave the truck and walk in the cold, they are asking him to operate unsafely. ---
**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, 8:33pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/248 "2018-06-30T20:33:15Z")
> [@k9bfriender](#): > > With your hypotheticals, you even show that turning the law around and twisting its meaning means that you have to come up with a different way to twist it every time in order to justify firing someone for not obeying a company policy that could have resulted in their death. > [@](#): > > It doesn’t matter what the wording of the policy was vs the exact details of what he did were. The point of the law is to prevent employers from being able to put employees in the position to choose between their jobs and their lives, and should have been interpreted in that fashion. If the exact wording truly doesn’t matter, then judges can simply decide — as you have done — what they think the true meaning on the law s. I have no doubt you find that agreeable when the judge agrees with you. But when he doesn’t, and you have established it’s entirely proper from him to disregard the exact words and focus on what he perceives the meaning to be, what is your recourse? > [@](#): > > …“operations” are anything that your employer asks you to do, with or without any equipment. So, in your hypothetical, where the company orders him to leave the truck and walk in the cold, they are asking him to operate unsafely. So now imagine a world where the “exact words,” are “Operation of a company truck without authorization is prohibited.” And imagine Congress never passed the “refuse to operate” law we’re discussing here. In that world, the company orders him to lock the truck and walk for help. He decides it’s too dangerous and stays in the truck to wait. The company fired him for “operating the truck without authorization.” He protests, and they agree to settle it by arbitration. You are the arbiter. Did you agree with the company? Or the trucker who says, “Are they nuts? I didn’t ‘operate’ it. I stayed inside it to avoid freezing!” ---
**Author:** ![WolfpackJeep](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpackjeep/32/2921_2.png) [@WolfpackJeep](https://boards.straightdope.com/u/WolfpackJeep)\ **Post date:** [June 30, 2018, 8:55pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/249 "2018-06-30T20:55:41Z")
> [@Rick\_Kitchen](#): > > Oh, God, no. The crap that would come out of that would be disastrous. There are some groups – particularly those that think “religious freedom” is endangered – who are actively pushing for a convention. I wonder which would come out of a constitutional convention with more rights – corporations, or fetuses? ---
**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 30, 2018, 9:11pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/250 "2018-06-30T21:11:46Z")
> [@Bricker](#): > > If the exact wording truly doesn’t matter, then judges can simply decide — as you have done — what they think the true meaning on the law s. > > I have no doubt you find that agreeable when the judge agrees with you. > > But when he doesn’t, and you have established it’s entirely proper from him to disregard the exact words and focus on what he perceives the meaning to be, what is your recourse? I’m not talking about the wording of the law, I am talking about the wording of the policy. That they used the wording of their policy to circumvent the reason for the law. If a policy puts someone’s life in danger, then the policy should not override someone’s ability to not put themselves in danger. Put it this way, if he had followed the policy and stayed with the truck, and died or suffered grievous injury as a result, would the company be liable? > [@](#): > > So now imagine a world where the “exact words,” are “Operation of a company truck without authorization is prohibited.” And imagine Congress never passed the “refuse to operate” law we’re discussing here. > > In that world, the company orders him to lock the truck and walk for help. He decides it’s too dangerous and stays in the truck to wait. The company fired him for “operating the truck without authorization.” He protests, and they agree to settle it by arbitration. You are the arbiter. > > Did you agree with the company? Or the trucker who says, “Are they nuts? I didn’t ‘operate’ it. I stayed inside it to avoid freezing!” Well, in this case, congress has never passed a law saying that employers cannot put their employees lives in danger, so, while I would think that the company was terrible, and I would be lobbying my congresscritters to pass a law that prevents employers from making someone choose between their lives and their jobs, there is no law that they broke. Go back a bit, and we didn’t have any sort of OSHA or labor safety laws at all. Kids were being crushed in textile factories on a daily basis, and people decided that that sort of thing shouldn’t happen, that employers shouldn’t have the power of life and death over their employees. This is the reason for laws the require that employers not require them employees to operate in unsafe manners. That the company had a policy that was worded in such a way as to allow them to circumvent the law is a problem with the policy, not the law. And someone who interprets the policy in a way that allows them to circumvent the law is not assisting our democratic processes. You can come up with all sorts of hypothetical worlds in which things would be different, and then point out that things are different, but that seems a pointless exercise. If we lived in a world where there were no laws against murder, and someone was murdered, would a judge be reaching by sentencing them to jail? Yes. If we lived in a world where murder is illegal, but someone says, “well I didn’t murder him, I just followed company policy to stab him in the face until he died.” would you consider it a reach to convict that person of breaking the law of murder? ---
**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, 9:26pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/251 "2018-06-30T21:26:05Z")
> [@Bricker](#): > > If the exact wording truly doesn’t matter, then **judges can simply decide — as you have done — what they think the true meaning [of] the law [is]**.\* > > I have no doubt you find that agreeable when the judge agrees with you. > But when he doesn’t, and you have established it’s entirely proper from him to disregard the exact words and **focus on what he perceives the meaning to be,** what is your recourse? _Every_ judge focuses on “what he perceives the meaning” to be and all judges focus on “what they think the true meaning of the law is.” As I think you know, Mr. Sophist. This picture you paint of judges _interpreting meaning_ (horrors!) is exactly and precisely what they do, and all they can do—given the fact that no human brain has access to “the true meaning of the law” (or to any other abstractions). All that any of us can do is perceive and interpret what we believe that meaning to be. As, again, I think you know. Perfectly well. > [@Try2B\_Comprehensive](#): > > Better to focus on the actual case than on a bunch of unnecessary hypotheticals. But that’s Bricker’s only option, here. As you point out: > [@Try2B\_Comprehensive](#): > > An unscrupulous rhetoritician would notice how one could straddle this ambiguity and confuse an argument without strictly resorting to dishonesty. Well, not _strictly_, maybe. But it comes pretty close. Too close to count as integrity, certainly. \*Bricker’s exact words were “what they think the true meaning on the law s”, which I have rendered here as “what they think the true meaning of the law is.” If Bricker actually meant “on” and “s” then I apologize for making the edit of what I assume are typos. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 30, 2018, 9:45pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/252 "2018-06-30T21:45:00Z")
> [@Bricker](#): > > OK. > > What law prevents the company from firing a guy because he doesn’t want to freeze to death? > > Be specific. I’ll be specific alright, How about the law of _Fuck anyone who is more interested in what the law might let them get away with, rather than whether someone dies and if they can get away with CAUSING IT_??? How about that “law”? Don’t waste my time. ---
**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, 10:02pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/253 "2018-06-30T22:02:08Z")
Meaning rests upon the law, as a building rests upon its foundation. Hence, “on”. “Of” implies derivation, which is false, since meaning is not _derived_ from the law, it is the law. One cannot imply any _difference_ between the meaning and the law, because that is absurd. The Scripture is the law. “Love thy neighbor as thyself” is the law. Noted theologian Rodney Dangerfield asks if the _meaning_ of the law is that he must go next door and jerk him off too. (Did you know that **Bricker** once had a Steel Cage Death Match with a professor of Semiotics and a noted deconstructionist literary critic? Rent them asunder, ten seconds flat.) ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 30, 2018, 10:24pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/254 "2018-06-30T22:24:33Z")
“The Senate shouldn’t conduct business cynically by bending to the majority’s will. Instead, it should follow Senate traditions and precedent. The #McConnellStandard was established with the last nominee and it should be observed today. Follow the McConnellStandard” – Senator Dianne Feinstein 😃 ---
**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, 10:34pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/255 "2018-06-30T22:34:11Z")
> [@elucidator](#): > > Meaning rests upon the law, as a building rests upon its foundation. Hence, “on”. “Of” implies derivation, which is false, since meaning is not _derived_ from the law, it is the law. One cannot imply any _difference_ between the meaning and the law, because that is absurd. > > The Scripture is the law. “Love thy neighbor as thyself” is the law. Noted theologian Rodney Dangerfield asks if the _meaning_ of the law is that he must go next door and jerk him off too. > > (Did you know that **Bricker** once had a Steel Cage Death Match with a professor of Semiotics and a noted deconstructionist literary critic? Rent them asunder, ten seconds flat.) 🆒 Okay, smart guy: now explain the “s.” ---
**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, 10:35pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/256 "2018-06-30T22:35:16Z")
> [@SteveG1](#): > > “The Senate shouldn’t conduct business cynically by bending to the majority’s will. Instead, it should follow Senate traditions and precedent. The #McConnellStandard was established with the last nominee and it should be observed today. Follow the McConnellStandard” – Senator Dianne Feinstein 😃 It’s a decent argument. It won’t do any good, but it’s a decent argument. ---
**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, 11:09pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/257 "2018-06-30T23:09:21Z")
> [@Sherrerd](#): > > 🆒 > > Okay, smart guy: now explain the “s.” Symbol of sibilance and susurration, snake’s speech, and the solemn sojourn of Sisyphus. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 30, 2018, 11:20pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/258 "2018-06-30T23:20:03Z")
> [@SteveG1](#): > > “The Senate shouldn’t conduct business cynically by bending to the majority’s will. Instead, it should follow Senate traditions and precedent. The #McConnellStandard was established with the last nominee and it should be observed today. Follow the McConnellStandard” – Senator Dianne Feinstein 😃 It’s ironic how the Democrats are claiming the Republicans are hypocrites on this and saying it with a straight face. Hey, I get it to a certain point. The Republicans are hypocrites. But you realize that you’re telling us we should do something that you recently told us we shouldn’t do, no? Plays well to the base, I guess, and maybe helps you in the primaries. ---
**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, 11:30pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/259 "2018-06-30T23:30:20Z")
So, they should be nicer? Or more honest? Can’t hardly be both. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 30, 2018, 11:37pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/260 "2018-06-30T23:37:15Z")
> [@elucidator](#): > > So, they should be nicer? If they were nice, they wouldn’t be politicians. They’d be something respectable, like lawyers. Like I said: “Plays well to the base, I guess, and maybe helps you [them] in the primaries.” [Previous page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=12) [Next page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=14)