# 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:** 19\ **Page:** 14
**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, 11:49pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/261 "2018-06-30T23:49:47Z")
> [@k9bfriender](#): > > 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? > > 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? In that world, the answer is: look at the elements of the crime of murder, and then assess whether there is proof of each element. At no time do I say, “Well, the guy did a bad thing that isn’t really covered by any law, so I’ll fudge the text of the existing law a bit to cover it, so that Justice is done!” You offer up the history of OSHA. Why? The concept workplaces should be safe is a good one, but who has the power to write the specific laws? Congress. And Congress can write a law that empowers OSHA to make rules. But the rules should contain, in their text, their entirety. Look, here’s a simpler hypothetical: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends? Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says? Which one will deliver better results in terms of your preferred outcomes? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 1, 2018, 4:05am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/262 "2018-07-01T04:05:22Z")
I would be very surprised if Il Douche has pondered long and deep on the Constitutional basis for his immigration policies. He most likely prefers “strict constructionist” because it sounds like something hard-headed and stern. Got a nickel says he doesn’t know Learned Hand from Leonard Nimoy. He will pick the judge who tells him what he wants to hear. If there are two of those, he will pick the one who will most clearly flip the bird to his political enemies. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 1, 2018, 4:10am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/263 "2018-07-01T04:10:36Z")
> [@Sherrerd](#): > > _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. No, no, no. Judges can choose what method of interpretation they adopt. Yes, it’s true that judges seek the “true meaning of the law,” but some judges believe the true meaning is found not in the words, but in an extrapolation that also adopts concepts like “our evolving standards.” ETA: but let me repeat the question I asked above: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends? Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 1, 2018, 11:39am UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/264 "2018-07-01T11:39:48Z")
> [@Bricker](#): > > ETA: but let me repeat the question I asked above: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends? > > Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says? Considering how textualists tie themselves in knots to ignore “well regulated militia” in the Second Amendment, I really don’t think it makes a difference. ---
**Author:** ![BlankSlate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blankslate/32/80_2.png) [@BlankSlate](https://boards.straightdope.com/u/BlankSlate)\ **Post date:** [July 1, 2018, 1:14pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/265 "2018-07-01T13:14:57Z")
> [@Fear\_Itself](#): > > Considering how textualists tie themselves in knots to ignore “well regulated militia” in the Second Amendment, I really don’t think it makes a difference. Simply put, it’s a right wing majority and a left wing minority. Nonsense terms like “textualism” and “strict constructionism” are just a sop to the genteel fascists who prefer their favored forms of oppression be couched in pretty language. ---
**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:** [July 1, 2018, 1:54pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/266 "2018-07-01T13:54:45Z")
So if I run a iron plant, and want to fire a worker all I have to do is order him to jump into a vat of liquid metal and fire him when he doesn’t comply, unless there is a specific OSHA requirement that says that employees can not be fired for refusing to jump into vats of liquid metal? And if there is one, well than I can demand he drink drano or stand under a drill press (he’s not operating the drill press in an unsafe manner he’s just standing under it). Unless OSHA specifically lists every stupid thing I can think of ordering my employee to do I can fire him for cause. This kind of makes a mockery of employee rights, which I guess is the whole point, and a hint of what we can look forward to from decisions over the next decade. Welcome to the [Jungle](https://en.wikipedia.org/wiki/The_Jungle). ---
**Author:** ![Sinaptics](https://avatars.discourse-cdn.com/v4/letter/s/278dde/32.png) [@Sinaptics](https://boards.straightdope.com/u/Sinaptics)\ **Post date:** [July 1, 2018, 2:38pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/267 "2018-07-01T14:38:35Z")
I was just wondering if they’re one of the companies that take insurance policies out on their workers. That’d be a nice racket, eh? Order them into a situation where they can die, if they refuse, fire them. If not, profit! ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 1, 2018, 3:22pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/268 "2018-07-01T15:22:23Z")
> [@John\_Mace](#): > > 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. I fully realize it. I see it as “what’s good for the goose…” ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 1, 2018, 3:23pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/269 "2018-07-01T15:23:35Z")
> [@John\_Mace](#): > > If they were nice, they wouldn’t be politicians. They’d be something respectable, like lawyers. or gangsters:D ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 1, 2018, 3:28pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/270 "2018-07-01T15:28:58Z")
> [@elucidator](#): > > I would be very surprised if Il Douche has pondered long and deep on the Constitutional basis for his immigration policies. He most likely prefers “strict constructionist” because it sounds like something hard-headed and stern. Got a nickel says he doesn’t know Learned Hand from Leonard Nimoy. > > He will pick the judge who tells him what he wants to hear. If there are two of those, he will pick the one who will most clearly flip the bird to his political enemies. Trump doesn’t care about the law or the Constitution. He cares about Trump. Period. He wants people that share his dislike of “those people”, people that will give business (meaning HIM) free reign to do whatever they want, people who will be loyal only to him. People who will “justify” anything he wants to do, and lie for him. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 1, 2018, 3:31pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/271 "2018-07-01T15:31:59Z")
> [@Buck\_Godot](#): > > So if I run a iron plant, and want to fire a worker all I have to do is order him to jump into a vat of liquid metal and fire him when he doesn’t comply, unless there is a specific OSHA requirement that says that employees can not be fired for refusing to jump into vats of liquid metal? And if there is one, well than I can demand he drink drano or stand under a drill press (he’s not operating the drill press in an unsafe manner he’s just standing under it). Unless OSHA specifically lists every stupid thing I can think of ordering my employee to do I can fire him for cause. This kind of makes a mockery of employee rights, which I guess is the whole point, and a hint of what we can look forward to from decisions over the next decade. Welcome to the [Jungle](https://en.wikipedia.org/wiki/The_Jungle). This. Consider, many regulations and laws were the result of the Triangle Shirtwaist Company factory fire. 145 workers burned to death. It is remembered as one of the most infamous incidents in American industrial history, as the deaths were largely preventable–most of the victims died as a result of neglected safety features and locked doors within the factory building. The tragedy brought widespread attention to the dangerous sweatshop conditions of factories, and led to the development of a series of laws and regulations that better protected the safety of workers. Bricker’s answer would be “there are no laws against it so it’s all good”. ---
**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:** [July 1, 2018, 3:39pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/272 "2018-07-01T15:39:19Z")
For insight into the right-wing judicial perspective, see [Florida private schools’ curriculum downplays slavery, says humans and dinosaurs lived together](https://www.msn.com/en-us/news/us/florida-private-schools-curriculum-downplays-slavery-says-humans-and-dinosaurs-lived-together/ar-AAzpuF3?li=BBnbcA1) > [@](#): > > Some private schools in Florida that rely on public funding teach students that dinosaurs and humans lived together, that God’s intervention prevented Catholics from dominating North America and that slaves who “knew Christ” were better off than free men who did not. > [@](#): > > The books denounce evolution as untrue, for example, and one shows a cartoon of men and dinosaurs together, telling students the biblical Noah likely brought baby dinosaurs onto his ark. The science books, they added, seem to discourage students from doing experiments or even asking questions. > [@](#): > > The social studies books downplay the horrors of slavery and the mistreatment of Native Americans, they said. One book, in its brief section on the civil rights movement, said that “most black and white southerners had long lived together in harmony” and that “power-hungry individuals stirred up the people.” But don’t worry, there is a perfectly good explanation for why a fake version of history is being taught to the next generation of conservatives: > [@](#): > > The school’s science classes touch on evolution so students aren’t “sheltered in this little bubble,” he said, but administrators like textbooks that mostly teach what the Bible says. > > “We believe our way is correct,” he said. “We focus on creationism because that’s what we believe.” Belief trumps facts. Is that so difficult to understand? Yes, it can run into trouble when it comes into contact with a system of genuine intellectual rigor, such as the law is supposed to be. But hey, when popular sentiment amounts to a sea of cultivated ignorance demanding representation, surely that rigor can be made to give way to a fantasy perspective that results in satisfying legal decisions? Facts be damned! It is going to take a lot of effort and concentrated application of rhetorical trickery to ensure that someone is caught napping by it at every important juncture, but I am confident it can be done. Strap yourselves in for the Ignorance Revolution, folks! ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [July 1, 2018, 3:53pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/273 "2018-07-01T15:53:33Z")
“Belief” can be manipulated. "Beliefs’ can be made to change gradually over time, so the change can be imperceptible. “Beliefs” can be invented out of nothing. Facts are stubborn little things. They don’t change just cuz someone said so. ---
**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:** [July 1, 2018, 4:48pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/274 "2018-07-01T16:48:57Z")
> [@Bricker](#): > > In that world, the answer is: look at the elements of the crime of murder, and then assess whether there is proof of each element. At no time do I say, “Well, the guy did a bad thing that isn’t really covered by any law, so I’ll fudge the text of the existing law a bit to cover it, so that Justice is done!” > > You offer up the history of OSHA. Why? The concept workplaces should be safe is a good one, but who has the power to write the specific laws? Congress. And Congress can write a law that empowers OSHA to make rules. But the rules should contain, in their text, their entirety. > > Look, here’s a simpler hypothetical: should Trump appoint a judge who shares Trump’s views on immigration policy, AND believes that judges should have wide latitude to go beyond the text in the law to accomplish “good” ends? > > Or should Trump appoint a judge who shares Trump’s views on immigration policy but believes he has no choice but to follow the text of whatever the law says? > > Which one will deliver better results in terms of your preferred outcomes? I believe that judges should interpret the law in the way that does lead to the best outcomes. That doesn’t mean that they should just look to get those outcomes, but should instead, work within the framework to find a valid way of producing those outcomes. That the way that things can be interpreted to deal with situations that were not specifically covered by congress can be interpreted in more than one valid way is a feature, not a bug. I say it is a valid interpretation that opertinag of equipment should cover any actions the company asks him to take, not specific to operating a specific piece of equipment defined by the company. It is also a valid interpretation to use the pendatic interpretation that equipment refers only to the truck. If you are given the choice of two valid interpretations, and one says that a company can make you choose between your job and your safety, and the other valid interpretation says that a company may not make you choose between your job and your safety, I would choose the latter, as did the first two judges who looked at the case. Gorsuch then went to look at the case, saw that there there were valid interpretations that other judges had made, and instead, chose to go with the valid interpretation that means that a company may require someone to risk their life to keep their job. It is that decision, even though it can be defended as being a valid interpretation of the law, that makes his judgement suspect. You keep saying “go beyond the text”, but what you really mean is “go beyond what I (bricker and conservatives who agree with bricker) think that the text should mean”. Others have valid interpretations that the text should mean something else. Trump will appoint someone who will find a way of interpreting the text to mean what they want it to mean. Will they go beyond the text? Maybe, I wouldn’t put it past this administration to pick judges who don’t even try to justify their reasoning. But I disagree with your assertion that taking a valid interpretation that gives better outcomes and is more in the spirit of the purpose of a law is inferior to taking a valid interpretation that provides worse outcomes and is completely defeating the spirit of the law. And finally, it comes down to what is good. We disagree. That’s why we have elections. That’s why these judges are appointed by elected officials. Now, our democracy is in a crisis right now, where what is “good” according to the party in power is giving more power and wealth to the wealthy and powerful, further marginalizing those already left behind by our society, empowering corporations to have more control over their employee’s lives, and turning away from the responsibilities that previous generations readily accepted of being a world leader. If those elected fairly in free elections want to change this nation into a xenophobic backwater with a failed economy run by oligarchs, then that’s what we will get, and judges will be appointed that will further those ends. That is, IMHO what is happening right now, and I am not saying that it is violating the constitution or any law, just that it is violating what we represented ourselves as a nation for decades to the world and to the people of the country. So, yeah, trump will be appointing judges just as you describe, and I can only hope that they actually do attempt to keep themselves within the framework of the laws, giving valid justifications for their decisions, rather than just making the decision that trump wants them to make, regardless of what the law and constituion say. Can you agree that there is a difference between what “activist” judges have done in interpreting existing law in a way that is favorable to the benefit of society, and simply making up unjustifiable rulings to suit the president’s needs? The solution, as you have said, is to vote, and I agree with that. But that is not the only, nor the best solution. The better solution is to convince others of the rightness of your cause, and to get them to vote the same way. I will continue to advocate that we should continue to be (or maybe need to go back to being) a superpower in the world that encourages stability, peace, and economic growth for all people, not just those who already are well to do. YMOV. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 2, 2018, 3:32pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/275 "2018-07-02T15:32:57Z")
> [@k9bfriender](#): > > I believe that judges should interpret the law in the way that does lead to the best outcomes. > > That doesn’t mean that they should just look to get those outcomes, but should instead, work within the framework to find a valid way of producing those outcomes. That the way that things can be interpreted to deal with situations that were not specifically covered by congress can be interpreted in more than one valid way is a feature, not a bug. > > I say it is a valid interpretation that opertinag of equipment should cover any actions the company asks him to take, not specific to operating a specific piece of equipment defined by the company. It is also a valid interpretation to use the pendatic interpretation that equipment refers only to the truck. If you are given the choice of two valid interpretations, and one says that a company can make you choose between your job and your safety, and the other valid interpretation says that a company may not make you choose between your job and your safety, I would choose the latter, as did the first two judges who looked at the case. Gorsuch then went to look at the case, saw that there there were valid interpretations that other judges had made, and instead, chose to go with the valid interpretation that means that a company may require someone to risk their life to keep their job. It is that decision, even though it can be defended as being a valid interpretation of the law, that makes his judgement suspect. The problem with this approach is that not everyone agrees on what “the best outcome,” is. If Judge Smith believes “the best outcome,” is saving the lives of the unborn babies murdered by abortion, then perhaps he’ll make a valid interpretation that the “life” interest protected by the Fifth Amendment and the Fourteenth Amendment extends to the unborn: not just leaving the abortion to the states, in other words, but saying that no state can constitutionally even permit abortions. > [@](#): > > The solution, as you have said, is to vote, and I agree with that. But that is not the only, nor the best solution. The better solution is to convince others of the rightness of your cause, and to get them to vote the same way. I will continue to advocate that we should continue to be (or maybe need to go back to being) a superpower in the world that encourages stability, peace, and economic growth for all people, not just those who already are well to do. YMOV. Sure, but if you can cobble together a majority of legislators and pass laws permitting abortion, only to find that the law is overturned by Justice Smith and four like-minded jurists, then what? In my ideal world, though, Smith might be equally convinced of the good outcome of saving the unborn, but recognize that, unfortunate though it may be, that abortion is simply not an area in which the Constitution gives the federal government regulatory authority. So whatever else he did, he’d leave it to the states to permit, or not, and your votes on the issue would actually matter. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 2, 2018, 4:42pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/276 "2018-07-02T16:42:04Z")
Its not just one thing, Counselor, it is an array of efforts to use their power to ensure their power. Not standing athwart Progress, but pushing it back. Not simply interpreting the Constitution to their preference, but “valid neutral justifications” that are not valid, neutral or justified. It is the shambles of Kurt Kobach’s campaign to “correct” voter registrations and access. Power to the people. If the vast majority of the people vote to turn themselves over to an authoritarian regime, that is their right. Did they? Can you point to convincing evidence that a solid majority of the American people support the agenda being thrust upon us? I doubt even your estimable powers of rationalization is up to that task. To your credit, you don’t even try, you move the subject to areas you are more comfortable with. If the Republicans had won the popular vote by three million, it would still be a situation that calls for compromise and accommodation. But the Republican notion of compromise is to demand all the power and settle for most. Your Party has left you, it is not Bill Buckley or Barry Goldwater, it is Dinesh D’Sewer and Louis Goober. A tiger cannot change his stripes, but a man can change his mind. And that moment has arrived. ---
**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:** [July 2, 2018, 6:23pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/277 "2018-07-02T18:23:52Z")
> [@Bricker](#): > > The problem with this approach is that not everyone agrees on what “the best outcome,” is. > > If Judge Smith believes “the best outcome,” is saving the lives of the unborn babies murdered by abortion, then perhaps he’ll make a valid interpretation that the “life” interest protected by the Fifth Amendment and the Fourteenth Amendment extends to the unborn: not just leaving the abortion to the states, in other words, but saying that no state can constitutionally even permit abortions. And that is why we vote. > [@](#): > > Sure, but if you can cobble together a majority of legislators and pass laws permitting abortion, only to find that the law is overturned by Justice Smith and four like-minded jurists, then what? > > In my ideal world, though, Smith might be equally convinced of the good outcome of saving the unborn, but recognize that, unfortunate though it may be, that abortion is simply not an area in which the Constitution gives the federal government regulatory authority. So whatever else he did, he’d leave it to the states to permit, or not, and your votes on the issue would actually matter. It is not laws that permit abortion. What kind of law would you think that would be? There are no laws that permit behavior, only laws that forbid it, so your example is meaningless. And how would a court overturn a law that permitted behavior, anyway? A better example would be that a bunch of states had outlawed abortion, and then a case was taken to the supreme court, where they found the law unconstitutional, and restricted the state government’s authority to invade a person’s privacy and interfere with their medical care. Then decades later, someone is appointed by an idealogue with an agenda who takes the first opportunity he can, after a state pases and enfocrces an antiabortion law and the case makes it way up to the supreme court, to rule differently. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [July 2, 2018, 7:13pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/278 "2018-07-02T19:13:32Z")
No, in a perfect world, the judge would have his own belief, but also realize he can’t push his religion on others, due to the First Amendment. He would realize that this is what the anti-abortion laws are: an attempt by Catholics and Evangelicals to use their religion to control the actions of others, and thus find the law unconstitutional based on the principle of religious freedom. But the reality we are seeing is that the last two judges were appointed specifically because they believe a certain way on the issue, and were willing to vote that way. Sure, they will cite some textualist principle, but it’s really about their religious belief, and allowing it to be forced on others. I actually found out my religious mom is pro-choice, but just doesn’t call it that, because she’s been taught that Christians should be pro-life. But she does believe she doesn’t have a right to tell a mother whether to abort or not. She thinks pro-life just means “anti-abortion,” when you can actually be pro-choice and oppose abortion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 2, 2018, 11:45pm UTC](https://boards.straightdope.com/t/justice-kennedy-retiring/816857/279 "2018-07-02T23:45:52Z")
> [@k9bfriender](#): > > It is not laws that permit abortion. What kind of law would you think that would be? There are no laws that permit behavior, only laws that forbid it, so your example is meaningless. Of course, you’re right. A hasty and inaccurate phrase on my part. I was trying to convey a case where a given state passes a law to forbid abortion, and a second state does not; I hastily describe that second state as having laws that permit abortion, when the more accurate phrase would be to observe,as you do, that they do not forbid abortion. > [@](#): > > And how would a court overturn a law that permitted behavior, anyway? Depends on what the law said. A law that purported to permit police to search anyone wearing a “Resist Trump” T-shirt based on the legislature’s belief that such people are up to no good would be overturned as violative of the Fourth Amendment. > [@](#): > > A better example would be that a bunch of states had outlawed abortion, and then a case was taken to the supreme court, where they found the law unconstitutional, and restricted the state government’s authority to invade a person’s privacy and interfere with their medical care. > > Then decades later, someone is appointed by an idealogue with an agenda who takes the first opportunity he can, after a state pases and enfocrces an antiabortion law and the case makes it way up to the supreme court, to rule differently. Sure. So that’s my example. But in “ruling differently,” that appointee could merely decide that the federal constitution is silent on the issue, or that the federal constitution’s “deprived of life” prohibition protects the unborn. [Previous page](https://boards.straightdope.com/t/justice-kennedy-retiring/816857.md?page=13)