If you want to be an ultra-strict textualist, far beyond Scalia or any other proponent of that philosophy, then that’s your business, but you’re going to make a parody of yourself.
But a strong “wives, obey your husbands”/“the man leads the family” vibe is not standard among American Catholics since the latter half of the 20th Century. I grew up Catholic and attended Catholic schools from kindergarten through undergraduate and I don’t recall that being a thing. Most people would associate that attitude more with some evangelical Protestant denominations. In short, to the extent people are judging Barrett’s religion, it’s her particular group (People of Praise), which IMHO would raise eyebrows just as much among standard Roman Catholics as “the left.”
I mean, have you noticed how many Catholics are already on the Supreme Court and their religion wasn’t a big deal in their confirmation hearings or the public debate on them? You can try to fit this into an Al Smith/JFK bigotry narrative but I don’t think it’ll fly.
Good for you. You are likely a better person than I.
I really am not forming any opinion about ACB as a person. I really couldn’t care less about her as a person. But I do find her extremely offensive, repugnant, whatever - as a prospective SCt Justice.
Well, actually, I suspect she is an intolerant, judgmental ideologue, who desires to be in a position where she can inflict her personal views on millions of people. And she wishes to personally profit from a horribly corrupt and unethical administration and process. So, I guess that does make her more repugnant to me than if she were just a private citizen.
But I have no interest in trying to persuade you that you should feel differently than you do.
[quote=“Wrenching_Spanners, post:298, topic:921092”]
You’re obviously not reading her statement. She explicitly commits to following the law regarding recusing herself, and asserts that she will avoid appearances of unfairness.
Unconvincing. You do realize that there is no law that requires a Supreme Court Justice to recuse, right?
The parody is the whole point.
The thing is, everyone is a textualist to some degree. Every Constitutional scholar–or English speaker for that matter–agrees that some parts of the Constitution are straightforwardly written, and that the meaning can be understood right from the text without any special analysis, and that any two people will likely come to the same understanding of meaning. So-called textualists don’t have a monopoly on that.
So it’s either:
- A matter of degree, with the degree dependent on the judgement of the scholar, not just the text. Said scholar would be hypocritical to call others “activists” or the like because they also used their own judgement to glean the meaning of ambiguous text.
- Not a matter of degree, and therefore taking an ultra-literalist approach. As you noted, such an approach is so laughable as to be indistinguishable from parody.
It’s very reminiscent of Biblical literalism. When you poke them enough, literalists will acknowledge that not every word is strictly literal. But they don’t have an answer why their judgment as to what’s literal vs. not is any more objective than anyone else’s.
If someone wants to say that their approach tends to follow the text more closely than others, that’s fine. They just don’t get to act as though they have some special approach. And if they’re using said approach as a fig leaf to cover their own “activism”, they should be called out as hypocrites.
You’re asking me to speculate? My guess is that it would start with revision to Brandenburg vs. Ohio and a decision that the act of inciting imminent lawless action has a different meaning in the world of online speech where a post can immediately reach thousands of people and spread virally to millions of people than it does in vocal speech. Indeed, a Washington Post columnist, Danielle Allen, made that argument last year.
My speculation is that the next step would be a recharacterisation of violence. “If you see an illegal immigrant, take him to the border and throw him over it” (made up quote) sounds like an incitement of violence to me, even if it’s not directed at a particular individual. Prove that actual harm was caused by such a statement, and then there’s an argument for convicting someone of a crime under a looser standard of inciting imminent lawless action. Expand that to harsh rhetoric against illegal immigrants and Bingo! you’ve got a restriction against free speech made through the judiciary rather than the legislature.
I hate conspiracy theories and I’ve just written one. On the other hand, we live in a world where cancel culture is a growing phenomenon, and political parties are shouting about their need to control the judicial branch of government. I’m not sure if I’m wrong to be paranoid, or if I’m not being paranoid enough.
So, you think that SCOTUS would just pick up and revisit this opinion?
Or would it be that laws are written that eventually make their way up to SCOTUS, and they determine whether the laws that other people have written past constitutional muster?
If the former, that’s just not how it works. If the latter, then that would not be SCOTUS writing law.
Is a law forbidding depictions of child abuse being upheld judicial activism, in you opinion
I think the former. Or at least, of the things that you have chosen to terrify yourself about.
So let’s consider your staement. Should I reject the opinions of roughly 50% of American voters, or the opinion of a vulgar, highly biased partisan who claims to be logical, but is basing his logic on his partisan beliefs, rather than offering any underlying evidence for his opinion?
You raise a very good point and I don’t believe that America in general, or the Democratic Party in general is anti-Catholic. I’ve read commentary that Barrett’s religion barely came up in the actual nomination hearings. But then I don’t believe that the majority of Americans, or even the majority of Democrats object to Barrett being a Supreme Court justice. I think there’s a section of left-wing Democrats who are trying to excoriate Barrett by any means possible. Their anti-Catholic stance is just a means for that excoriation - although it’s a quite unpleasant and prejudiced one. One that they would denounce if it was taken by Conservatives against Jews or Muslims.
As for the People of Praise cultist concept, I don’t think anyone could realistically categorise Barrett as a meek, unambitious, servile woman happy to take her place in the patriarchy. She is trying to get onto the Supreme Court after all.
I’m certainly not an expert on the subject of judicial recusal, but a 20 second Google search shows that Lexis Nexis has a section on their website discussing the topic, and that they cite five cases relevant to the legal issue. I’d expect Barrett, a former law professor and before that a Supreme Court clerk, to be able to assess the broader legal implications of whether she should recuse herself, even if there’s no particular statute related to Supreme Court justices.
Also note that any potential situation for recusal over a contested election result is completely speculative. Are you arguing that Barrett should not be confirmed because she didn’t provide a yes-no answer to a completely speculative open-ended question?
The soon-to-be newly constituted SCOTUS, wasting no time getting activist:
I think we can guess the projected outcome of this ruling. Completely contrary to the literal language of the Constitution.
I made no argument regarding ACB’s confirmation. I was merely pointing out that your use of her quote:
“I commit to you to fully and faithfully apply the law of recusal and part of that law is to consider any ‘appearances’ questions” — as in, even whether it might look to outsiders as though the judge couldn’t be fair, Barrett said.
as a guide to whether she will appropriately recuse is not the guarantee you appear to think it is. Committing to adhering to a non-existent law in no way convinces me that she will appropriately recuse. In fact, I find her language carefully crafted, which raises my suspicions all the more.
I agree with you. The US Constitution shouldn’t be viewed as a static legal statue, but rather as a set of principles - some defined in detail, but many defined vaguely. If a Constitutional principle is defined in detail, or if the judiciary has established detail on a principle through precedent, then that principle should generally be upheld. However, there are two situations where the judiciary should be careful before intervening. The first is when they take a vague principle, and then try to establish it as an absolute that has legal effect. If a non-explicit constitutional principle needs to have an explicit legal effect, then that effect should be enacted by the legislature. The judiciary should be applying existing rules to new situations. They shouldn’t be making up new rules. The second situation is when the judiciary makes a decision on a vague constitutional principle, but the legislature enacts legislation that disagrees with the judiciary’s decision. Judicial decisions made decades ago are used as modern-day precedents. Should those decade-old decisions override the decisions made by a modern-day legislature that’s interpreting constitutional principles by enacting them into law? No. The judiciary should apply laws, whether constitutional or legislative on a case-by-case basis. It shouldn’t seek to establish new laws.
Interestingly, you’ve just identified my issue with judicial activism, even if it’s a fairly repulsive subject. If a state in the early 1990’s had a statute forbidding the exchange of physical photographs depicting child abuse, then certainly the online exchange of digital photographs would be covered by that statute, even if it wasn’t originally written to cover digital photographs. However, what if the state didn’t have such a statute, because the exchange of physical photographs depicting child abuse was rare? The question then is whether the exchange of physical photographs depicting child abuse was ever prosecuted successfully, and under what statute it was prosecuted. If there was no prior law, and no prior conviction, then what would be the basis for the court to decide that the digital depictions of child abuse were illegal? There’s an argument that preventing child abuse is part of the greater good, and that shoehorning digital depictions of child abuse into some other statute is part of that greater good. That argument is judicial activism.
The issue is that judicial activism is rarely applied to something so stark as depictions of child abuse. Legislatures are fully capable of enacting new laws to cover new technology and enabling regulatory agencies to keep legal standards current with new technologies. But what happens when a segment of society decides it wants a change, and wants to enable that change through the judiciary? It doesn’t start at the Supreme Court. It starts with activists at the state level waiting for the right case that they can support on appeal and then drive through to the Supreme Court. And then the Supreme Court decides the law not based on precedent, but on what the majority of justices think is right based on their personal politics. You probably thought that was great when the Supreme Court decided gay marriage was legal. You’ll probably think it’s terrible if the Supreme Court decides abortion is illegal. I don’t think the Supreme Court should be deciding either circumstance. That’s the job of Congress. The Supreme Court should be interpreting existing law based on the way it’s been interpreted in the past, but applied to new situations. It shouldn’t be enacting new non-legislative laws.
SCOTUS grated cert on Trump’s appeal of a lower court ruling. That does have the effect of letting other lower courts know that they will decide the matter and other circuit courts should not deal with this same issue. Finality and all. And since there is an upcoming deadline on compiling the data it seems a worthy subject for expedited hearing at the highest court.
I have been using shorthand, and can see that it’s caused confusion. The question was whether not it is reasonable or respectable for Barrett to use the ‘I can’t talk about that because I might have to rule on a case concerning it’ dodge, on the topic of voter intimidation.
My argument is that it was not reasonable or respectable, when she was asked to comment on voter intimidation, to use the dodge. And this is because it is highly unlikely that some pro-voter-intimidation group might shepherd through the court system a case of people convicted of intimidating voters (under whatever laws they may have been prosecuted), with the goal of having the Supreme Court overturn the laws under which the intimidators were prosecuted, on the basis of what the group would hope to be a new ruling, finding that those “prosecute-intimidation-of-voters” laws were unconstitutional.
The reason it would be unlikely for such a case to come before the SCOTUS, I believe, is that the conduct presumably having been prosecuted, is not conduct that any person at all familiar with the Constitution would imagine would be found to be conduct that could not be prosecuted. Thus the laws under which the conduct was prosecuted would not possibly be considered, by any reasonable person, to be laws that might be ruled, by SCOTUS, as being unconstitutional. (Recall that the discussion involved such conduct as standing between voters and a polling place while holding a long gun.)
Again, what I am saying is that the climate in this nation is not yet at a level of acceptance of fascist intimidation, that there would arise a possibility that going to a polling place with a long gun and keeping legitimate voters from voting, would be seen as reasonable conduct. It is not conceivable–yet–that those convicted under whatever appropriate state or local laws of having intimidated voters, would be seen as having been unfairly prosecuted by laws that should be ruled (by SCOTUS) as unconstitutional.
Thus, it would have been proper and reasonable for Amy Coney Barrett to have refrained from using the ‘can’t talk about this as I may have to rule on it’ dodge on this particular topic.
That’s the long version.
The shorthand version I’d been using about this subject seems to have confused you; your remark about my supposedly having conflated ‘unconstitutional’ and ‘illegal’ displays a misunderstanding of the situation. Your claim, there, is incorrect; it may have been inspired by the confusion. I’ll try to avoid using the shorthand I’d been employing in this thread, on this topic.
It’s also an interesting case because the states with the highest percentages of undocumented immigrants includes “blue states” like California, New Jersey and Maryland but also plenty of “red” or “purple” states like Texas, Arizona, Georgia and Florida. Texas could well end up losing out on a Congressional seat during reapportionment under this change. So it’s not as clear-cut a Republican win if the court sides with the Administration, and potentially another case of Republicans shooting themselves in the foot.
This one is pretty awesomeful
The jail was not responsible for the guard’s actions because he was not doing his actual job. It is worth noting that Barrett was part of a 3 judge panel that ruled unanimously. The jail was run by the delightful Sheriff Dave Clarke, so, make of that what you will.
What does “cancel culture” have to do with passing laws? “Cancel Culture” is just “some entertainers who make jokes that are offensive against women and minorities are kind of unpopular now, though no one is ever able to find an example of one who’s out of work because of it”, it’s not the basis of any laws or even anything more serious than people deciding where to spend entertainment dollars. The alleged victims of today’s “cancel culture” seem to be much better off than victims of cancellation in the ‘good ol days’ like gay teachers who got canceled, or black parents who sent their kids to white schools, and better-or-even with the more minor victims of Conservative Cancellation like Janet Jackson or Sinead O’Connor.
The ruling appears to make it easier for employers to escape any liability for maintaining procedures or practices that make rape easier for employees to commit. (There are nuances in the ruling, of course.)
But it’s not exactly something that would make for a stirring pro-ACB commercial.
Also from your Salon link, a discussion of another Barrett ruling, this time in defense of men accused of sexual assault on college campuses:
It would go too far to claim that Barrett’s judicial philosophy is “boys will be boys,” but some of her rulings do lead one to wonder.