# What does SCOTUS have to base decisions on? **URL:** \ **Category:** Factual Questions\ **Created:** [May 31, 2009, 9:10am UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250 "2009-05-31T09:10:20Z")\ **Posts on this page:** 8\ **Page:** 2
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [June 1, 2009, 7:52pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/21 "2009-06-01T19:52:59Z")
**SaintCad**! Ignore everything written in the thread so far! Here is a simple definition of the judicial project, which I think is undergirding your question. Let’s say you have well-settled law that says: If A, then B. If X, then Y. As a judge, you are presented with a case, P. There are some ways in which P is like X. There are some ways in which P is like A. So ultimately, the job of a judge (any judge) is to decide whether P is more like A or X, and if the ways in which P is closer to one or the other are important or superficial. Once the judge figures this out, it becomes clear whether the result should be something akin to B or something closer to Y. Of course this is a lot harder in practice than in theory. But it’s the basic idea of what judges are trying to do. I think if you understand this paradigm, it will be easier for you to understand what the Supreme Court is doing. Because they’re just doing the same analysis, but (in the cases reported in the press, anyway) are a very sophisticated (some might say arcane) level. And of course, the Supreme Court has the final word. But they’re not really doing something all that different than lower courts, they just get to say “We know the law has been If A, then B, but we think that’s unconstitutional, so now, if A, then C.” –Cliffy, Esq. ---
**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 1, 2009, 8:05pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/22 "2009-06-01T20:05:26Z")
> [@Exapno\_Mapcase](#): > > Absolutely not true. Newspapers, broadsheets, books, pamphlets, letters, and all sorts of written communications were just as basic a part of the world of the framers as oral speech. Any examination of the process shows that they meant the first amendment to apply to written speech exactly as much as they did to spoken language. Of course, but that requires an originalist reading (thanks, **K\_G** - I always conflate those two). The _word_ speech does not generally encompass written language. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [June 1, 2009, 8:14pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/23 "2009-06-01T20:14:50Z")
> [@Cliffy](#): > > **SaintCad** > As a judge, you are presented with a case, P. There are some ways in which P is like X. There are some ways in which P is like A. So ultimately, the job of a judge (any judge) is to decide whether P is more like A or X, and if the ways in which P is closer to one or the other are important or superficial. Once the judge figures this out, it becomes clear whether the result should be something akin to B or something closer to Y. To add a bit of concreteness to the above excellent abstraction: The town of Teemingville passed an ordinance that says, in full, “No vehicles are allowed in the town park.” Some years later, a veteran’s group wants to put a WWII memorial in the park. The memorial will include a decommissioned, nonfunctional tank. After obtaining all funding and permission from every board involved (e.g., parks and rec, safety, zoning), a citizen files a suit challenging the placement of the tank, noting that “a tank is a type of vehicle. The ordinance says no vehicles are allowed. Therefore, the memorial is not allowed.” Without getting clever and suggesting that the citizen lacks standing, can you see how quickly things get tricky? The original intent school would say that the stationary, nonfunctioning tank is should not be banned – but isn’t that judicial activism, allowing something that clearly is a vehicle to be put in the park? Wouldn’t a textualist have to side with the ban? But if there was clear statements and a legislative history leading up to the vehicle ban based on traffic accidents, isn’t that an absurd result? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 1, 2009, 8:53pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/24 "2009-06-01T20:53:00Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The _word_ speech does not generally encompass written language. How about a cite that says that in law speech does not generally encompass written language? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 3, 2009, 4:39am UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/25 "2009-06-03T04:39:15Z")
> [@jtgain](#): > > Welcome to the dark side. 🙂 This is why many people complain about judicial activism. Instead of reading the plain words of the Constitution, or applying the terms as they were intended, they engage in a juggling act which allows them to reach the desired result. [QUOTE=jtgain] There is an amendment process to change the constitution to fit with “the ideas of the day”. It is much better to have a sea change when 2/3rd of each House of Congress and 3/4ths of the states agree, rather than have 5 unelected Judges serving life terms passing down dictates to 300 million people. [/QUOTE] [QUOTE=jtgain] At the risk of falling into a trap, no. I don’t see a need for an amendment for freedom to publish on the Internet. The 1st amendment does not specify printed paper only, and I think that if the founders were given a glimpse of what the Internet entailed, they wouldn’t see a difference between the two. [/QUOTE] It seems to me that you did fall into a trap, **jtgain**. 🙂 You are saying that the Constitution doesn’t just mean what the people who passed it in the late 18th century understood it to mean. It is a document that can be adapted to include developments in society and technology that the drafters never could have envisaged. An amendment is not needed to do so. However, you are doing it in a principled way, just as **Cliffy** ’s point illustrates. You are asking if there are enough similarities between the internet, which the drafters could not have envisaged, and the modes of communication that they were familiar with, and you conclude that the key aspect of the internet isn’t it’s technological base (which the drafters couldn’t have envisaged), but the fact that it’s a medium of communication, (which the drafters wanted to protect) and therefore internet communication should be protected by the First Amendment. However, that’s not a “plain words” or “applying the text as it was intended.” There’s a principled discussion that leads you to the conclusion you reach, one that is not immediately apparent from the text of the First Amendment, but one that builds on your understanding of the drafters’ intent, namely that they would want their constitutional provisions to be expanded to apply to new circumstances. But what’s the difference between your analysis and “judicial activism”? ---
**Author:** ![HorseloverFat](https://avatars.discourse-cdn.com/v4/letter/h/8e8cbc/32.png) [@HorseloverFat](https://boards.straightdope.com/u/HorseloverFat)\ **Post date:** [June 3, 2009, 5:04am UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/26 "2009-06-03T05:04:09Z")
This belongs in gd. The question is framed in Rush Limbaugh talking points. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 3, 2009, 4:15pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/27 "2009-06-03T16:15:50Z")
> [@Northern\_Piper](#): > > However, that’s not a “plain words” or “applying the text as it was intended.” I think it shows nicely that the above terms have no meaning or are impossible to apply in practice. The real question is whether a controversy exists at all. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 5, 2009, 12:58pm UTC](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250/28 "2009-06-05T12:58:25Z")
that was going to be my follow-up question to **jtgain** - what does he mean by “plain words”? [Previous page](https://boards.straightdope.com/t/what-does-scotus-have-to-base-decisions-on/498250.md?page=1)