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Topic: What's Your Favorite U.S. Supreme Court decision? (Read 2186 times)

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #50
You phrase that as if it were an absurdity, while failing to consider the alternative
An absurdity? No. But a programme[1] all but guaranteed to result in absurdities! And one that can't help but frustrate the sometimes careful work of those empowered to frame our laws.
"Hard cases lead to bad law" from the judiciary, it's often said. Well, I'd contend Chop-logic as a method of statutory interpretation leads to results untethered from "We, the People" - as the vernacular has it. :)

You'll recall Oakeshott's "On Being Conservative"? His description of conservatism has, I think, much in common with Ortega's ontology... Somewhat similarly, I'd feel compelled to reject an entirely consistent formulation of judicial interpretation. (The love of Theory often and easily becomes perverse.)
People -even the best and the brightest- can't (and shouldn't) think that way; else we'll soon replace SCOTUS with some version of Google-inspired AI.
Not your "a justice arbitrarily making things up," as you put it. (And forgive an old habit instilled by the likes of MacAllan: You pose one of the most bizarre False Dichotomy! :) )

To repeat another's words:
Quote
Woke today is Savonarola and Torquemada rolled into one. Unforgiving and repressive, it has replaced common sense with crazed theories about race and privilege. The deeply stupid have fallen for it. We are now obsessed with eradicating every ism in the book.
I use the British spelling, to preclude misunderstanding.
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #51
Have you never sat on a jury?
Not sure if to call you parochial or something worse, but you should know that courts of law in continental Europe do not do juries.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #52
And such knowledge in what way pertains to a discussion of the U.S. Supreme Court's duties and methods, when interpreting U.S. Civil Rights law? :)
Many countries leave the prosecution, fact finding, pronouncement of verdict and sentencing to "experts" — I know. But then, and in such places, I've no doubt as many as do here consider themselves expert enough to perform most of those functions quite cavalierly.
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #53
And such knowledge in what way pertains to a discussion of the U.S. Supreme Court's duties and methods, when interpreting U.S. Civil Rights law? :)
Which was not the topic when you brought up jury experience. The topic was whether Trump is guilty of crimes. Does not depend much on Supreme Court or whether one has jury experience.

Ah, I got it. Since it's your guy being accused, therefore smokescreen and mirrors.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #54
If Trump is guilty of crimes, why has he not been charged, prosecuted, convicted and sentenced?
Feel free to bring up his two impeachments. But we've been over those many times; and we're neither of us going to convince the other... (Add in the complications of the nature of impeachment under the U.S. system, and we'd be playing tic-tac-toe:!)

New York's previous Attorney General Cyrus Vance has been after Trump for years. I'll note that Vance was a highly political AG. His replacement -it's an elective office- has decided there's not enough evidence of wrongdoing to convince a jury, and so dropped the prosecution in search of a crime. :)
The lead prosecutor, who came out of retirement to pursue Trump, retired again when his boss told him he couldn't continue his "case" against Trump. Isn't it odd, that his resignation letter was leaked to the press, and that he spoke therein of Trump's many crimes — none of which he could prove in a court of law, according to his boss?
I readily grant that the public Trump is an unlikable character... But that's not a crime, either. Except to some very partisan officials and ex-officials, who oddly enough are almost all republicans!
You could counter that John McCain's daughter and wife are Republicans, and they hate Trump. Well, Trump tweaked McCain's nose often enough! He did the same to Dick Chaney, dad to Wyo. Rep. Liz Chaney (R?!)...mostly over our invasion of Iraq in 2003.

Trump's not "my guy" any more than any politician has been. (Reagan was a special case.) But I voted for Trump twice, and, unless there's someone better for my country who can win in '24, I will likely do so one more time. Because of what he accomplished...
You of course discount any and all of his administration's  accomplishments; I believe, in the main because you misunderstand the job he was elected to and because of a visceral personal animus. (An odd thing to feel for a man you've never met, who affects your life not at all really.) Was it his well-documented disdain for all things neocon? :)

I'd rather talk about matters somewhat related to the thread's topic, U.S. Supreme Court decisions...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #55
If Trump is guilty of crimes, why has he not been charged, prosecuted, convicted and sentenced?
Yes, this is the basis for my indictment of American justice system - an obvious criminal is not in jail.

And yes, I *did* expect you to deny that unconvicted criminals exist when your guy is in question - and you did not disappoint :D

However, Trump has been convicted of some of his misdeeds. Just not of his graver jailworthy crimes - because his kind of businessmen are a privileged class, and now it would be unprecedented to convict a former president so it takes someone with actual cojones to do it, not some political wimp. But it's on the way - he undeniably shredded and hid documents that he was not supposed to and at least this investigation should not be too hard to bring to a conclusion in a timely manner.

Maybe it's time to ask yourself: Why does ersi always know better than OakdaleFTL? Like, always...

I'd rather talk about matters somewhat related to the thread's topic, U.S. Supreme Court decisions...
Sure, as soon as you stop showing that you never learn. Instead, tell something worth learning.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #56
Yes, this is the basis for my indictment of American justice system - an obvious criminal is not in jail.
Two hundred and fifty years of history to consider and, because one prominent figure may have made money in shady deals and wasn't punished, the whole system is derided? Let me know -when you get to Heaven- if it's any better there... :)
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #57
It seems like an acknowledgement to me.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #58
It seems like an acknowledgement to me.
Nah. Perfect justice ia an unattainable goal. Who but a child expects it?

Like Justice Gorsuch's argument for adding homosexuality and transexuality to Title VII's list of protected classes by logical textualism unmoored from (social and biological) reality (and legal history), there's a utopian fantasy behind any insistence on perfection. :)

In more traditional terms: Just as one can't derive an ought from an is, one can't derive a should from a can...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #59
Like Justice Gorsuch's argument for adding homosexuality and transexuality to Title VII's list of protected classes by logical textualism unmoored from (social and biological) reality (and legal history), there's a utopian fantasy behind any insistence on perfection:)
Again, this is exactly backwards. The utopian fantasy is that biology ever played a role when it was always about outward appearance. Your argument seems to have devolved into stating that Gorsuch shouldn't do his job for reasons of political sensitivity, as if we didn't have a rechtsstaat in the United States with checks and balances.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #60
The utopian fantasy is that biology ever played a role when it was always about outward appearance.
An example:
Should a GP whose biologically male patient complains of severe menstrual pain and pleads for prescription opioids for relief write the 'scrip? If "she" asks for a hysterectomy, should the GP refer "her" to a surgical practice?
In either of these cases, should the Gorsuch decision continence Civil Rights suits, should the MDs refuse?

I say again that "getting the most out of language" of enacted law is not the job of a Supreme Court Justice... It's not a game of gotcha! between the legislative and judicial branches, and -yes, real world consequences matter, even if you insist on calling them "political sensitivities"...

Note: If Gorsuch's majority opinion results in even a great many adverse consequences, only two remedial actions can be taken: A constitutional amendment or a SCOTUS opinion deprecating it. In other words, the U.S. "officially" becomes a nation ruled by men rather than laws. (Wo-men, if you prefer...)
I don't disagree that Title VII (and Title IX) need some work...to achieve and maintain fairness in our "modern" times. But, again, that is the work of Congress, not SCOTUS.
(As with your treatment of my example of "soul stealing," you simply refuse to acknowledge this separation of powers! Besides libertarian policy preferences, I'd ask why? I hope, respectfully. :) )
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #61
An example:
If you think this is in any way relevant you haven't understood a thing. These are examples where sex is the relevant property. Discriminating against you or me because we decide to wear a dress when you wouldn't discriminate against a woman wearing a dress is but-for sex. There is no but-for sex in a freaking hysterectomy, good lord.

I say again that "getting the most out of language" of enacted law is not the job of a Supreme Court Justice... It's not a game of gotch! between the legislative and judicial branches, and -yes, real world consequences matter, even if you insist on calling them "political sensitivities"...
That's the point. Gorsuch' reasoning is a completely value-free, correct interpretation of the law. It doesn't involve any sophistry ("gotchas") and it doesn't involve any political winds. The supposed responses are simply not intelligible. They're bad philosophy, unconnected to logic and reality.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #62
Discriminating against you or me because we decide to wear a dress when you wouldn't discriminate against a woman wearing a dress is but-for sex.
I understand what you're saying, even though I don't quite think you do! :) A for instance you might find more tractable: Does the but-for sex test legalize partial nudity? If not, why?
If so, why not total nudity? (Are all restrooms to be uni-sexual? All school sports? These are but two areas of custom/law that become problematic under the Gorsuch rubric...) Why do we allow discrimination against nudists? Is that fair?

BTW: The medical examples I gave had already occured before Gorsuch's analysis, which would only give greater weight to Civil Rights claims... But you apparently do have some desire to draw a line between the meanings that Title VII's use of the word sex can be proscribed! :) But on what basis?
Wouldn't we have to ask, "What would Gorsuch do?" Or is this a game where everyone gets to make their own rules?
I still think you expect SCOTUS to promulgate and implement policy... And I think it shouldn't (or -at worst- should enter into the fray only seldom[1] because their over-reaching is so difficult to remedy).
The most obvious circumstances requiring such intervention were, in part,  caused by SCOTUS decisions: Dred Scott and separate-but-equal...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #63
Does the but-for sex test legalize partial nudity? If not, why?
Attempting to steelman that gets me to something like that a man would be told to put on a damn shirt and a woman might be fired, in which case you might conceivably see it "legalized," meaning as much as not immediate ground for dismissal in and of itself.

If so, why not total nudity? (Are all restrooms to be uni-sexual? All school sports? These are but two areas of custom/law that become problematic under the Gorsuch rubric...)
None of that is a discussion of law. It's a discussion of what law should be. Nor does it even pertain to Title VII! Sex-based discrimination in sports is perfectly legal.

Is that fair?
That. is. not. the. question. Sheesh.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #64
Nor does it even pertain to Title VII! Sex-based discrimination in sports is perfectly legal.
Two things here:
Bans on nudity could certainly be challenged on the basis of Gorsuch's but-for-sex analysis. Indeed, who the hell are you or I or any other than a majority of SCOTUS to gainsay the obvious reading: But for sexual dimorphism and differing genitalia, our prudish attitudes towards nudity would be considered gross (pun intended) discrimination! It's just an outdated custom... :) And prohibited by law, already; we're just too parochial to see it (if that's the right word: Justices are generally rather reserved in their usage; but mightn't one justifiably say we're too dull or stupid?)?
If not, why not? Which arguments rise to the level of codifying what Congress refuses to, and which don't?[1]

Regarding sex-based discrimination in sports (and Title IX) it's already -per the NCAA- illegal! See the case of Lia Thomas, I believe is the name of the athlete on the Penn State swim team. (Per the IOC, too, if I'm not mistaken...)

My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
Keep in mind: Any case can be filed. And fought through the system all the way to the Supreme Court, with enough resources and only a modicum of official sanction...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #65
Bans on nudity could certainly be challenged on the basis of Gorsuch's but-for-sex analysis.
Setting aside that there doesn't seem to be a relation between public indecency laws and equal employment opportunity, it seems unlikely that anybody wrote their public indecency laws that incompetently in an analogous scenario. But if they did, what's the problem? They'd either decide they'd be better off without them or they'd pass a new ordnance that isn't quite as discriminatory in no time. Chances are the old one with a few words amended or crossed out will suffice. I make this point only to serve as a general remark since there doesn't seem to be any relevance to the matter at hand.

If not, why not?
You pretty much seem to just be making up things that you think sound scary, ridiculous or both at this point. There are plenty of laws that are ridiculous and scary. ;)

My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
If the original intent of the text of the law has unintended consequences, they can change it. That's how the common law system is supposed to work. You seem to be overlooking all the ways in which Gorsuch explicitly rejects going any further for exactly that very reason.

per the NCAA […] Per the IOC, too, if I'm not mistaken...
…and?

My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
There's simply no such thing, ignoring for the sake of brevity examples like Scalia blatantly ignoring the tenets of textualism and originalism with regard to the Second Amendment, as astutely pointed out by @ersi several years ago.[1] Textualism is about the original intent of the words of the law. I'm not convinced originalism is even a real thing. It mostly come across as an excuse some people drag out when they don't like the inescapable conclusion. You'll note Alito is perfectly textualist when the outcome is in line with his views.
Of course he very nicely dressed it up in textualist clothing.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #66
That's how the common law system is supposed to work.
Need I repeat (yes, I must! :), American Constitutional Law is not a common law system...
If the original intent of the text of the law has unintended consequences, they can change it.
This is the nub of our disagreement: For you, even repeatedly rejected proposed changes to the law can and should be codified, if SCOTUS finds an argument of sufficient strength to win the support of a majority of the court! Then -as I've noted- the recourse available to the legislature is onerous.[1] The question arises: How many times must the legislature say No! before the Supreme Court has to hear and take note? :)

@Frenzie: You might enjoy reading this. (Hat tip to the Volokh Conspiracy blog.)
Due to our peculiar system.
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #67
Need I repeat (yes, I must!  :) , American Constitutional Law is not a common law system...
That's how the American Constitutional Law system is supposed to work. Holy moly, the reason I wrote common law in the first place is because you claimed I was confusing common law for European law.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #68
My focus remains on separation of powers and the difference between interpreting and making law... Sorry for the confusion! But it's not the differences between European/Anglo-American systems that concerned me...
Whether or not it's an exclusively American (U.S.) constitutional problem, I can find no way to square the Gorsuch opinion we've been discussing with (what I take to be) permissible traditional methods (rules) of statutory interpretation...

I know (you've helped me to understand better) that the U..S. system and European systems are "different animals" — both preying upon wild Justice! And I think I better understand the U..S. law's connections to English Common Law than you. (No offense intended...) I can understand your frustration with my position on Gorsuch's opinion; but I can't be expected to change it, merely to accomodate a foreign system's peculiarities! :)
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #69
I am talking about how the US works. You can't claim it works in ways it clearly doesn't over decades and decades and decades.

You haven't addressed a single argument. You just handwave about what people supposedly meant in spite of the intent they clearly put in the text. That's philosophically untenable and frivolous anarchy in all but name. And yes, that's legislating instead of interpreting.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #70
Let's back up a bit...

Do you accept that the Common Law is unwritten, in the sense that it doesn't consist of statutes penned and published (enacted) by the legislature?
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #71
The point is that the system already worked this way in all here relevant aspects before the United States even existed.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #72
Quote
When interpreting a statute, it is often helpful to consider
not simply the statute’s literal words, but also the statute’s
purposes and the likely consequences of our interpretation.
Otherwise, we risk adopting an interpretation that, even if
consistent with text, creates unnecessary complexity and
confusion. That, I fear, is what the majority’s interpretation here will do. I consequently dissent.

Mystery quote of the year!
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"Humor is emotional chaos remembered in tranquility." - James Thurber
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Re: What's Your Favorite U.S. Supreme Court decision?

Reply #73
With regard to the OP that would be the own goal of the year.

But with regard to Baderow v. Walters, I haven't read it.

Re: What's Your Favorite U.S. Supreme Court decision?

Reply #74
(Darn that internet search thingy! :) ) But, yes, the quote is from Breyer's (lone) dissent, which surprised me somewhat... As far as your own-goal comment, explain please?
I do find Justice Breyer's dissent compelling — against a pure textualism. (And I'd have preferred the other justices explained themselves individually!) Needless to say, I'm quite disappointed in more than a few. But specially Thomas...
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"Humor is emotional chaos remembered in tranquility." - James Thurber
"Science is the belief in the ignorance of experts!" - Richard Feynman
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