6 ms·

Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too. I think it's total BS

by mtgx 8y ago

Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too. I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data. I don't think in any other real-world situation that's similar you wouldn't have an expectation of privacy. It's just the government's twisted logic that's used to justify its mass surveillance actions. I also agree with Gorsuch's point that the standard should be much higher than "an expectation of privacy". If you have an industry that has "educated" its users to expect constant violations of their privacy and misuse of their data, it doesn't mean that now users should no longer benefit from privacy rights, because the companies and governments are so used to abusing users' data that they might as well be allowed to do it. I don't think that sort of logic makes sense.

TimTheTinker 8y ago
> Not a fan of Gorsuch Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
- bmelton 8y ago
  He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people. The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is. Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.
  - RankingMember 8y ago
    I'm curious- what makes him predisposed to ruling against Trump?
    - bmelton 8y ago
      The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise. I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference. _Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts. Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly. TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.
  - rrcaptain 8y ago
    I mean, he's also sitting on a stolen seat. Not letting Obama nominate anyone was pretty BS. Obviously it wasn't his idea, but he's benefited from it nonetheless.
    - furgooswft13 8y ago
      Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice months before a presidential election. The people appointed to that position is a huge consideration in many people's vote. Ones less justice on the court for a handful of months is not a big deal. Let the people decide, or something (and inb4 Trump lost the popular vote). And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland. If that had happened, and that person confirmed, would they be sitting on a stolen seat too?
      - rrcaptain 8y ago
        No, the GOP was planning to block Hillary's nominees as well. And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.
        furgooswft13 8y ago
        Of course they were, just as the Democrats attempted to block Gorsuch. Difference is there would be no reasonable excuse to not even letting it come to a vote at that point. Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988. Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office. Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration. Either way, Gorush's seat is no more stolen than a Hillary appointee would be.
- __jal 8y ago
  Unless we're using some standard of 'nonpartisan' I'm not familiar with, I have no idea how you get that. His decisions so far are typical of the ideological firebrand-wing of the FedSoc types, and he hit the ground throwing elbows. (Seems to have learned some manners in the meantime, but that was inevitable.) There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.
  - sanderjd 8y ago
    There is a big difference between partisan and ideological. In fact, I've come to see them almost as opposites over the last couple years: people who are ideologically Republican-circa-2015 have largely found themselves without a party in 2018, while most people who were Republican partisans in 2015 remain staunchly so today, just with a different ideology. In this way, it seems easier to be partisan if you aren't very ideological. (I believe there are also people who are neither.) I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.
    - deleted 8y ago
      [deleted]
    - danjayh 8y ago
      I voted for trump. I voted for him specifically because he published a list of justices that I was more or less OK with, and chose to hold my nose over a lot of other stuff - I think he's kind of a sleaze (in the locker room sense) - but the Supreme Court is so much more important than the presidency. I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican. I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.
- jaredklewis 8y ago
  Not the parent, but I'm not a fan of Gorsuch. I don't suspect he is partisan or politically biased. I just think his jurisprudence is totally kooky. Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is! Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
  - TimTheTinker 8y ago
    Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with. However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases. > Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text. I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary. In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.
jeffdavis 8y ago
The press really distorts what the justices are actually like. Read the opinions -- they are a great example of government explaining itself to the people. Real explanations, addressing the potential shortcomings of their own arguments.
- Baeocystin 8y ago
  Scalia's writings are a great example of this. Never before have I encountered someone with whom I so strongly disagree on so many things, yet enjoy reading the path of how they reached their decision. My own arguments were sharpened because of it. I can see why he and Ginsburg were friends.
- banku_brougham 8y ago
  Very true, and I’d like to add my appreciation for this thread. I wanted to read this decision but felt I didn’t have time, now I can’t wait to sit down with the document.
zmmmmm 8y ago
> I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data I sometimes wonder if companies put exactly this wording into their privacy policies if it would make a difference legally. Right now they put all kinds of other verbiage which allows law enforcement to argue around it. But what if companies simply wrote into their privacy policy: By storing your data with us you can reasonably expect that your data will be kept private from access by any other person Now how can law enforcement argue that someone accessing the service didn't have a reasonable expectation of privacy? Of course, a company's lawyers might say that this is something they can't actually deliver given the government can demand to access their information. But it's exactly in this way that it's a self-fulfilling prophecy: it is exactly by giving this guarantee to their users that they create the legal argument they need to be able to deliver it. And it is exactly by not giving this guarantee to their users that they deprive themselves of the legal power to achieve it.

by mtgx 8y ago

TimTheTinker 8y ago

> Not a fan of Gorsuch Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.

bmelton 8y ago
He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people. The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is. Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.
- RankingMember 8y ago
  I'm curious- what makes him predisposed to ruling against Trump?
  - bmelton 8y ago
    The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise. I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference. _Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts. Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly. TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.
- rrcaptain 8y ago
  I mean, he's also sitting on a stolen seat. Not letting Obama nominate anyone was pretty BS. Obviously it wasn't his idea, but he's benefited from it nonetheless.
  - furgooswft13 8y ago
    Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice months before a presidential election. The people appointed to that position is a huge consideration in many people's vote. Ones less justice on the court for a handful of months is not a big deal. Let the people decide, or something (and inb4 Trump lost the popular vote). And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland. If that had happened, and that person confirmed, would they be sitting on a stolen seat too?
    - rrcaptain 8y ago
      No, the GOP was planning to block Hillary's nominees as well. And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.
      - furgooswft13 8y ago
        Of course they were, just as the Democrats attempted to block Gorsuch. Difference is there would be no reasonable excuse to not even letting it come to a vote at that point. Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988. Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office. Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration. Either way, Gorush's seat is no more stolen than a Hillary appointee would be.
__jal 8y ago
Unless we're using some standard of 'nonpartisan' I'm not familiar with, I have no idea how you get that. His decisions so far are typical of the ideological firebrand-wing of the FedSoc types, and he hit the ground throwing elbows. (Seems to have learned some manners in the meantime, but that was inevitable.) There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.
- sanderjd 8y ago
  There is a big difference between partisan and ideological. In fact, I've come to see them almost as opposites over the last couple years: people who are ideologically Republican-circa-2015 have largely found themselves without a party in 2018, while most people who were Republican partisans in 2015 remain staunchly so today, just with a different ideology. In this way, it seems easier to be partisan if you aren't very ideological. (I believe there are also people who are neither.) I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.
  - deleted 8y ago
    [deleted]
  - danjayh 8y ago
    I voted for trump. I voted for him specifically because he published a list of justices that I was more or less OK with, and chose to hold my nose over a lot of other stuff - I think he's kind of a sleaze (in the locker room sense) - but the Supreme Court is so much more important than the presidency. I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican. I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.
jaredklewis 8y ago
Not the parent, but I'm not a fan of Gorsuch. I don't suspect he is partisan or politically biased. I just think his jurisprudence is totally kooky. Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is! Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
- TimTheTinker 8y ago
  Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with. However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases. > Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text. I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary. In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.

jeffdavis 8y ago

The press really distorts what the justices are actually like. Read the opinions -- they are a great example of government explaining itself to the people. Real explanations, addressing the potential shortcomings of their own arguments.

Baeocystin 8y ago
Scalia's writings are a great example of this. Never before have I encountered someone with whom I so strongly disagree on so many things, yet enjoy reading the path of how they reached their decision. My own arguments were sharpened because of it. I can see why he and Ginsburg were friends.
banku_brougham 8y ago
Very true, and I’d like to add my appreciation for this thread. I wanted to read this decision but felt I didn’t have time, now I can’t wait to sit down with the document.

zmmmmm 8y ago

> I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data I sometimes wonder if companies put exactly this wording into their privacy policies if it would make a difference legally. Right now they put all kinds of other verbiage which allows law enforcement to argue around it. But what if companies simply wrote into their privacy policy: By storing your data with us you can reasonably expect that your data will be kept private from access by any other person Now how can law enforcement argue that someone accessing the service didn't have a reasonable expectation of privacy? Of course, a company's lawyers might say that this is something they can't actually deliver given the government can demand to access their information. But it's exactly in this way that it's a self-fulfilling prophecy: it is exactly by giving this guarantee to their users that they create the legal argument they need to be able to deliver it. And it is exactly by not giving this guarantee to their users that they deprive themselves of the legal power to achieve it.