8 ms·

I don't like articles like this. The article itself is great if you actually read it, but in a world of news aggregators I think most people read the headline a

I don't like articles like this. The article itself is great if you actually read it, but in a world of news aggregators I think most people read the headline and promptly come to their conclusion: Kavanaugh is another stooge, just like Scalia before him, claiming righteousness under the flag of "originalism" but in practice serving corporate and partisan interests through legal (read: gobbledygook) bullshit. As much as I want these programs to be ended, the fact of the matter is that there's no coming back from a government with broken courts. If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. People will be shooting each other. Don't believe for one second that our country or our time in history is special, it's on the table and as long as humans are forming institutions it will always be on the table. You can equally argue that there's also no coming back from a government that no longer respects civil liberties, but that's irrelevant to a conversation about who we ought to put on the courts. Kavanaugh is looking to become a member of the least oscillative part of American government, and I'm personally glad that he places the sanctity of that institution over everything else --- yes, even the values of the constitution. To anyone who reads the full article and comes away believing that Kavanaugh is in the wrong, I have to wonder what criteria you believe he should be using to decide his position when answering questions like this. It's unreasonable to say, "He should just look at the constitution and see that these programs are at odds with the 4th amendment and we'll just fix everything in one fell swoop." The court can't operate like that. Be angry at the precedent. Be angry at the legislators who wrote the Patriot Act. Be angry at the ISPs for cooperating so freely. Be angry at yourself for not making or using technology that makes their spying irrelevant. But don't blame the court for putting their responsibility to self-preserve over their responsibility to bail society out of our collective bad decisions. edit: s/precedence/precedent/g

whatshisface 8y ago
Self-preservation? If the courts want to be maximally consistent they should stick to interpreting the law and the constitution and avoid precedent in cases where the law or constitution have an answer. Precedent only makes sense in cases where the law is unclear, and if an argument exists that the law says this-or-that, then maybe it isn't unclear. In any case, the courts should not be legislative bodies. When a court replaces precedent with an interpretation of the law or the constitution, they are correcting a past mistake.
- c0g 8y ago
  The law is more predictable when it follows precedent, which is good since people know what it is. Precedent can be overturned in cases where the facts are different (including when things have changed over time), and the legislature can obviously make new laws. Being bound by precedent is one thing that stops every court from legislating their own interpretation of unclear laws - it makes sure everyone at least gets the same law.
  - whatshisface 8y ago
    Precedent should speak over the individual whims of judges, but not over the law. If you have a convincing argument that the law says a certain thing, regardless of whether or not that argument was discovered the last time around that's how you should rule. The consistency of rulings and the law is more important than consistency between one ruling and another. Orthogonally, it is also the case that precedent is more important than the individual political will fulfillment of judges. The two statements don't contradict at all.
    - torstenvl 8y ago
      Precedent fundamentally is the law.
      - whatshisface 8y ago
        Should a new law passed by Congress be able to overturn judical precedent? If yes, the law takes priority over precedent.
        torstenvl 8y ago
        Your question doesn't make sense as stated, as you're conflating two different concepts (a statute vs. the law) and being overly broad in your reference to precedent. Congress can't pass a statute, for example, that criminalizes oral and anal sex, and expect it to somehow overrule Lawrence v. Texas. However, if the courts interpret a statute that Congress has passed in a way that Congress does not care for, Congress is free to alter the statute to be more clear.
rayvy 8y ago
> Be angry at yourself for not making or using technology that makes their spying irrelevant. I don't like the victim blaming tone of this line, but I do agree with the idea that as the govt becomes more authoritarian, in parallel, we should be exploring techniques to render their strong-arm tactics virtually useless
deleted 8y ago
[deleted]
WillPostForFood 8y ago
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act. Also from the Kavanaugh ruling
rayiner 8y ago
> I'm personally glad that he places the sanctity of that institution over everything else --- yes, even the values of the constitution. The Constitution isn’t a set of “values” against which judges must assess law. It’s a written set of directives and constraints. It’s a contract that defines the outer scope of democracy. The 4th amendment, likewise, doesn’t articulate a set of “values.” It says: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated Interpreting the word “their” does not require resort to “values.” Google’s server logs are not “your” data just because they record a hit from your computer. A phone company’s call records likewise are not “your” data. It’s not about “values,” but the plain meaning of ordinary English words. Blaming “precedent” here is even more misguided. Precedent long ago departed from the text of the 4th amendment, importing this expansive “reasonable expectation of privacy” concept into a document where the word “privacy” or anything like it never appears. If we get the courts to strike down things like metadata collection in 4th amendment grounds, it will only be because the courts ignore what the Constitution says, expands this precedent, and impkses one group’s “values” onto the public.
- wrs 8y ago
  That is just not how it works. The Constitution was written in the 18th century, so taking it literally is not a viable strategy. Furthermore, all language has to be interpreted into meaning, just as you are doing with your oversimplified literal interpretation. Because it says "houses" not "apartments", would you say the police are free to search apartments without a warrant? How about hotel rooms? And how the heck can you interpret the word "unreasonable" literally? By your interpretation, because the phone companies' wires and the voltages thereon are not yours, wiretaps have nothing to do with the fourth amendment. If I place a GPS tracker on your car, that's not "yours" so none of its data is "yours", and I didn't literally search or seize your car, so I'm in the clear. And so on and so on.
  - rayiner 8y ago
    There is a difference between interpreting the language literally and adhering to clear textual limitations. Reading “houses” to include hotel rooms and condos and trailers is an act of interpretation. So is reading “papers” to include digital data. Reading “their ... papers” to include “papers containing information about them” is not an act of interpretation, it’s rewriting the text. It’s not like the defintion of “their” as a word denoting possesson or ownership has changed since the 18th century. And it’s not like third party data was an unknown concept in the 18th century. It was an age of commerce, with merchants and bankers keeping extensive records about the dealings of third parties. As to wire taps—the Supreme Court decided it right the first time when it found in Olmstead that a wire tap was not a fourth amendment search. The contrary decision in Smith was based on this expansive “reasonable expectation of privacy” articulation which has no basis in the Constitution. GPS trackers are a different story. There, the government is treapassing on your char (your chattel property) to conduct a search.
moorhosj 8y ago
“The court can’t operate by only looking at the constitution.” Isn’t that an argument against “originalism” the dominant judicial theory of “conservatives”? I find it odd how “originalists” suddenly become very interpretive of the Constitution when it suits their political needs (see also: Heller).
- geggam 8y ago
  The constitution is pretty clear about arms. The intent was to empower citizens to create a militia, implying military grade arms, when any enemy ( foreign or domestic ) required. The fact the govt controls a military would be reason for the founders to demand even better weapons in the civilians hands. The founders had been through tyrannical governments and knew what happens to the unarmed civilians. I know this causes fear in folks and they want to infringe on that right. That is the way the bill of right reads. People can pretend otherwise but that is the way it works. Note : The US was founded on natural law which dictates we have the right to self defense. Rights govts do not grant nor can they infringe.
  - cmurf 8y ago
    Today's militia is the national guard (and state defense force). They certainly have military grade arms. That's linguistically consistent with the bill of rights. Justice Scalia, one of the stronger voices on individual right to bear arms, wrote in D.C. vs Heller that the right was neither absolute nor unlimited, and therefore the government can regulate guns and their ownership. You're categorically stating as a matter of fact that citizens can own military grade arms, that this is what the bill of rights says. But that is not true. It's not the law of the land, nor is your opinion undisputed by legal scholars. You get to say it's an opinion that's out there, but when not even Scalia went that far, it's a fringe opinion.
    - geggam 8y ago
      The thing about the bill of rights and the constitution. They are in plain english with the intent clear. Unethical leaders and folks in power will attempt to twist the language to meet their goals. This corruption is what causes problems in govts. The constitution limits the govt and clearly defines how those limits are to be changed. With a constitutional amendment. Precedents can not and do not change the constitution no matter how hard it is wished to be so.
pvg 8y ago
If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. People will be shooting each other. Controversial Supreme Court decisions dominated much of the politics of the second half of the 20th century. At the beginning of this one, the Supreme Court picked a president. Historically, the court has been 'packed' or beholden to partisan interests several times. It's hardly 'game over'.
- colemannugent 8y ago
  See FDR's "court packing plan": https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937 https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bil...
- stevenwoo 8y ago
  I would not limit it to the 20th century, controversial Supreme Court decisions were part of the lead up to the Civil War and segregationists "winning" or ending Reconstruction in the 19th century with Dred Scott and Plessy v Ferguson.
  - pvg 8y ago
    I would not limit it to the 20th century I didn't.
    - stevenwoo 8y ago
      Sorry for misinterpreting.
deleted 8y ago
[deleted]
torstenvl 8y ago
Say what you will about Scalia (adopting Wickard's reasoning wrt Raich was deeply disappointing), but he was very strong on the Fourth Amendment.
matthewdgreen 8y ago
I don't grant much of what you say above, but let's leave it aside. From the article: "Kavanaugh went further, saying that even if the Section 215 metadata program was a search, it should be considered 'reasonable' in the name of national security." To me that's all you really know about this nominee. 4th amendment issues are entirely bound up in precedent (though judges have, contrary to your opinion, some latitude.) But the decision about what is and isn't justified by "national security" is entirely a judgement call by an individual. Kavanaugh's judgement is that the most invasive peacetime spying program in the history of the United States is just fine. That's terrifying.
- AmericanChopper 8y ago
  That's not what he actually said though. He said: >Even if the bulk collection of telephony metadata constitutes a search, the Forth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. He's clearly just enforcing the precedent set by the Supreme Court. When asked whether he'd have written the same thing if the case had occurred after Carpenter vs United States, he answered: >"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked. >"I don't see how I could have," Kavanaugh said. If this one case is all you really need to know about Kavanaugh, then you may as well know the truth rather than a misunderstanding you took away from a single line of news article. >though judges have, contrary to your opinion, some latitude This is true, judges have enormous latitude to rule any way they see fit, there are a number of well known 'activist' judges serving today. However good judges understand that they're not legislators and try to enforce the law as accurately as possible.
  - charleslmunger 8y ago
    Yes, but the question we care about here is if we'd get a privacy preserving decision like Carpenter if Kavanaugh was on the court. I read that section of his opinion, and it certainly seems like the answer is "no".
lisper 8y ago
> "He should just look at the constitution and see that these programs are at odds with the 4th amendment and we'll just fix everything in one fell swoop." The court can't operate like that. The Supreme Court can. That's what the Supreme Court does. It's very simple: what the Patriot act says is irrelevant if the result is "unreasonable" search and seizure. The Supreme Court is the final arbiter of what is "unreasonable". It really is as simple as that.
- Lazare 8y ago
  But he wasn't on the Supreme Court when he wrote that earlier opinion, so the earlier opinion tells us nothing about what he'd do if he was on the Court. In theory we have confirmation hearings to give us some idea of how someone would behave on the Court, but as a practical matter they've never really done that, and in the current partisan environment they certainly don't do that.
  - lisper 8y ago
    So what? He's interviewing for a seat on SCOTUS. So to the OP's question: > I have to wonder what criteria you believe he should be using to decide his position when answering questions like this. My answer is: the criteria he should be using are the ones he would apply if he were seated on SCOTUS.
    - Lazare 8y ago
      Are you really arguing that every single judge should decide every single case as if they were on the Supreme Court? That's 1) not how the system works and 2) not how it really can work.
      - lisper 8y ago
        No, of course not. But that's how I want candidates for the supreme court to answer questions at their confirmation hearings.
int_19h 8y ago
> the fact of the matter is that there's no coming back from a government with broken courts. If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. We're already past that point. The only reason why it's not immediately obvious yet is because of the slow pace of change on the court - but you only need to look at the kinds of questions asked at nomination hearings to see that it's all about politics of the day, and judicial impartiality is not a serious consideration anymore.

whatshisface 8y ago

Self-preservation? If the courts want to be maximally consistent they should stick to interpreting the law and the constitution and avoid precedent in cases where the law or constitution have an answer. Precedent only makes sense in cases where the law is unclear, and if an argument exists that the law says this-or-that, then maybe it isn't unclear. In any case, the courts should not be legislative bodies. When a court replaces precedent with an interpretation of the law or the constitution, they are correcting a past mistake.

c0g 8y ago
The law is more predictable when it follows precedent, which is good since people know what it is. Precedent can be overturned in cases where the facts are different (including when things have changed over time), and the legislature can obviously make new laws. Being bound by precedent is one thing that stops every court from legislating their own interpretation of unclear laws - it makes sure everyone at least gets the same law.
- whatshisface 8y ago
  Precedent should speak over the individual whims of judges, but not over the law. If you have a convincing argument that the law says a certain thing, regardless of whether or not that argument was discovered the last time around that's how you should rule. The consistency of rulings and the law is more important than consistency between one ruling and another. Orthogonally, it is also the case that precedent is more important than the individual political will fulfillment of judges. The two statements don't contradict at all.
  - torstenvl 8y ago
    Precedent fundamentally is the law.
    - whatshisface 8y ago
      Should a new law passed by Congress be able to overturn judical precedent? If yes, the law takes priority over precedent.
      - torstenvl 8y ago
        Your question doesn't make sense as stated, as you're conflating two different concepts (a statute vs. the law) and being overly broad in your reference to precedent. Congress can't pass a statute, for example, that criminalizes oral and anal sex, and expect it to somehow overrule Lawrence v. Texas. However, if the courts interpret a statute that Congress has passed in a way that Congress does not care for, Congress is free to alter the statute to be more clear.

rayvy 8y ago

> Be angry at yourself for not making or using technology that makes their spying irrelevant. I don't like the victim blaming tone of this line, but I do agree with the idea that as the govt becomes more authoritarian, in parallel, we should be exploring techniques to render their strong-arm tactics virtually useless

deleted 8y ago

[deleted]

WillPostForFood 8y ago

To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act. Also from the Kavanaugh ruling

rayiner 8y ago

> I'm personally glad that he places the sanctity of that institution over everything else --- yes, even the values of the constitution. The Constitution isn’t a set of “values” against which judges must assess law. It’s a written set of directives and constraints. It’s a contract that defines the outer scope of democracy. The 4th amendment, likewise, doesn’t articulate a set of “values.” It says: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated Interpreting the word “their” does not require resort to “values.” Google’s server logs are not “your” data just because they record a hit from your computer. A phone company’s call records likewise are not “your” data. It’s not about “values,” but the plain meaning of ordinary English words. Blaming “precedent” here is even more misguided. Precedent long ago departed from the text of the 4th amendment, importing this expansive “reasonable expectation of privacy” concept into a document where the word “privacy” or anything like it never appears. If we get the courts to strike down things like metadata collection in 4th amendment grounds, it will only be because the courts ignore what the Constitution says, expands this precedent, and impkses one group’s “values” onto the public.

wrs 8y ago
That is just not how it works. The Constitution was written in the 18th century, so taking it literally is not a viable strategy. Furthermore, all language has to be interpreted into meaning, just as you are doing with your oversimplified literal interpretation. Because it says "houses" not "apartments", would you say the police are free to search apartments without a warrant? How about hotel rooms? And how the heck can you interpret the word "unreasonable" literally? By your interpretation, because the phone companies' wires and the voltages thereon are not yours, wiretaps have nothing to do with the fourth amendment. If I place a GPS tracker on your car, that's not "yours" so none of its data is "yours", and I didn't literally search or seize your car, so I'm in the clear. And so on and so on.
- rayiner 8y ago
  There is a difference between interpreting the language literally and adhering to clear textual limitations. Reading “houses” to include hotel rooms and condos and trailers is an act of interpretation. So is reading “papers” to include digital data. Reading “their ... papers” to include “papers containing information about them” is not an act of interpretation, it’s rewriting the text. It’s not like the defintion of “their” as a word denoting possesson or ownership has changed since the 18th century. And it’s not like third party data was an unknown concept in the 18th century. It was an age of commerce, with merchants and bankers keeping extensive records about the dealings of third parties. As to wire taps—the Supreme Court decided it right the first time when it found in Olmstead that a wire tap was not a fourth amendment search. The contrary decision in Smith was based on this expansive “reasonable expectation of privacy” articulation which has no basis in the Constitution. GPS trackers are a different story. There, the government is treapassing on your char (your chattel property) to conduct a search.

moorhosj 8y ago

“The court can’t operate by only looking at the constitution.” Isn’t that an argument against “originalism” the dominant judicial theory of “conservatives”? I find it odd how “originalists” suddenly become very interpretive of the Constitution when it suits their political needs (see also: Heller).

geggam 8y ago
The constitution is pretty clear about arms. The intent was to empower citizens to create a militia, implying military grade arms, when any enemy ( foreign or domestic ) required. The fact the govt controls a military would be reason for the founders to demand even better weapons in the civilians hands. The founders had been through tyrannical governments and knew what happens to the unarmed civilians. I know this causes fear in folks and they want to infringe on that right. That is the way the bill of right reads. People can pretend otherwise but that is the way it works. Note : The US was founded on natural law which dictates we have the right to self defense. Rights govts do not grant nor can they infringe.
- cmurf 8y ago
  Today's militia is the national guard (and state defense force). They certainly have military grade arms. That's linguistically consistent with the bill of rights. Justice Scalia, one of the stronger voices on individual right to bear arms, wrote in D.C. vs Heller that the right was neither absolute nor unlimited, and therefore the government can regulate guns and their ownership. You're categorically stating as a matter of fact that citizens can own military grade arms, that this is what the bill of rights says. But that is not true. It's not the law of the land, nor is your opinion undisputed by legal scholars. You get to say it's an opinion that's out there, but when not even Scalia went that far, it's a fringe opinion.
  - geggam 8y ago
    The thing about the bill of rights and the constitution. They are in plain english with the intent clear. Unethical leaders and folks in power will attempt to twist the language to meet their goals. This corruption is what causes problems in govts. The constitution limits the govt and clearly defines how those limits are to be changed. With a constitutional amendment. Precedents can not and do not change the constitution no matter how hard it is wished to be so.

pvg 8y ago

If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. People will be shooting each other. Controversial Supreme Court decisions dominated much of the politics of the second half of the 20th century. At the beginning of this one, the Supreme Court picked a president. Historically, the court has been 'packed' or beholden to partisan interests several times. It's hardly 'game over'.

colemannugent 8y ago
See FDR's "court packing plan": https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937 https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bil...
stevenwoo 8y ago
I would not limit it to the 20th century, controversial Supreme Court decisions were part of the lead up to the Civil War and segregationists "winning" or ending Reconstruction in the 19th century with Dred Scott and Plessy v Ferguson.
- pvg 8y ago
  I would not limit it to the 20th century I didn't.
  - stevenwoo 8y ago
    Sorry for misinterpreting.

deleted 8y ago

[deleted]

torstenvl 8y ago

Say what you will about Scalia (adopting Wickard's reasoning wrt Raich was deeply disappointing), but he was very strong on the Fourth Amendment.

matthewdgreen 8y ago

I don't grant much of what you say above, but let's leave it aside. From the article: "Kavanaugh went further, saying that even if the Section 215 metadata program was a search, it should be considered 'reasonable' in the name of national security." To me that's all you really know about this nominee. 4th amendment issues are entirely bound up in precedent (though judges have, contrary to your opinion, some latitude.) But the decision about what is and isn't justified by "national security" is entirely a judgement call by an individual. Kavanaugh's judgement is that the most invasive peacetime spying program in the history of the United States is just fine. That's terrifying.

AmericanChopper 8y ago
That's not what he actually said though. He said: >Even if the bulk collection of telephony metadata constitutes a search, the Forth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. He's clearly just enforcing the precedent set by the Supreme Court. When asked whether he'd have written the same thing if the case had occurred after Carpenter vs United States, he answered: >"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked. >"I don't see how I could have," Kavanaugh said. If this one case is all you really need to know about Kavanaugh, then you may as well know the truth rather than a misunderstanding you took away from a single line of news article. >though judges have, contrary to your opinion, some latitude This is true, judges have enormous latitude to rule any way they see fit, there are a number of well known 'activist' judges serving today. However good judges understand that they're not legislators and try to enforce the law as accurately as possible.
- charleslmunger 8y ago
  Yes, but the question we care about here is if we'd get a privacy preserving decision like Carpenter if Kavanaugh was on the court. I read that section of his opinion, and it certainly seems like the answer is "no".

lisper 8y ago

> "He should just look at the constitution and see that these programs are at odds with the 4th amendment and we'll just fix everything in one fell swoop." The court can't operate like that. The Supreme Court can. That's what the Supreme Court does. It's very simple: what the Patriot act says is irrelevant if the result is "unreasonable" search and seizure. The Supreme Court is the final arbiter of what is "unreasonable". It really is as simple as that.

Lazare 8y ago
But he wasn't on the Supreme Court when he wrote that earlier opinion, so the earlier opinion tells us nothing about what he'd do if he was on the Court. In theory we have confirmation hearings to give us some idea of how someone would behave on the Court, but as a practical matter they've never really done that, and in the current partisan environment they certainly don't do that.
- lisper 8y ago
  So what? He's interviewing for a seat on SCOTUS. So to the OP's question: > I have to wonder what criteria you believe he should be using to decide his position when answering questions like this. My answer is: the criteria he should be using are the ones he would apply if he were seated on SCOTUS.
  - Lazare 8y ago
    Are you really arguing that every single judge should decide every single case as if they were on the Supreme Court? That's 1) not how the system works and 2) not how it really can work.
    - lisper 8y ago
      No, of course not. But that's how I want candidates for the supreme court to answer questions at their confirmation hearings.

int_19h 8y ago

> the fact of the matter is that there's no coming back from a government with broken courts. If the supreme court ever gets to the point where one party is packing it and they're ignoring precedent, that's game over. We're already past that point. The only reason why it's not immediately obvious yet is because of the slow pace of change on the court - but you only need to look at the kinds of questions asked at nomination hearings to see that it's all about politics of the day, and judicial impartiality is not a serious consideration anymore.