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> The Courts invented qualified immunity, and the Courts should have done away with it, as well. Herein lies the problem. The Courts aren't constitutionally p

> The Courts invented qualified immunity, and the Courts should have done away with it, as well. Herein lies the problem. The Courts aren't constitutionally permitted to invent much of anything.

wnevets 6y ago
Citation needed. Case law has existed since the invention of America.
- tobylane 6y ago
  It’s a major part of common law which was inherited from England. Pre-Revolution, even English court cases, can be persuasive in modern US courts because of this history.
- lwheelock 6y ago
  I take their meaning as; The court’s role is to interpret the law in letter and spirit at the time at which it was enacted. It is not to invent legality or update definitions with modern social norms. The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative.
  - belltaco 6y ago
    >The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative. I read the court's decision and the test they applied was "if this person's sex was the opposite would they not have been fired ? ". In both the cases of orientation and identity, the answer is a resounding yes. If someone that was gay was female, they wouldn't have been fired, same for a lesbian if she were a man. Also same for transgenders, if their sex was reversed, they would keep the job. I don't see how this is redefining "sex". The decision does not say that sex includes orientation or identity like you claim.
    - lwheelock 6y ago
      That’s exactly what the dissenting opinion says. You should read it fully so that you don’t confuse their argument with “my claim”.
- dvtrn 6y ago
  Does case law invent law or does it narrow or broaden the scope of how law already created can be applied and interpreted? Surely it’s the latter? Or are you suggesting the difference is immaterial? I don’t quite understand your response.
  - matthewheath 6y ago
    I can't speak for the US but in the United Kingdom, case law can almost certainly invent law. Historically, that was how the law formed. Most law now derives from statute (in which circumstances, case law merely adjusts the scope of application and interpretation of existing law) but there are still areas where case law can still _invent_ law. Maybe the same applies in the US too.
  - tialaramex 6y ago
    Unavoidably in the service of justice (which is their purpose) the courts will in practice make law. The legislature deals in broad hypothetical scenarios, for example perhaps "Putting anchovies on pizza shall be a crime punishable by death". Courts must deal with an actuality with lots of specific facts that could not possibly have been anticipated by the legislature. For example are these particular fish anchovies? Was this item a pizza in the sense the legislature meant? Who exactly "put" the anchovies on the pizza if it happened automatically by action of a machine? The person who installed the machine? The person who loaded these specific anchovies into a hopper? Does it matter if that person knew the machine makes pizza? It may also run into larger questions. Is the legislature really allowed to kill people for putting anchovies on their own pizza? If not, why not? Would it be allowed to fine them? All of this has the effect of "creating law" in order to dispense Justice, which is the whole reason we created courts.
    - dvtrn 6y ago
      Okay, I get what you’re saying here, framing it the way you have this makes sense. Thanks for that.
- linuxftw 6y ago
  Citation: US Constitution. Courts adjudicate the law, including common law. They cannot create new law. If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity. In fact, in this very article, one of the Justices agrees with me here: > Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress. All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.
  - salawat 6y ago
    By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not? After all, to strike a law passed by the legislature and approved by the Executive is to essentially at a minimum have the power to mint a new law of the form "X law is unconstitutional and cannot have force of law." That's the troublesome crux that bugged even Jefferson if I recall, that essentially those appointed for life judges through judicial review could single handedly shift the direction of policy in the nation. For as much effort as was put in to constrain the Executive, the judiciary was a rather pronounced backdoor that I'm unsure that any amount of wrangling or re-architecture could resolve. Though, I'd love to see an experiment where affordances were made for a "Supreme Jury" of the people to balance out the political strategic value of Supreme Court justice appointments to counter the long term provisioning of power, but I'm still unsure whether that would be stable in terms of maintaining any semblance of checks and balances. Perhaps that Jury is vested with final discretion over acceptance of writs of certiorari, allowing the populace to direct the attention of the court, but still leaving the review to the appointees. I'm still not sure there's not an exploit there somewhere, but it would be an interesting way to essentially create an "anti-legislature", primarily tasked (given the general tone of Supreme Court appeals) of knocking law off the books. Then again, given I'm just spitballing, I'd want to sit down and give it a real hard think as to whether that would really do anything other than add in more complexity.
raincom 6y ago
Judges tell one thing to the public and do other thing. To the public: they say they don't invent law. But they do invent, modify law. That's why there is so much literature on "judge-made law".

> The Courts invented qualified immunity, and the Courts should have done away with it, as well. Herein lies the problem. The Courts aren't constitutionally permitted to invent much of anything.

wnevets 6y ago

Citation needed. Case law has existed since the invention of America.

tobylane 6y ago
It’s a major part of common law which was inherited from England. Pre-Revolution, even English court cases, can be persuasive in modern US courts because of this history.
lwheelock 6y ago
I take their meaning as; The court’s role is to interpret the law in letter and spirit at the time at which it was enacted. It is not to invent legality or update definitions with modern social norms. The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative.
- belltaco 6y ago
  >The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative. I read the court's decision and the test they applied was "if this person's sex was the opposite would they not have been fired ? ". In both the cases of orientation and identity, the answer is a resounding yes. If someone that was gay was female, they wouldn't have been fired, same for a lesbian if she were a man. Also same for transgenders, if their sex was reversed, they would keep the job. I don't see how this is redefining "sex". The decision does not say that sex includes orientation or identity like you claim.
  - lwheelock 6y ago
    That’s exactly what the dissenting opinion says. You should read it fully so that you don’t confuse their argument with “my claim”.
dvtrn 6y ago
Does case law invent law or does it narrow or broaden the scope of how law already created can be applied and interpreted? Surely it’s the latter? Or are you suggesting the difference is immaterial? I don’t quite understand your response.
- matthewheath 6y ago
  I can't speak for the US but in the United Kingdom, case law can almost certainly invent law. Historically, that was how the law formed. Most law now derives from statute (in which circumstances, case law merely adjusts the scope of application and interpretation of existing law) but there are still areas where case law can still _invent_ law. Maybe the same applies in the US too.
- tialaramex 6y ago
  Unavoidably in the service of justice (which is their purpose) the courts will in practice make law. The legislature deals in broad hypothetical scenarios, for example perhaps "Putting anchovies on pizza shall be a crime punishable by death". Courts must deal with an actuality with lots of specific facts that could not possibly have been anticipated by the legislature. For example are these particular fish anchovies? Was this item a pizza in the sense the legislature meant? Who exactly "put" the anchovies on the pizza if it happened automatically by action of a machine? The person who installed the machine? The person who loaded these specific anchovies into a hopper? Does it matter if that person knew the machine makes pizza? It may also run into larger questions. Is the legislature really allowed to kill people for putting anchovies on their own pizza? If not, why not? Would it be allowed to fine them? All of this has the effect of "creating law" in order to dispense Justice, which is the whole reason we created courts.
  - dvtrn 6y ago
    Okay, I get what you’re saying here, framing it the way you have this makes sense. Thanks for that.
linuxftw 6y ago
Citation: US Constitution. Courts adjudicate the law, including common law. They cannot create new law. If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity. In fact, in this very article, one of the Justices agrees with me here: > Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress. All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.
- salawat 6y ago
  By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not? After all, to strike a law passed by the legislature and approved by the Executive is to essentially at a minimum have the power to mint a new law of the form "X law is unconstitutional and cannot have force of law." That's the troublesome crux that bugged even Jefferson if I recall, that essentially those appointed for life judges through judicial review could single handedly shift the direction of policy in the nation. For as much effort as was put in to constrain the Executive, the judiciary was a rather pronounced backdoor that I'm unsure that any amount of wrangling or re-architecture could resolve. Though, I'd love to see an experiment where affordances were made for a "Supreme Jury" of the people to balance out the political strategic value of Supreme Court justice appointments to counter the long term provisioning of power, but I'm still unsure whether that would be stable in terms of maintaining any semblance of checks and balances. Perhaps that Jury is vested with final discretion over acceptance of writs of certiorari, allowing the populace to direct the attention of the court, but still leaving the review to the appointees. I'm still not sure there's not an exploit there somewhere, but it would be an interesting way to essentially create an "anti-legislature", primarily tasked (given the general tone of Supreme Court appeals) of knocking law off the books. Then again, given I'm just spitballing, I'd want to sit down and give it a real hard think as to whether that would really do anything other than add in more complexity.

raincom 6y ago

Judges tell one thing to the public and do other thing. To the public: they say they don't invent law. But they do invent, modify law. That's why there is so much literature on "judge-made law".