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While I am heartened by the ruling, I think it's important to note that SCOTUS is merely saying that the language of the law allows for personal liability of (a

• sillyquiet 6y ago
  Well, that's exactly what the courts on the Federal level are there to do, constitutionally, rule on what the law is, not decide what the law should be. If they do that, they just become a de facto legislature that's not elected. The actual legislature, as you note, is where these fixes need to occur. Using the courts for it is a civics hack, and one that will bite us in the ass.
  • newacct583 6y ago
    > rule on what the law is, not decide what the law should be Seems like that's very hard to square with Citizens or Shelby County, both of which overturned quite clearly written laws with long-accepted interpretations. The textualism stuff is, at best, an excuse used when the court wants to do nothing. It doesn't limit the court when it wants to make changes. In this case, the court took as narrow a step as possible into the minefield that leads to Qualified Immunity. It's a baby step in the right direction, but it's just a baby step.
    • dcolkitt 6y ago
      Citizens United was based on the law being unconstitutional, not the court’s interpretation of the law.
      • newacct583 6y ago
        I know the reasoning. It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it. Again, it's just excuse-making. If you don't want to do something you write a narrow opinion and put the responsibility on congress to provide specificity. If you want to do something big you throw out a law based on the constitution. In this case, they held the way they did because they did not want to write a broad finding, and absolutely not because their hands were bound by some imaginary principle.
        • racnid 6y ago
          If one person has a right to free speech then logically groups of people have rights to free speech, there's really no other way to look at that.
        • Meekro 6y ago
          Citizens United (the group) was a non-profit advocacy group that wanted to publish a video critical of a politician. The government wanted to stop that video from being published. That is not money-as-speech, it's speech-as-speech.
          • newacct583 6y ago
            Citizen's United (the case) held that any government restriction on political spending was presumptively illegal and in violation of the first amendment. That is exactly my point. It was NOT a narrow ruling tailored toward the needs of PACs trying to avoid censorship. It was a extremely broad ruling throwing out the whole concept of campaign finance regulation.
          • hypersoar 6y ago
            This is a common and misleading description. I encourage you to read the decision and at least part of Stevens's dissent (which is twice as long as the decision itself). I know it's a lot of pages, but it's got big fat margins. Now. (Reposting a comment I made elsewhere) Before Citizens United, any US majority-owned corporation or union was allowed to make political contributions from a segregated fund. The money in that fund could only come from employees and shareholders. This was, in decades of previous legislation and case law, considered sufficient to protect the 1st Amendment interests of associations of individuals. They can pool their money together for political purposes, put they can't pool it with other people's money. Before the ruling, Citizens United was allowed to spend money on political activity. They were allowed to spend money on political activity close to an election. They were allowed to spend money, close to an election, to broadcast issue-based political advertisement (e.g., for or against a ballot initiative) on TV. They were allowed to spend money distributing their documentary in any way other than broadcasting it on TV. They could show it in theaters. They could put it on the internet. They could print DVDs and mail them out. They could distribute it to PACs and campaigns for them to spend their own money distributing it, including broadcasting by on TV. They could pay money, close to an election, from a segregated fund, to broadcast their documentary on TV. All they weren't allowed to do was spend money, close to an election, on broadcasting something expressing views for or against a political candidate, on television or radio, to an audience of at least 50,000, close to the election. Corporations were not banned from electioneering before Citizens United. They were restricted. The laws imposing those restrictions went back until at least the early 1900s. There was a century of case law find some such restrictions constitutional. There was a decision in 2003, just 7 years before Citizens United, upholding the very restrictions that CU struck down. The majority's argument rested on the idea that no "identity-based" restrictions on 1st-Amendment rights are constitutional. But there are such restrictions, e.g. against prisoners, students, and employees of the executive branch. These restrictions remain in place today. The majority invented a 1st-Amendment principle and then selectively applied it to corporations. They did so with no fact-finding in the record of the case on whether the provisions they struck down actually chilled free speech. Fact-finding that the government wanted to do before Citizens United (the organization) dropped the issue. The majority in Citizens United flipped the table on decades of election law that had survived scrutiny several times before without even claiming that any circumstances had changed. They did it solely because they didn't like the outcome. And they bent over backwards to do it.
    • HexagonalKitten 6y ago
      I like textualism. The point of the supreme court isn't to get everything right, it's to kick badly written law back to the legislators. How do you know the text needs fixing if you don't stick to the text? Sometimes it is just thrown out to cover bias, but that's not its fault.
      • OpieCunningham 6y ago
        Textualism is nothing more than interpreting something in a way that you believe doesn't align with some older thing you also interpreted in a way. "I believe this new law is incompatible with what I believe this old rule says." You may be right or you may be wrong, anyone can do it, and anyone who does will mostly come to their conclusion based upon their personal political beliefs. Hence, a reason the Supreme Court has so many partisan split rulings. Textualism is pure nonsense, used to present a false sense of rationality to an opinion. Any self-proclaimed textualist is either deceiving themselves or attempting to deceive others.
        • HexagonalKitten 6y ago
          > Textualism is pure nonsense, used to present a false sense of rationality No. You're just saying that people have biases and thus everything is a lie. Textualism is a thing, and exists outside of law. Textualists think that the authors specific words are important. "Why did Tolkien say X? It must matter, he's a careful author." I value it in the field of law because legal disputes caused by textual confusion can be avoided through careful writing and textualism leads to the type of thinking that is capable of that. And if nobody cared about the words, how sloppy would the thinking also be?
          • OpieCunningham 6y ago
            Textualism outside of law is fun. Enjoy. In the context of law, and this entire thread, it's nonsense used by people to make themselves think they are smart, or trick other people into thinking they must be smart. In law, everything is textualism, and therefore anyone who claims textualist jurisprudence as a distinct thing they practice are simply attempting to classify anyone else as not smart enough to form valid opinions about what words and phrases mean.
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  • ineedasername 6y ago
    >rule on what the law is, not decide what the law should be There's a huge grey area there. Both require the court to insert its judgement instead of that of elected officials making the law. Whether or not they are ruling on "what the law should be" is not a binary determination and different people draw the line in different places. Every judicial act at that level is one of interpretation, and that will always necessarily carry the risk of an interpretation that is not in keeping with the legislative intent. In which case the remedy is additional legislation to clarify that intent. In this example, should Congress decide monetary damages should not be in the scope of "appropriate relief", they can change the law. Right now there are undoubted some-- the DOJ who fought this issue for example-- who believe the court just "decided what the law should be." That's probably in the nature of most decisions the court makes-- the losing side will thing the court got it wrong.
  • OpieCunningham 6y ago
    > rule on what the law is, not decide what the law should be That’s just, like, your opinion man. What is the law? A bunch of words. What do those words mean in combination the the surrounding words? Uh oh, we just hit subjectivity. “Originalism”, “Textualism”, “Absurdism”, etc. are all pure nonsense. Judges, and most particularly Supreme Court judges are definitively expressing their unique opinions as to what a law is, which is identical to “what a law should be”. Someone could attempt to argue that a judge’s opinion of what a law is may not align with what that judge actually believes it should be, but the evidence of consistent partisan split votes makes such an argument particularly weak.
    • nickff 6y ago
      >"evidence of consistent partisan split votes makes such an argument particularly weak." There are a number of judges who 'break the mold' by taking 'unconventional' positions in certain cases. Gorsuch, and Scalia before him are known as a criminal defendant's beset friend when it comes to evidentiary rules, even though nobody would say they were 'soft on crime'. On the other hand, there are judges and justices like Alito, Breyer, and Sotomayor who always find a way to decide cases in favor of their preferred litigant.
      • OpieCunningham 6y ago
        Sure, they each have their own specific beliefs. But none of them are tapped into the objective “what a law is”. Because that doesn’t exist. It’s just a nice mythology we tell ourselves in an attempt to trick our brains into thinking a 3 branch form of government with checks and balances is well checked and well balanced (which it may be, but if we think of 1 branch as objective even when it can’t be, it makes us feel better about the whole system).
        • nickff 6y ago
          >"But none of them are tapped into the objective “what a law is”. Because that doesn’t exist." Well there are canons of interpretation, each of which describes how one can read and understand what legislation and law mean. You seem to be dismissing the canons as being incorrect, and I'm not exactly sure why. Do you think it is possible to interpret a law faithfully? What about a contract?
  • stjohnswarts 6y ago
    They obviously can decide a balance between the law and personal rights when it degrades the latter and the language is unclear. Qualified immunity is a joke and they know it. The wording of the statutes are vague intentionally and in those cases the supreme court can indeed decide how it is to be interpreted since the law makers weren't explicit enough. It's either that or declare the whole thing unconstitutional
• crmd 6y ago
  Thanks for clarifying this important point. Can you elaborate on how this ruling intersects with the doctrine of qualified immunity?
• irrational 6y ago
  The only way to fix it would be through constitutional amendment, wouldn’t it? That would require congress to act and 75% of the states to agree to the amendment. That seems... unlikely.
• geofft 6y ago
  I was actually curious about this - the decision mentions in a footnote that qualified immunity exists for just this reason. Is the story that these officials (and their lawyers) just forgot to raise a qualified immunity defense, and therefore couldn't raise it on appeal? Or is there some reason it didn't protect them?
  • pdonis 6y ago
    Qualified immunity doesn't protect a government official who violates "clearly established statutory or constitutional rights of which a reasonable person would have known" [1]. Also, qualified immunity applies to "discretionary" functions performed by government officials, but "discretionary" doesn't mean "whatever the official thinks is ok". It means a function in which the applicable laws and regulations do not dictate exactly what the government official is to do, but leave some scope within which the official has the discretion to choose a specific action. So whether qualified immunity would protect an FBI agent who put someone on the No Fly list would depend on why they did it and whether the applicable laws and regulations allowed them the discretion to do it for that reason. I doubt the applicable laws and regulations allow FBI agents the discretion to put someone on the No Fly list simply because they refused to be a government informant. [1] https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity
• foolmeonce 6y ago
  I actually find their statements to be irrational. It is absolutely necessary for the courts to decide that the legislature can't give federal agents immunity to violate civil rights. Rebalancing constitutional rights toward the federal government is not a right of congress. (Congress could only write laws agreeing with this conclussion or they would fail in the supreme court.)
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  • blihp 6y ago
    That would be a different argument and case. If Congress were to pass a law providing blanket immunity of federal employees, expect it to be challenged on constitutional grounds especially in a case where the damages were the result of misconduct. All the SCOTUS seems to be saying here (my interpretation) is that if the desire is to provide any level of immunity for government employees, there needs to be a law passed explicitly saying that. Whether or not the law passes constitutional muster is an argument for another day. This is definitely a slippery slope situation.
• rayiner 6y ago
  There is a bit more to it. The government here invoked a general policy against damages remedies against government officials. The court could have credited that argument but didn’t.
• coderaptor 6y ago
  Is less output from Congress really a problem? I mean, Court clarifies, and if clarification is beyond expectations of a majority of Congress then they have the ability to rewrite and ship an update? I feel like this is a useful prioritization mechanic within the structure of government.
  • sbelskie 6y ago
    Except that the time it takes for these processes to play out means that that the Congress that writes a law and the Congress that has the “ability to update” are rarely the same Congress and often controlled by entirely different parties.
    • edoceo 6y ago
      Isn't that a good thing? Refine the laws with fresh eyes? (all bugs are shallow, right?)
    • coderaptor 6y ago
      Lack of alignment of Congress is lack of alignment of their constituents. It’s good that it stalls in that condition, IMO. I’d expect unaligned moves in Congress to cause social strife. Can we remedy things at a lower level before we push a fix through and apply it to half the country that doesn’t want it?
      • sbelskie 6y ago
        What do you mean by remedying at a lower level? Don’t plenty of states and counties also have split polities?
      • harimau777 6y ago
        The problem as I see it is that most of the important issues facing society today cannot be remedied at a lower level (inequality, global warming, anything related to the internet) or are the direct result of lower level corruption (discrimination).
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• dkdk8283 6y ago
  It remains to be seen how this plays out but it allows the opportunity for precedent. No matter how small I’ll take it.
• tacocataco 6y ago
  > Congress is paralyzed for some reason having to do with the new atmosphere of microsecond attention span and single-issue voting. I'd blame First Past the Post voting. [1] It's mathematically always going to lead to a stagnant two party system. When people are forced to vote against someone they don't want in office, representatives have no incentive to be anything other than "not #otherside". There is also no longer a reason to have voting in primaries at different times for different states. Having it setup this way means the results are influenced by various special interests (and not just through the media). [1] https://m.youtube.com/watch?v=s7tWHJfhiyo https://m.youtube.com/watch?v=s7tWHJfhiyo Sorry if this comment was to political in nature for HN.
  • ravi-delia 6y ago
    I used to believe that, but realistically the problem goes much deeper. Game theory is at most a small part of the problem, a lot of the issue has to come down to the Ingroup-Outgroup dichotomy. With one ingroup and one outgroup, there will only ever be two real types of person, politically speaking. Be they split among two parties or twenty, the coalitions will never be unclear.
    • ianai 6y ago
      The us/then dynamic is an artifact of the human condition. It worked when we were tiny groups of individuals with no global influence or presence. Which is precisely the sort of thing we should be designing modern social systems to mitigate.
      • ravi-delia 6y ago
        The only way a social system could mitigate that is to imitate the time that it worked; self determination for as many small communities as possible. Whether or not that's worth the price is up for debate.
        • ianai 6y ago
          That’s the opposite of what I said. We need people to think of themselves as all part of the same people at some level requiring them to have basic civility and respect toward one another.
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• lenkite 6y ago
  I am curious. The recent spate of Covid-19 lockdowns against religious institutions has caused damages. Can folks get money from the governors enforcing the lockdowns ?
  • lalaland1125 6y ago
    Religious institutions generally received less restrictions than the secular equivalents. If anything it would be the theatres, stadiums, etc, etc suing.
• gary_0 6y ago
  The campaigns in the last election cost $14 billion[0] (for Congress subtract the $6.6B the Presidential race used). That's a lot of money to raise. It's likely to be a major factor in Congress' paralysis: some significant amount of attention is being diverted away from lawmaking for the common good and instead towards finding ways to raise enough cash to simply stay in office. The number of dollars spent on federal elections is starting to approach the magnitude of the revenue other large industries (such as cars or movies). So the effect of money in US politics cannot be understated. [0] https://www.nytimes.com/2020/10/28/us/politics/2020-race-money.html https://www.nytimes.com/2020/10/28/us/politics/2020-race-mon...