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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

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.
  - OpieCunningham 6y ago
    What’s the difference between a court opining that a law is unconstitutional and a court interpreting a law as unconstitutional?
    - matt_kantor 6y ago
      It's not "interpreting a law as unconstitutional", just "interpreting the law". As in "how does the law apply to this situation?".
      - OpieCunningham 6y ago
        So there’s an external source for this objective information, or are the judges making their own individual interpretations of “how the law applies”? If the former, why do we end up with split votes that so often fall down partisan lines? Seems like if there were a correct interpretation of a law as distinct from an opinion of a law, they would all have access to it and we could cut the justices down from 9 to 1. And we could call that judge The Conveyor of Truth. Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
        matt_kantor 6y ago
        I didn't say that it's objective or that there is a single "correct" interpretation of every law.
        OpieCunningham 6y ago
        OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense. So I'm not sure what your point is.
        matt_kantor 6y ago
- 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.
deleted 6y ago
[deleted]
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

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.
- OpieCunningham 6y ago
  What’s the difference between a court opining that a law is unconstitutional and a court interpreting a law as unconstitutional?
  - matt_kantor 6y ago
    It's not "interpreting a law as unconstitutional", just "interpreting the law". As in "how does the law apply to this situation?".
    - OpieCunningham 6y ago
      So there’s an external source for this objective information, or are the judges making their own individual interpretations of “how the law applies”? If the former, why do we end up with split votes that so often fall down partisan lines? Seems like if there were a correct interpretation of a law as distinct from an opinion of a law, they would all have access to it and we could cut the justices down from 9 to 1. And we could call that judge The Conveyor of Truth. Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
      - matt_kantor 6y ago
        I didn't say that it's objective or that there is a single "correct" interpretation of every law.
        OpieCunningham 6y ago
        OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense. So I'm not sure what your point is.
        matt_kantor 6y ago
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.

deleted 6y ago

[deleted]

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