4 ms·

> 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

> 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?
    - OpieCunningham 6y ago
      I’m not dismissing canons of interpretation as being incorrect. I’m stating that canons of interpretation are themselves nothing more than subjective opinion. And there are surely many versions. Some of which align with conservative beliefs and some of which align with liberal beliefs. So what is a “correct” canon of interpretation? Or are canons of interpretation just another layer of obfuscation used to pretend there are objective opinions?
  - deleted 6y ago
    [deleted]
mlindner 6y ago
> "evidence of consistent partisan split votes makes such an argument particularly weak" Except there isn't much of this evidence. Supposedly "right wing" justices vote with the "left wing" justices regularly, even often against the other "right wing" justices.
- mrkstu 6y ago
  Yep. Sotomayor will almost never vote with the conservative 'block' on non-unanimous decisions. Gorsuch, on the other hand, will hold with a death grip to what he believes the intent of the writer of the law/Constitution was, rather to some desired outcome. Textualist value the 'system' over immediate outcome, because they really believe they are there to call 'balls and strikes,' hewing as close to the 'rules of the game' as possible. Someone like Roberts takes the whole enchilada into account- precedent, public reaction, political impact, historical judgement, interactions between the justices themselves, but coming from a conservative PoV, I assume because he thinks thats part of his job as Chief Justice. I, personally, prefer the textualist approach. It allows the separation of powers to mean something and makes the law at least theoretically responsive to the people via their elected representatives. If the majority wants the law to change, they have the means to do so without waiting for a new set of justices. Those who want to bypass that by hoping their 'team' stack's the deck- well that only works for non-textualists. Trump is finding out, to his intense disappointment, that all those textualists he nominated to the bench, care not a whit for getting things done for him, but just what the law is, as it is written. So the left should be mighty pleased that the 'other side' doesn't play the game by their rules, and that in this area, at the least, they may want to change their approach.

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?
  - OpieCunningham 6y ago
    I’m not dismissing canons of interpretation as being incorrect. I’m stating that canons of interpretation are themselves nothing more than subjective opinion. And there are surely many versions. Some of which align with conservative beliefs and some of which align with liberal beliefs. So what is a “correct” canon of interpretation? Or are canons of interpretation just another layer of obfuscation used to pretend there are objective opinions?
- deleted 6y ago
  [deleted]

mlindner 6y ago

> "evidence of consistent partisan split votes makes such an argument particularly weak" Except there isn't much of this evidence. Supposedly "right wing" justices vote with the "left wing" justices regularly, even often against the other "right wing" justices.

mrkstu 6y ago
Yep. Sotomayor will almost never vote with the conservative 'block' on non-unanimous decisions. Gorsuch, on the other hand, will hold with a death grip to what he believes the intent of the writer of the law/Constitution was, rather to some desired outcome. Textualist value the 'system' over immediate outcome, because they really believe they are there to call 'balls and strikes,' hewing as close to the 'rules of the game' as possible. Someone like Roberts takes the whole enchilada into account- precedent, public reaction, political impact, historical judgement, interactions between the justices themselves, but coming from a conservative PoV, I assume because he thinks thats part of his job as Chief Justice. I, personally, prefer the textualist approach. It allows the separation of powers to mean something and makes the law at least theoretically responsive to the people via their elected representatives. If the majority wants the law to change, they have the means to do so without waiting for a new set of justices. Those who want to bypass that by hoping their 'team' stack's the deck- well that only works for non-textualists. Trump is finding out, to his intense disappointment, that all those textualists he nominated to the bench, care not a whit for getting things done for him, but just what the law is, as it is written. So the left should be mighty pleased that the 'other side' doesn't play the game by their rules, and that in this area, at the least, they may want to change their approach.