> Not a fan of Gorsuch
Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!
Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases.
> Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers.
To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text.
I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary.
In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.
But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us.
The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.
I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
* Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)
This in turn makes no sense to me.
Why would they go through the immense trouble to make this constitution, if they thought it could mean anything people wanted in the future?
How would that be different from the normal state of the time, that had no constitution?
But to your point, it's not that they wanted it to mean anything. It's just that the constitution is broad and vague, not because we lack historical context or some window into the mind of Madison, but because it is intentionally vague. Let's take the relevant amendment here:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...
That phrase "probable cause." Not very specific to my mind. It can't mean anything at all, but it leaves most questions unanswered. Is an anonymous phone tip probable cause? If an officer pulls over a car and the driver is sweating and nervous, is it probable cause to get a warrant to search his house for drugs? What if the driver smells like drugs? What if he is carrying lots of cash? What if there is blood on his shirt? And on and on...
Without the hundred plus years of case law that have worked to develop tests for what qualifies and doesn't qualify as probable cause, it really might mean almost anything. What good does it do to ask, "What would James Madison have thought about a driver that smells like drugs?" He probably would have thought it was an interesting legal question for the courts, that's what! Judges should figure that out by trying to predict the real world outcomes of their decisions, not reading tea leaves in the Federalist papers.
But yea, just like my, opinion, man.
Since you can't foresee every possible future circumstance, you try to establish a general principle to apply instead.
But I don't think that means all parts of it was intended to be freely reinterpreted to mean anything the people in power in the future wanted. I think the main purpose of the constitution was to prevent that!
The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is.
Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.
And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland.
If that had happened, and that person confirmed, would they be sitting on a stolen seat too?
The method they chose instead was illegitimate, and that's why it is a stolen seat.
That's understandable.
> months before a presidential election
I don't think you understand the definition of "lame duck". It refers to the period between election and inauguration. It is completely unreasonable to treat the entire final year that way.
And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.
Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988.
Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office.
Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration.
Either way, Gorush's seat is no more stolen than a Hillary appointee would be.
There was no reasonable excuse in 2016 either lmao.
I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference.
_Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts.
Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly.
TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.
There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.
I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.
I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican.
I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.