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Comment by nickff | Hacker News Reader

>"My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held."

I never understood this logic, because it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised, because they had a strong originalist argument. Breyer on the other hand, with his 57-factor balancing tests, always finds a way to find in favor of his favored side.

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it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised

That doesn't describe Scalia at all. Scalia applied originalism when it suited him, and abandoned it when it interfered with his ideological goals.

Scalia like most SCOTUS justices, cared little for the actual litigants, since they were largely irrelevant to the matters at hand other than as vessels for bringing the matter to court. Due to the length of time it takes cases to get to the Supreme Court, many of the named litigants aren't even the original parties, the original parties having long since died or left office.

The justices definitely think about the litigants, and similarly situated parties. Sotomayor and Ginsburg regularly made litigant-related emotional appeals (usually near the end of oral argument), notably in the healthcare and DAPA/DACA cases. I do not recall Scalia making emotional appeals, but he was sympathetic to the administrative agencies (in a manner which I see as inconsistent with most of his other jurisprudence, and which he later drew back from).

Yes, they think about the litigants during oral arguments, and in dicta (side remarks in an opinion) where it doesn't matter.

The facts of the litigants don't matter to the legal reasoning, because SCOTUS decides matters of law, not fact.

Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases. It can also decide matters of fact in some cases, for various reasons.

Those situations aside, I think Sotomayor and Ginsburg's emotional appeals in oral argument are representative of how they are actually deciding those cases (i.e. for reasons related to the specifics of litigants), and that the written opinions may simply be a legal veneer over their true motives.

Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases

It's called "original jurisdiction" and for SCOTUS their scope of original jurisdiction is limited to cases between the states or involving ambassadors or other "public ministers." As a portion of SCOTUS' load, such cases are such a small fraction that it can be decades between such cases.

SCOTUS otherwise does not decide matters of fact because it's not within their jurisdiction to do so as an appellate court. They can overturn lower-court rulings on the facts, but in doing so must remand to the lower courts for new rulings on the facts. Additionally, while they can take facts into account in their rulings, such facts must be part of the record established in the lower courts (i.e., the trial courts), unless it is a case of original jurisdiction for SCOTUS (meaning state vs state cases).

I think Breyer is pretty honest at least that his goal is equity rather than some abstract philosophy. Unfortunately this does tend to lead to balancing tests rather than bright line rules.

Conversely, it could be said Scalia twisted the idea of "originalist" to suit his political ends. Heller in particular is a very consequential ruling that basically invented a new right under the second amendment from whole cloth. When originalists complain about "activist judges" it can seem intellectually dishonest.

There's also a good question about how originalists can even support Marbury v Madison and the concept of judicial supremacy in the first place, since it doesn't originate in any law. Right now they support it because they have durable power in the courts.

Heller is an interesting one, though I disagree with your statement that it was invented from whole cloth. I see Heller as a good example of constitutional consistency. Over time, the courts have developed a range of standards, each of which applies to one or two amendments. I hope Heller is the first step in a rationalization of constitutional law, as there is no reason for certain rights to be more or less protected than others.

As to Marbury v. Madison, even (some) originalists believe in stare decisis, though it is a controversial topic.

I think this has to do with the words 'theory', 'conclusion' and 'rationalization'.

In natural sciences, a theory is a set of hypotheses, along with their logical consequences with the aid of auxiliary theories. This is not what judges to. They have a set of meta-principles(originalism, textualism, precedent, etc) and heuristics (for reasonableness, fairness, etc). They use them to come at a decision they favor. The difference between a Breyer and a Scalia is the way they assign weights to these heuristics and meta-principles to favor their decisions.

I think you make a good point about justices existing along a spectrum of adherence to methodologies, but I think some judges and justices also choose to avoid the main issue when the 'heuristics' are at odds with their principles. The most obvious example of a serial-parrier is the current chief.

Richard Posner is very upfront: he first decides, then finds rationale for that decision. Of course, the judge's role is to pick one decision among a range of possible decisions. As long as there is a section of public who supports that decision, all rationale judges provide make it appear non-arbitrary. This kind of explains why the same court ruled in opposing ways wrt segregation, etc.

No thanks, I'd rather the plain words of a governing document be interpreted more like a living organism that evolves with the times. That way I can get exactly what I want right now without having to convince anyone else beyond 5 old people to vote for it.

I assume this is sarcasm?

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