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[ivysaur12]

I'm not saying they would be hacks. I'm just saying they'd look like hacks. If they think the Court's legitimacy can take that hit, then they can make the move.

Again, it depends on if you view them righting a blatant partisan wrong or engaging in liberal legal engineering for partisan gain.

 

[Metaphoreus]

They will if those decisions are guaranteed to be overturned by the supreme court. They would have to rule in a way that's consistent with a liberal court.

But if the liberal justices agree that what matters is the original meaning of the Constitution or the text of a statute (without reference to atextual purpose or legislative history), but that the conservative justices were wrong on what that original meaning was or what that text entailed, then Scalia et al. will have won the war despite losing the battle.

 

[Frank the Great]

In the end, I don't think that the conservative or liberal justices hold the jurisprudential views they do on account of their political beliefs. Neither originalism nor textualism is inherently conservative, since the original meaning of a text can be non-conservative.

Well, the problem with textualism and originalism is that there is rarely a clear answer. These doctrines can be used by anyone to justify any viewpoint by picking historical facts or emphasizing pieces of evidence over others, as Scalia often does. It amplifies the bias of judges.

Dictionaries disagree on word meaning, historians disagree on the past, and judges disagree about original meaning. This is why textualism and originalism suck. Instead of debating about the interpretation that makes the most sense and is consistent with public policy and legislative intent, lawyers and judges argue about what dead people thought two hundred years ago. It's a curse on the legal system.

 

[Plinko]

Could be worse. You could write in Rick Snyder

Horrible. Horrible.

 

[pigeon]

Again, it depends on if you view them righting a blatant partisan wrong or engaging in liberal legal engineering for partisan gain.

Well, not really. That's Metaphoreus's point. Both of those alternatives involve viewing the Supreme Court as essentially a partisan political agency whose rulings are driven by exigencies more than by the law. So neither are really ideal from the perspective of somebody who wants SCOTUS to retain legitimacy when it comes to interpreting the law.

 

[Metaphoreus]

Well, the problem with textualism and originalism is that there is rarely a clear answer. These doctrines can be used by anyone to justify any viewpoint by picking historical facts or emphasizing pieces of evidence over others, as Scalia often does. It amplifies the bias of judges.

Dictionaries disagree on word meaning, historians disagree on the past, and judges disagree about original meaning. This is why textualism and originalism suck. Instead of debating about the interpretation that makes the most sense and is consistent with public policy and legislative intent, lawyers and judges argue about what dead people thought two hundred years ago. It's a curse on the legal system.

Far from offering a real criticism of originalism and textualism, your post highlights a strength of the two theories: each relies on objective criteria of meaning. This enables you to say that Scalia does originalism wrong by cherry-picking the available data. But at least there's data available!

Your approach would turn the courts into super-legislatures and ad hoc Constitutional conventions, rehashing the political debates that gave birth to a given document, and drawing their own conclusions about what the law should be. There are no objective constraints on this approach. Yours really does "amplif[y] the bias of judges," because it empowers them to decide what the law ought to be, rather than deciding what the relevant political body has made it to be.

 

[HyperionX]

But if the liberal justices agree that what matters is the original meaning of the Constitution or the text of a statute (without reference to atextual purpose or legislative history), but that the conservative justices were wrong on what that original meaning was or what that text entailed, then Scalia et al. will have won the war despite losing the battle.

"If" they do that, which is a big if. A liberal court would be unlikely to act that way. The only I see that happening is if there is some kind of liberal Scalia, who uses originalism/textualism when it supports his beliefs, and ignore them when it doesn't.

 

[Fenderputty]

Well, not really. That's Metaphoreus's point. Both of those alternatives involve viewing [Bthe Supreme Court as essentially a partisan political agency whose rulings are driven by exigencies more than by the law. ]So neither are really ideal from the perspective of somebody who wants SCOTUS to retain legitimacy when it comes to interpreting the law[/B].

Are humans, or more specifically, the justices we appoint infallible? Do we operate under the assumption they are, because if not, I don't see why a reversal would de-legitimize anything. All interpretations would be subject. This shouldn't be a partisan belief either. People on the right view the current courts as liberal that's why we have Roe V Wade. People on the left view it as conservative. That's why we have citizens united.

In short, I don't think the court has ever had the ability to claim an unbiased interpretation of the law.

 

[Wilsongt]

Fuckabee might be joining the race tonight!

*popcorn!*

 

[Crisco]

There isn't even universal agreement on what textualism is, if the debate over King is any indication. I'm not sure how a man's legacy can be defined by theory that has never been consistently applied, not even by himself.

 

[Metaphoreus]

There isn't even universal agreement on what textualism is, if the debate over King is any indication. I'm not sure how a man's legacy can be defined by theory that has never been consistently applied, not even by himself.

Of course there is. The text of a law is the law, unalloyed with atextual considerations of purpose or legislative history. If the debate between judges becomes one over which canon of construction applies in a given case, rather than about whether committee reports should be considered in interpreting the law, then the judges have adopted textualism and are merely fine-tuning it.

 

[CrimzonSamurai]

Fuckabee might be joining the race tonight!

*popcorn!*

Didn't he step in it deep like, just two weeks ago?

How's he going to be different from Cruz? Is he sticking with his "I've been in the game longer"/more mature angle? I've seen his talk show, mature the dude ain't.

 

[jamesinclair]

Didn't he step in it deep like, just two weeks ago?

How's he going to be different from Cruz? Is he sticking with his "I've been in the game longer"/more mature angle? I've seen his talk show, mature the dude ain't.

He stated he would not attend the wedding of a gay friend or family member. That's his differentiating factor

 

[ivysaur12]

How's he going to be different from Cruz?

For one, I think Cruz actually wants to be president.

 

[Crisco]

Of course there is. The text of a law is the law, unalloyed with atextual considerations of purpose or legislative history. If the debate between judges becomes one over which canon of construction applies in a given case, rather than about whether committee reports should be considered in interpreting the law, then the judges have adopted textualism and are merely fine-tuning it.

That's a pretty broad definition of textualism, one that could hardly be ascribed to a single justice. I doubt you'll find many judges who think atextual considerations trump the law itself.

 

[Metaphoreus]

That's a pretty broad definition of textualism, one that could hardly be ascribed to a single justice. I doubt you'll find many judges who think atextual considerations trump the law itself.

Well, not anymore.

 

[Frank the Great]

Far from offering a real criticism of originalism and textualism, your post highlights a strength of the two theories: each relies on objective criteria of meaning. This enables you to say that Scalia does originalism wrong by cherry-picking the available data. But at least there's data available!

Your approach would turn the courts into super-legislatures and ad hoc Constitutional conventions, rehashing the political debates that gave birth to a given document, and drawing their own conclusions about what the law should be. There are no objective constraints on this approach. Yours really does "amplif[y] the bias of judges," because it empowers them to decide what the law ought to be, rather than deciding what the relevant political body has made it to be.

My point is that textualism and originalism do the exact same as what you describe, only cloaked behind a veneer of objectivity. Instead of intellectual capital being used to figure out what works and what makes sense, it is used to twist words and manipulate history. And at the end of the day, judges can use either doctrine to justify any conclusion that they prefer.


Scalia is exactly like the liberal justices in that he rules the way he thinks is fair, makes the most sense, and fits his awful political views. The only difference is that he trolls by pretending that his decisions are based in objectivity.

And I don't think there is any "available data" in the words of an ambiguous statute at all. Language is completely malleable and can be read to mean many things. That is not reliable data, it is fodder for judicial trolls like Scalia.

Besides, if statutory language is "objective data" as you say, then why isn't the language contained in bill statements also data? Or the language used by sponsors? Or any other extrinsic evidence?

My approach does not make the court a "super-legislature," that is hyperbolic crap. My approach starts with analyzing the plain language, but if it's ambiguous then everything else is fair game. No use pretending that everything can be read only one way, that is chidish, nonproductive, and damaging to the credibility and utility of the courts.

 

[ivysaur12]

What if I'm Flextual?

 

[CrimzonSamurai]

He stated he would not attend the wedding of a gay friend or family member. That's his differentiating factor

Cruz probably wouldn't either, Rubio was the one who said he would.

For one, I think Cruz actually wants to be president.

Fair point. But what possible advantage is there for Huckabee? His show probably pulled in more viewers than the number of people who will donate/vote for him. Suddenly the field is like 5 Santorums, a Herman Cain, and Jeb Bush.

 

[Ecotic]

I feel like Huckabee is about to pull the football on us. You go on a show like Bret Bair's to say "I gave it a lot of thought, but it just didn't feel right". Unless he has some big event planned this weekend and this is just a big glorified announcement tweet.

 

[Metaphoreus]

My point is that textualism and originalism do the exact same as what you describe, only cloaked behind a veneer of objectivity. Instead of intellectual capital being used to figure out what works and what makes sense, it is used to twist words and manipulate history. And at the end of the day, judges can use either doctrine to justify any conclusion that they prefer.

I don't deny that. But when the judges do so, their conduct can be measured against the objective standard afforded by textualism or originalism. As Scalia and Garner write:

To enable the reader to evaluate pure textualism with an open mind, we must lay to rest at the outset the slander that it is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce "conservative" outcomes, sometimes "liberal" ones. If any interpretive method deserves to be labeled an ideological "device," it is not textualism but competing methodologies such as purposivism and consequentialism, by which the words and implications of text are replaced with abstractly conceived "purposes" or interpreter-desired "consequences." Willful judges might use textualism to achieve the ends they desire, and when the various indications of textual meaning point in different directions, even dutiful judges may unconsciously give undue weight to the factors that lead to what they consider the best result. But in a textualist culture, the distortion of the willful judge is much more transparent, and the dutiful judge is never invited to pursue the purposes and consequences that he prefers.

If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it. One of them, a confessed law-and-order social conservative, wrote the first Supreme Court opinion protesting the "enhancement" (i.e., increase) of criminal sentences on the basis of factual determinations made by judge rather than jury and dissented from such "conservative" majority opinions as those setting a constitutional limit on the amount of punitive damages, preventing tort suits against nonmilitary personnel by persons injured in active military service, and imposing criminal punishment for "using a firearm" on a defendant whose "use" of the gun was to trade it for drugs. He has cast the deciding vote or written for the Court in such "liberal" majority opinions as the one holding unconstitutional laws prohibiting the burning of the American flag and the one overruling the case allowing un-cross-examined hearsay to be introduced in criminal prosecutions. Your other author holds many opinions commonly seen as "liberal." He is pro-choice, for example, and supports same-sex marriage; but he finds nothing in the text of the Constitution that mandates these policies. He also favors gun control and deplores the Second Amendment, but he believes that the majority opinion in Heller correctly interpreted that amendment as establishing a person right to bear firearms.

The question is, should judges be encouraged to inject their personal politics into deciding cases, or discouraged from doing so? I think they should be discouraged from doing so, and I think textualism and originalism do more to discourage such conduct than telling judges to do what they feel best.

Besides, if statutory language is "objective data" as you say, then why isn't the language contained in bill statements also data? Or the language used by sponsors? Or any other extrinsic evidence?

My approach does not make the court a "super-legislature," that is hyperbolic crap. My approach starts with analyzing the plain language, but if it's ambiguous then everything else is fair game. No use pretending that everything can be read only one way, that is chidish, nonproductive, and damaging to the credibility and utility of the courts.

Extrinsic evidence is objective data, but it differs from the text of the statute insofar as only the text was enacted through bicameralism and presentment. Congress didn't vote on a sponsor's floor statement or committee report. The president signed neither. What was voted on and signed was the text of a given bill, not the procedural accoutrements that accompanied its passage.

Suggesting that textualism or originalism pretends "that everything can be read only one way" is a strawman--or, as you might say, "hyperbolic crap." Textualism seeks to resolve ambiguities in statutes through the use of interpretive rules that can be known ahead of time and applied more-or-less consistently, but it doesn't deny that ambiguities exist. However, by constructing such a set of rules, textualism enables legislators to anticipate how courts would likely construe ambiguous provisions and provide the necessary text to guide courts' decisions. A rule that courts should resolve ambiguities in accordance with their policy preferences provides no such mechanism for legislators--what the law means becomes the luck of the draw when cases are assigned to a given judge or set of judges.

 

[thepotatoman]

Easy, depress turnout and increase his share among white voters and minorities. Its really simple guys for a Republican to win. Its not hard to swing 3-6 ponts in national election. The popular vote means nothing and the EC means everything. Romney only needed to swing about 150,000-200,000 votes on average in all the states he lost to swing it his way.

I don't think individual campaigning can swing a single state that hard. It's honestly easier to swing your nationwide popularity.

If Nevada or Wisconson does go red, it's likely not going to matter as other actual swing states will be going red as well.

 

[HylianTom]

I feel like Huckabee is about to pull the football on us. You go on a show like Bret Bair's to say "I gave it a lot of thought, but it just didn't feel right". Unless he has some big event planned this weekend and this is just a big glorified announcement tweet.

This was my initial reaction, even including the "unless.." part.

I hope he enters the race. Having another hand raised up for some of those rather awkward "raise your hand if.." moments would look nice.

And I'd like to see the stage so packed that the TV camera needs to have an incredibly wide lens to fit all of the candidates into one shot. Teeny, tiny ant-sized candidates.

 

[Ecotic]

Huckabee (paraphrase): 'I'm announcing I'll have an announcement on May 5th'

 

[jamesinclair]

Cruz probably wouldn't either, Rubio was the one who said he would.

.

Cruz said it hasn't come up so he hasn't had a chance to reflect on it.

 

[GaimeGuy]

Buying insurance policies across state lines.

Worked out for credit cards and banking!

 

[CrimzonSamurai]

Cruz said it hasn't come up so he hasn't had a chance to reflect on it.

Ah, I didn't even know he'd been put to the question. My bad.

So that's a "yes", an "I dunno", and a flat "nope."

I guess Nate was right, the Republicans really have moderated their stance on gay marriage. In that some might be slightly less dickish but still dickish about it than others.

 

[Aaron Strife]

Ah, I didn't even know he'd been put to the question. My bad.

So that's a "yes", an "I dunno", and a flat "nope."

I guess Nate was right, the Republicans really have moderated their stance on gay marriage. In that some might be slightly less dickish but still dickish about it than others.

Yeah but it's the GOP so it means they're super moderate and electable now ~swoon~

 

[Frank the Great]

A rule that courts should resolve ambiguities in accordance with their policy preferences provides no such mechanism for legislators--what the law means becomes the luck of the draw when cases are assigned to a given judge or set of judges.

And that is different from the situation under textualism how? You agreed with me already that judges can use textualism to come to any conclusion they want. I get what you are saying about legislators having a consistent set of rules to use when drafting statutes, but that goes out the window when it gets before a judge, who can use textualism to come up with any interpretation he wants. The result is exactly the same under either approach; the only difference is that textualism is incredibly dishonest and causes lawyers and judges to spend time debating grammar rather than stuff that mattejudge

At least under my approach, a judge must give reasons explaining how he came to his conclusion using extrinsic interpretive aids. Under your approach, a judge can justify any conclusion he prefers by citing dictionaries and grammar books, as Scalia often does. It is a mockery of the law business.

 

[HylianTom]

Cruz was asked, but he dodged and instead talked about his general opinion.

“Well, I will tell you, I haven’t faced that circumstance. I have not had a loved one go to a, have a gay wedding,” Cruz told conservative radio host Hugh Hewitt, who asked the senator if he would go to a gay wedding (Marco Rubio said yesterday that he would go to one).

“You know, at the end of the day, what the media tries to twist the question of marriage into is they try to twist it into a battle of emotions and personalities,” Cruz continued.

“And they try to make it say, so for example, you know, they routinely say well, gosh, any conservative must hate people who are gay. And as you know, that has nothing to do with the operative legal question. And listen, I’m a Christian, and the Scripture commands us to love everyone, and to love everyone, and all of us are sinners,” the Texas senator stated. “But the legal question, I’m a Constitutionalist. And under the Constitution, from the beginning of this country, marriage has been a question for the states. It has been a question for elected legislatures in each of the 50 states. And what we’ve seen in recent years from the left is the federal government and unelected federal judges imposing their own policy preferences to tear down the marriage laws of the states.”

“And so if someone is running for public office, it is perfectly legitimate to ask them their views on whether they’re willing to defend the Constitution, which leaves marriage to the states, or whether they want to impose their own extreme policy views like so many on the left are doing, like Barack Obama does, like Hillary Clinton does. That’s what we would be doing.”

http://dailycaller.com/2015/04/16/ted-cruz-i-have-never-been-to-a-gay-wedding/

 

[JesseEwiak]

Things you read on relatively sane conservative sites to keep yourself honest.

"I'm pro-cop because they are the only thing between the city and chaos. Police should be allowed to shoot in certain circumstances, which is more than they're allowed to now. I support shooting burglars on sight, whether or not they're armed. Same with some other criminals.
Body cameras are ridiculous. If every other public worker would wear them as well, it would make sense."

 

[CrimzonSamurai]

Things you read on relatively sane conservative sites to keep yourself honest.

"I'm pro-cop because they are the only thing between the city and chaos. Police should be allowed to shoot in certain circumstances, which is more than they're allowed to now. I support shooting burglars on sight, whether or not they're armed. Same with some other criminals.
Body cameras are ridiculous. If every other public worker would wear them as well, it would make sense."

I think you have an overly expansive definition of "relatively sane" lol.

 

[Teggy]

Haven't heard a peep from Perry oddly enough.

 

[Aaron Strife]

Cruz was asked, but he dodged and instead talked about his general opinion.



http://dailycaller.com/2015/04/16/ted-cruz-i-have-never-been-to-a-gay-wedding/

It's only a states' rights issue right now because the GOP never got their constitutional amendment passed (boohoo)

 

[ivysaur12]

Cruz was asked, but he dodged and instead talked about his general opinion.



http://dailycaller.com/2015/04/16/ted-cruz-i-have-never-been-to-a-gay-wedding/

Speaking of that, I made in an OT in the OT for the oral arguments in less than 2 weeks. http://www.neogaf.com/forum/showthread.php?t=1031242

 

[Lucky Forward]

Haven't heard a peep from Perry oddly enough.

He's been hitting the books for the past three years:

Rick Perry on 2016: I'm healthy and prepared

Rick Perry says he’s smarter, healthier and more experienced than he was in his ill-fated 2012 campaign.

The former Texas governor was asked during a Leadership Summit hosted by the New Hampshire Republican Party how his second run for president will be different — if, as expected, he mounts another bid. The question came from a man who supported him last time but is uncommitted now.

“To be prepared, to stand on the stage and talk about this myriad of issues, whether it’s domestic policy, monetary policy or foreign policy, it takes years of intense studies,” the 65-year-old replied. “I spent the last three years in that mode — being able to stand up and discuss all of these issues and do it in a way that is very profound and impactful.”

 

[HylianTom]

Speaking of that, I made in an OT in the OT for the oral arguments in less than 2 weeks. http://www.neogaf.com/forum/showthread.php?t=1031242

I just got in from dinner and saw it - it's fantastic!

This is like waiting for Christmas Day+Mardi Gras+Rovian Meltdown (Election) Day all in one!

 

[Metaphoreus]

And that is different from the situation under textualism how? You agreed with me already that judges can use textualism to come to any conclusion they want. . . .

Under textualism, the law and the rules of interpretation provide objective standards against which a judge's actions can be judged. So while a judge may abuse his or her prerogative (intentionally or otherwise), the theory doesn't empower him or her to do so. You mention in your second paragraph that a judge must explain his conclusion using extrinsic interpretive aids--that's not the approach I thought you were arguing for. If your argument is that courts should engage in textualism, but then also consider, say, committee reports and floor statements, then my problem with your approach is that those items were never enacted as part of the law. However, I thought you were arguing that judges should interpret laws in a way that "makes the most sense and is consistent with public policy and legislative intent," which involves consulting a good deal more than just legislative history.

And I see no problem in citing dictionaries and grammar books. The law uses words to command or prohibit, and what those words meant when the legislature enacted the law is of paramount importance. You may question any attempt to determine the historical meaning of words, but whatever issues there are in doing so, they're clearly not insurmountable. You and I may need a commentary to appreciate the full meaning of Shakespeare or the King James Version of the Bible, but the meaning of those works is not lost to us to any significant degree.

*****

In other news:

The demonic Jonathan Adler, along with the unciteable Reason.com's Ronald Bailey, have stirred up some controversy on the right by asking what it would take to convince libertarians and conservatives that climate change is a real problem. From the preceding links, here's Bailey:

In his magisterial 1960 essay "Why I Am Not A Conservative," economist Friedrich Hayek observed:

Personally, I find that the most objectionable feature of the conservative attitude is its propensity to reject well-substantiated new knowledge because it dislikes some of the consequences which seem to follow from it—or, to put it bluntly, its obscurantism. I will not deny that scientists as much as others are given to fads and fashions and that we have much reason to be cautious in accepting the conclusions that they draw from their latest theories. But the reasons for our reluctance must be rational and must be kept separate from our regret that the new theories upset our cherished beliefs.

What Evidence Would Persuade You That Man-Made Climate Change Is Real?

It might be that it is just so happens that natural climate variability has boosted global temperatures and the trends discussed above are occurring coincidentally at the same time the concentrations of carbon dioxide are 30 percent above their highest levels in the past 800,000 years. Correlation does not imply causation. The data cited (and uncited) do not prove beyond a reasonable doubt that man-made climate change is real. However, in my best judgment the preponderance of the evidence suggests that the greenhouse gases produced by humanity are warming the climate and that it could be a significant issue later in this century. In the foregoing I have aimed to cite data, not model outputs. I have long been a critic of computer climate models.

To restate: The existence of man-made warming does not mandate any particular policies. So back to the headline question: If generally rising temperatures, decreasing diurnal temperature differences, melting glacial and sea ice, smaller snow extent, stronger rainstorms, and warming oceans are not enough to persuade you that man-made climate is occurring, what evidence would be?

Adler:

When it comes to climate change, there is an amazing confluence of policy preferences and scientific assessments. Those who generally favor aggressive regulatory interventions to address environmental concerns are convinced global warming is a serious (if not catastrophic) environmental concern, while those who generally oppose governmental interventions in the marketplace are skeptical of mainstream climate science. Each side of the policy debate has adopted a view of the science that confirms — or at least conforms with — its policy preferences.

It would be nice if reality lined up just so, but that’s not the world in which we live. As I wrote in 2008:

Given my strong libertarian leanings, it would certainly be ideologically convenient if the evidence for a human contribution to climate change were less strong. Alas, I believe the preponderance of evidence strongly supports the claim that anthropogenic emissions are having an effect on the global climate, and that effect will increase as greenhouse gases accumulate in the atmosphere. While I reject most apocalyptic scenarios as unfounded or unduly speculative, I am convinced that the human contribution to climate change will cause or exacerbate significant problems in at least some parts of the world. For instance, even a relatively modest warming over the coming decades is very likely to have a meaningful effect on the timing and distribution of precipitation and evaporation rates, which will, in turn, have a substantial impact on freshwater supplies. That we do not know with any precision the when, where, and how much does not change the fact that we are quite certain that such changes will occur.

And Robert Tracinski (who, judging by his portrait, just arrived from a 1950's sitcom), writing at The Federalist:

There’s no pressure: Bailey and Adler merely insinuate that you are “obscurantist”—that is, you hate new knowledge—if you don’t agree.

That, by the way—the smug insistence of global warming alarmists on presenting themselves as the embodiment of scientific knowledge as such—is one of the reasons I stopped taking them seriously. In fact, I have thought about what it would take to convince me global warming is real. And it’s pretty clear that Bailey has not thought about it.

He really hasn’t. He’s thought a lot about the various scientific claims made by those who insist global warming is a man-made catastrophe. But he has not thought about how those claims add up or how they would have to add up to be convincing. All Bailey’s piece amounts to is: here is a long list of factual claims that seem to support the global warming scare; how high do I have to pile up these claims before you are convinced?

***

Today marks the 25th anniversary of Justice Scalia's majority opinion in Employment Division v. Smith. In that case, some of you may remember, the Court abandoned it's then-30-year-old standard for deciding cases brought under the Free Exercise Clause. Three years later, Congress enacted the original Religious Freedom Restoration Act by an almost-unanimous vote, and the Act was signed into law by President Clinton. In her opinion concurring in the judgment, Justice O'Connor, joined at this point by Justices Blackmun, Brennan, and Marshall, wrote:

"elief and action cannot be neatly confined in logic-tight compartments." Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.

The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable. But a law that prohibits certain conduct -- conduct that happens to be an act of worship for someone -- manifestly does prohibit that person's free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.

The Court responds that generally applicable laws are "one large step" removed from laws aimed at specific religious practices. Ibid. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. As we have noted in a slightly different context, "'uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides.'"

Justice Blackmun, joined by Justices Brennan and Marshall, wrote a separate dissent, beginning:

This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.

Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a "constitutional anomaly." As carefully detailed in Justice O'CONNOR's concurring opinion, ante, the majority is able to arrive at this view only by mischaracterizing this Court's precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut and Wisconsin v. Yoder as "hybrid." The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions on the receipt of benefits), and to state laws of general applicability (as opposed, presumably, to laws that expressly single out religious practices). The Court cites cases in which, due to various exceptional circumstances, we found strict scrutiny inapposite, to hint that the Court has repudiated that standard altogether. In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated.

This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a "luxury" that a well-ordered society cannot afford, and that the repression of minority religions is an "unavoidable consequence of democratic government." I do not believe the Founders thought their dearly bought freedom from religious persecution a "luxury," but an essential element of liberty -- and they could not have thought religious intolerance "unavoidable," for they drafted the Religion Clauses precisely in order to avoid that intolerance.

***

Ian Milhiser thinks that "negative partisanship" has transformed politics:

President Obama’s approval ratings are hovering a few points below 50 percent, and his party is seeking a third straight term in the White House. Most analysts see this as a toss-up scenario. I see it as a highly favorable situation for the Democrats that would require a major event, like an economic downturn, to change. What accounts for the difference? At the bottom, it is about whether American presidential politics are following the same basic rules they have for decades, or whether the game has changed. I believe the game has changed, and the thing that’s changed is polarization.

...

Emory political scientists Alan Abramowitz and Steven Webster have a new paper, not yet available online, exploring the nature of the new polarization. The paper is filled with interesting findings, but the major one is an attempt to resolve a paradox. Measured by self-identification, partisanship is actually declining — growing numbers of Americans describe themselves as “independent” rather than loyal to one of the parties. But measured by actual voting behavior, the opposite is happening: Straight ticket voting continues to grow. This matches what operatives like Dan Pfeiffer have seen, and what Karl Rove saw a decade before — the swing voter had nearly vanished.

One common explanation is that it has become increasingly vogue, especially among college-educated voters, to describe yourself as independent, which implies that you form educated judgments about politics rather than blindly following the dictates of a party. Abramowitz and Webster add to this by introducing a phenomenon they call negative partisanship. That is to say, voters form strong loyalties based more on loathing for the opposing party than on the old kind of tribal loyalty (“My daddy was a Democrat, his daddy was a Democrat …&#8221 that used to prevail. The party system has split along racial, cultural, and religious lines, creating a kind of tribal system where each party’s supports regard the other side with incomprehension and loathing.

Whatever the consequences for the presidential election, I think it's clear that increasing polarization has the potential to create serious problems for our country. I just hope that "tribal system where each party's supports regard the other side with incomprehension and loathing" can be remedied somehow.

EDIT:

Oh, and Jeb Bush wants to require everyone on Medicare to sign an advance directive (aka a "living will"). I wonder if such a document really would have stopped him from interfering with Terri Shiavo, though.

 

[Aaron Strife]

Death panels?

 

[Grexeno]

I'm really beginning to love Onion John Kerry.

 

[ivysaur12]

I'm really beginning to love Onion John Kerry.

This one is from Euromaiden and I cry laugh every time I read it.

 

[Chichikov]

Huckabee (paraphrase): 'I'm announcing I'll have an announcement on May 5th'

Strong move, doing it on cinco de mayo is surely going to win over hispanic voters.

/beltway wisdom

 

[BertramCooper]

Speaking of The Onion, I recently rewatched this post-2012 election gem and got a good laugh out of it.

 

[TiVo]

Strong move, doing it on cinco de mayo is surely going to win over hispanic voters.

/beltway wisdom

 

[Teggy]

TiVo is on gaf? I have so many of you in my house!

 

[Lucky Forward]

Mike Huckabee Says You Should Wait Until Obama Leaves Office To Join The Military

Huckabee told Iowa talk radio host Jan Mickelson that the Obama administration “orders its chaplains to put its Bibles away, not to pray in Jesus' name, not to counsel people on the issues of sexual morality.”

He then suggested that parents should stop their children from enlisting until America has a new commander in chief.

“I’d wait a couple of years until we get a new commander in chief that will once again believe ‘one nation under God,’ and believe that people of faith should be a vital part of the process of not only governing this country, but defending this country,” he said.

I look forward to Huckabee and Ben Carson trying to out-crazy each other in the Republican debates.

 

[Metaphoreus]

Today, the Fifth Circuit heard argument in Texas v. U.S., the case challenging DAPA. The federal government is appealing the District Court's preliminary injunction against implementing DAPA. Hopefully they'll put up the audio soon, but I wouldn't hold my breath. The most recent oral argument recordings available on the Fifth Circuit's website are from April 9.

Should have held my tongue. Here's audio from yesterday's oral argument. Summary from Politico:

A federal appeals court signaled Friday that it is unlikely to allow President Barack Obama’s request to go ahead with a new round of relief for illegal immigrants, making it likely that the White House will have to take its legal case to the Supreme Court within days.

The oral arguments before the 5th Circuit U.S. Court of Appeals in New Orleans were being closely watched by both sides in the heated immigration debate as a sign of whether the administration will be able to move forward with its plan to grant quasi-legal status and work permits to about 4 million illegal immigrants. Notably, one Republican-appointed judge used the president’s own comments to put the Justice Department on the defensive.

By the time the court session wrapped up, it appeared likely the appeals judges will rule, 2-1, against the administration’s request for a stay of a district court injunction, which would most likely leave the Supreme Court to decide whether the program can move ahead while lawsuits play out in the states. If the administration can’t get its new moves underway sometime this year it may have difficulty getting them done before Obama leaves office.

The sole Obama appointee on the panel wasted no time before intimidating immigrants in open court:

OK, the INA does say "go," but this program streamlines the "go." You can't catch somebody unless you identify them. So this, actually, is a deportability-type memo; it's getting fugitives into the system.

The attorney arguing for the U.S. agreed that this was one implication of DAPA.

 

[NYCmetsfan]

Should have held my tongue. Here's audio from yesterday's oral argument. Summary from Politico:



The sole Obama appointee on the panel wasted no time before intimidating immigrants in open court:



The attorney arguing for the U.S. agreed that this was one implication of DAPA.

OK? And? I think the overall tone was completely different but I can't tell with your context. Nobody ever denied it could be used that was but the judge that I criticized insinuated it should and would.

This just seems to just be saying it tracks who has deportation seniority in you will which is what the bill does. He doesn't threaten them with the same way dispute you seeing deportation as the threat and not the overall tone of the judge and his concern trolling comments in the excerpt I posted. And if in context that's what he was doing than I think that's deplorable behavior too.

This whole case is disgusting peoples lives are being ruined by the politics of this. The president has the authority and no one is being harmed so there is no reason for an injunction

 

[Metaphoreus]

This whole case is disgusting peoples lives are being ruined by the politics of this. The president has the authority and no one is being harmed so there is no reason for an injunction

Relax, I'm just teasing you. I don't think either judge was trying to intimidate anyone. But whether the president has the authority to do what he did in the way he did is the basis of the case. I'm still not sure what the answer is.

Also, I received an answer to the question I posed yesterday:

I wonder what he means here? Does he mean that the only "states' right" in the Constitution was the legislatures' right to appoint Senators? Or does he simply mean what a number of conservative/libertarian commenters have argued--that the direct election of Senators took away the states' ability to meaningfully restrain federal power?

[T]he justice said he told the class he'd spoken to earlier Thursday about people complaining about the loss of states' rights. "The federal government gets into everything and blah, blah, blah. Well, what do you expect?" he said.

"What was the institution, or what is, the institution that protects states' rights against the federal government? The federal government is supposed to be a government of enumerated powers. When it goes beyond those, who protects the states?" asked Scalia. "The answer the class gives, or anybody would give, is the Supreme Court."

"That's silly. I mean, the court is a federal Supreme Court. I'm a fed, I'm appointed by a federal president, confirmed by a federal Senate. Federal power is my power. I have no interest in reducing federal power and protecting the states."

"The element in the Constitution that used to protect the states was the Senate, because the Senate was originally elected, not by the people of the states, but the state governments," Scalia said. "What a difference. Whenever the federal government got too big for its britches and was enacting legislation that was the proper power of the state, the senator would get a call from the majority leader back home saying, 'you vote for that one, you're out of there.'"

That's not the case anymore.

"We changed it in a fit of populism when we adopted the 17th Amendment, providing for the direct election of senators," Scalia said. "We now have senators, many of whom have no connection to state government, they've never been in state government, some of them have never even been in the state, they just moved there to run.

He takes that as a lesson not to tinker with the Constitution. I think that's the wrong lesson to be drawn.

 

[Oblivion]

Good morning guys. Here's a little laissez-faire silliness to start your day:

http://www.politico.com/story/2015/04/marco-rubio-florida-insurance-market-117055.html?hp=t2_r

Oh good, you already posted this. But forgot some of the equally hilarious parts. Why is Rubio's little system so unpopular and shitty? Because of Obama of course:

Rubio spokeswoman Brooke Sammon said the senator continues to support a “true free-market exchange,” and she blamed Obamacare’s subsidies for luring buyers away from Florida Health Choices.

“What’s in Obamacare is neither free-market or truly an exchange,” she said. “It is unfortunate that this disastrous health care law is impacting the Florida Health Choices program, which is exactly the kind of consumer-based health care solution Americans are looking for."

lol