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The difference between my preferred originalism and your consistent with their theory is your judicial theory does not constrain you and you can just make up law. That’s what living constitutionalism accomplished. If I play the game by those rules. You win. We will not be playing the game by those rules anymore.
I will no longer play the game those rules. Common Good Judicial Theory is a real consistent theory. It too lets me justify any reading into the law.
If neither side is constrained by text then we have created a Senate and not a Supreme Court.
Just as you can come up with countless sources and examples where the people you would call living constitutionalism adherents twist and interpret the law that besmirch their professed theory, I think I can also find countless sources and examples where the people I would call originalist adherents twist and interpret the law that besmirch their professed theory. I'm not sure why you think your side are "guardians of constraint and defenders against legislating from the bench" and that somehow my side "shot first" and therefore you feel justified in throwing the rules of the game. Don't use us as an excuse.
From my perspective, as society polarizes, the rules breakdown. Both sides feel bitter from transgressions of the others and whole swathes of people like you want to just flip the game and start with something new. What I worry about is that in the zeal and rush of grabbing power, boots are pressed on human faces. The real hard work, and real peaceful solution, is to still be at the table and keep debating and arguing.
Anyway, on the other hand, obviously you're right. The Supreme Court has always been just a different level of political voting. In a way, the makeup of the court represents what the people must have wanted at some point, just several time removes. To me that's fine, they are the best society could agree with at that particular moment in time. And hopefully they are good jurists who can guide and constrain government from overstepping.
And look, I'm not even saying originalism is wrong. From my perspective, assuming democracy survives, if all judges are always all originalists and they are actually adhering to straight and narrow originalism, guess what, the people would organize and vote and make sure laws are written in such a way that originalists can't refute the intention of the laws. Or yes, in the current system, they vote in legislators who would not appoint originalist judges. And the pendulum swings and it goes on and on.
I can even tell you a bad example on my side of the above. Look at this quote by a recent case in NYC "I believe the facts in front of me shows that this defendant poses a significant danger to society,’ said Judge Indira Khan. ‘I am very appalled by the alleged nature of this case and the potential for greater harm, however my hands are tied.’ . Notice how the judge hands are tied? Now one could say maybe she didn't try hard enough, afterall she is a Dem judge in a very blue city, but I am choosing to believe her at her words instead of thinking she just lies.
For what its worth, I really would rather people bother to lie than to not lie at all. That would be a real breakdown of shame, a real arrogance of the dominant. "They don't even bother to lie badly anymore". At that point what would the minority do?
First. Your side doesn’t even pretend they are NOT legislating from the bench. It’s why they use terms like “Living Constitution” or nominate a wise Latina. They aren’t even pretending that they are not legislating from the bench. Whether the right has legislated from the bench I can only think of times when the legislated in the lefts direction like Sandra OCconnor supporting affirmative action as a temporary measure for 20 years despite being unconstitutional.
If the law is unbiased which is the mythology on the law then there shouldn’t even be Republican or Democrat judges. They are just applying the law as written. The only reason for the GOP to show restraint is so the average man still believes that myth, but textualism ties their hands when the other side applies theories that give them far more latitude to create policy how they want.
I don’t believe in lying. It’s a cancer. Exception being for politeness telling your aunt she looks good.
They clearly do at least lie and try to stay consistent and adhere to the text. Kagan famously says "We are all originalists now". Sotomayor has a longer track record of being further left of the court's median center so I take her as an example, but even for her sometimes there are weird results like Michigan v. Bryant or Sykes v. United States or Gamble v. United States or Snyder v. Phelps, etc. (As an aside, found that Ginsburg and Scalia likes to dissent these cases, not together, but both would dissent). Cases like these are especially what I mean when Justices' jurisprudence can and sometimes bring them to weird places as long as they're consistent in their theories. I'm going to hedge here that I'm at best an amateur reader of the law but when a liberal justice joins the like of Alito or Thomas, that should be signal that blue judges are less hacks than you think they are.
When red judges reach blue outcomes you count as legislating for the left. When blue judges reach blue outcomes, you count as "legislating from the bench". When blue judges reach red outcomes (like I pointed out above) you consider that "applying the law". When red judges reach red outcomes you also consider that "applying the law". You've essentially already categorized the things you agree with as right and the things you don't as wrong.
Just like the blue extremists you rail so hard against, since you both didn't write better laws that twists and ties the hands of judges into making clear verdicts, you both now focus on stacking the deck and just get to the win without having to go through the hard problem of doing the actual persuading and uniting and legislating.
Well yes, I was just pointing out the difference when people, of any stripes, don't even bother to lie vs when they still do. Of course then there is the difference between bother to lie vs believing the lie. Then there is the difference between a lie and a truth. There is a whole spectrum of reality there.
Sometimes agreeing with red judges on small issues or non-partisan issues does not mean they are unbiased. You don’t need to make up the law in every case to be a partisan hack. This is akin to saying El Chapo is a good guy because he’s a good father.
If you’re going to accuse me of being biased then atleast show me a case where a conservative judge ruled in a conservative way contra the law? Hopefully they do that partially in the birthright case but I have my doubts.
I am not going to justify lying. No it is not better when judges lie to the public. If the are acting as Senators I would rather they just say I have power and I’m fucking you than claim some moral high ground that they wrote a 100 page essay to say their not fucking me.
I respect the judge who said the first amendment doesn’t apply in her courtroom. Pure I have power. I get to choose the rules. I don’t give a shit about the constitution and you’re going to jail. It’s honest. No 100 page opinion why she’s doing good work. Just pure it’s the state of NY and I win and you lose here.
So because you can't win, and because you feel hurt that "the other guys did it first" (which btw is debatable really) so you want to feel justified loading your own partisan hacks on the court?
There are always differences in degrees. And that's just a bad analogy in general. Being a good father is some evidence of being a good guy, but so is being a drug kingpin, but those two things live in different moral categories and can be mutually exclusive. When I say a judge sometimes agrees with the other side, that is not unrelated to the question of judicial bias. It is at least some evidence about how the judge has less or more bias.
"Contra the law" is doing a lot of work. It's constitutional law, who would say they are giving an opinion against the law? Again, the one who wins will "defines" what the law means (at least until it's reversed)(and then maybe reversed again). If you take "affirmative action" as your "contra the law", damn liberals are going to cry foul about "Bush v Gore" forever. You get to set the goalpost and choose what's right based on your criteria. That's already legislating from your own personal bench.
Look man, the liberals can just say the same thing about you in reversed. From my perspective, the red judges are lying about "originalism" and "textualism" anyway. And certainly from the perspective of the blues, the red judges are also claiming "some moral high ground that they wrote a 100 page essay to say their not fucking [the blues]". Your accusation of interpretive word games flow both ways. Make the law and constitution less ambiguous and justices won't be able to interpret their way out of ambiguities.
Ok, I see, so you're more angry at what you call "lying". You rather have people give it to you in simple terms you understand "I like this so I rule in its favor, I don't like this so I rule against its favor".
I will now step back from my motte of "I really would rather people bother to lie than to not lie at all" because that was bad on my part to lead down this confusing conversation. I will step back to the bailey of "enough people believe in a lie then it becomes truth (and maybe even law)". You can load all the partisan hacks you want to get the short term rulings you want, but you definitely won't win the hearts and minds of people long term. And they will get their freedom and powers back at some point, and then what you achieved will be gone as well. And thankfully within the system of the US, this means the pendulum swings faster.
And look, what I said above stands for the blues too you know. I'm sure from your perspective the partisan hacks of the blues made plenty of short term disastrous rulings that need reversed.
The real hard work is to make laws that more and more agree with and unambiguous for judges to rule with, which means debate, which means opinions, which mean rulings that get reversed. Wow life is messy, who knew.
No. I want conservatives to be the same as liberals. They turn the SC into a fantasy world or a Senate when they want to. I want the same benefits that liberals have. When they want gay marriage they make up law. When they want Roe they make up law.
Nothing you say is going to convince me that they’re not all liberal hacks with no respect for the law. I don’t care if they’re 160 IQ and write eloquent opinions or 85 IQ and just say they did something because they wanted to. To quote The Office, “It’s the same Picture”. A prostitute is still a prostitute whether she’s giving $10 hand jobs or getting $500k a night. A partisan hack is well Ruth Ginsburg because she wrote law which is NOT her job.
And Yes making up law when you control the SC is beneficial to your side. I’m down with that since we own the court now.
At this point, you should drop the language about judicial restraint, judicial bias, and respect for the law. Your position from my understanding is: “Blues used the Court as a political weapon, so I want Reds to use it as a political weapon too.” That may be honest, but it is not a rule-of-law position, it's just power politics.
The important distinction is between “this is bad legal theory” vs “legal theory does not matter.” You can think Roe or Obergefell were badly reasoned, yet that doesn't have to lead right away to "judges should openly act like partisan legislators when our side controls the Court". Once you say “we own the Court now,” you have basically accepted the premise that the Court is just another legislature. And if that is true, then you have no principled objection when blue judges do the same thing next time, or when blues try to pack the Court.
Roe is actually a useful example here. Even if it helped liberals for decades, that was, as it turns out, temporary. Roe made the conflict more bitter, less settled, and more legitimacy-destroying. Your version of judicial nihilism would create the same problem in reverse.
So I understand the impulse for revenge, but that is what it is: revenge. It is not really about the Constitution or the rule of law anymore. It is about using the Court as a weapon because you believe the other side did it first. But there will always be people to your left and to your right, and no faction gets to bludgeon everyone else forever because that is not a stable or decent way to run a constitutional system.
It’s game theory. I prefer both sides follow the letter of the law. Once one side has defected the optimal strategy is also to defect.
Sub-optimal outcome but I do not believe the left has acted in good faith.
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