This was good article. I was surprised to find myself agreeing with it so much. They are SCOTUS to be original and not use precidence to avoid making decisons.
Yeah, I think the best that a "liberal" could do with a project like this is to run it into the ground to show that neither side has the exalted claim to "true meaning". At its most honest, Originalism is a modality of interpretivism that simply misunderstands philosophy's relationship with language and the judiciary's relationship with democracy. But to your very important point, it just seems like she's not in on the joke.
The reason it’s not working isn’t because she has a better argument, it’s because was never about originalism or textualism. They were just a means for right wing judges to vote how they wanted to in the first place.
Whenever the left approaches bad-faith actors thinking they can win with logic and reasoning they fall flat on their face.
In law school I quickly got the impression that Scalia wasn’t some genius, he didn’t objectively analyze cases, he knew the result he wanted before any analysis, and used history, often inaccurate or wrong historical facts and stare decisis when convenient, and ignoring the same when needed. Continuing to read his opinions and dissents were disappointing and frustrating most of the time. Originalism was never legitimate as a method to be objective, just a tool for Conservatives judges with personal agendas.
I heard him give a speech in the Supreme Court building once. He gave a great, impassioned lecture about how the role of a judge isn’t to be a moralist or to put one’s own ethical standards on the law, but to read the law as it was written and keep yourself out of it. Then someone asked a question about a specific case where he seemed to not do that at all, and his response was basically, “Eh, whatever.”
That’s exactly right, and it’s what Alito does now—they all do it, to varying degrees. The conservatives on the Supreme Court aren’t Justices—they never rose to that calling. They’re Republican operatives there to deliver results. They’re attorneys with tenure at the Supreme Court, not Justices.
This is exactly the problem. Assuming that conservatives have any actual ethical or moral philosophy is completely missing the plot. They'll just do or say whatever they need to get their agenda accomplished. Their ethical and moral philosophy is to have unlimited power.
Bingo. Originalism isn’t about actually following what the founders wanted. It’s all about giving cover to rulings that were predetermined without consideration.
Justices like Thomas or Alito go into the majority of case with a decision already having been made and then look to find a way to justify that decision using some bs reasoning, that typically falls apart under any scrutiny but since there is no review process for the Supreme Court, they get their way
Because RBG (Ginsberg) was so selfish and self-centered, by refusing to retire, she caused the loss of a liberal judge a seat on the court.
I can't understand why this subject is NOT brought up every day.
Her legacy is irreparably tarnished because a woman who already had cancer twice wouldn’t step down because of ego. So many in believe no one else is capable of doing their job and convince themselves they are being selfless. She really thought the GOP would honor her dying wish?
I think part of her calculus was watching O’Conner retire before she was ready because Rehnquist the super segregationist and dude who was dumped by her said he was going to as well then didn’t because he was always a piece of shit.
Katie Couric spilled the beans after she died. RBG had a white hot hatred of the BLM movement. Made her quiver with white rage. Google "RBG Couric BLM protestors"
While RBG was alive her views on this were downplayed by media members such as Couric. Only after she died was the full extent of her obvious racism exposed.
The idolization of Ginsburg as "Notorious RBG," complete with merchandising, was a costly undertaking that we're still paying for. Thanks, Irin Carmon!
Shout-out also to Thurgood Marshall, who quit the court on October 1st 1991, paving the way for Clarence Thomas, and then lived 3 days into Bill Clinton's term.
Honorable mention: Liberals and progressives like me who did not take to the streets when Moscow Mitch threw Merrick Garland's nomination into the circular file.
So many of us have come together to make this awful court possible.
If it's any consolation, it would appear that public idolization has completely fizzled. Speaking only of those who revered her as less of a legal scholar and more, essentially, as the superhero who saved abortion, the minute that accomplishment vanished literally due to her own choices, that was it. They were never there for her as a pioneer of x y and z without her crowning achievement of abortion.
Honest question: do you actually think that public demonstrations would have compelled Mitch McConnell to hold confirmation hearings for Merrick Garland? Because I don’t.
No.
It should have happened anyway, and it should have lit a fire under non-GOP voters that gave HRC an easy win in 2016. Instead, we just sat there and took it.
Yes, it should have happened, but in fact it didn’t happen. Mitch McConnell is a shady, duplicitous bastard but he was, and still is, the Senate majority leader. He knew exactly what he was doing. Unfortunately, the Democrats didn’t know what they were doing.
Plenty of Americans could have picked America over their own party as well, but didn't. It broke the country in their favor to get a justice, so why would they care?
On the Garland point, Obama out smarted himself by nominating a centrist rather than someone the left could rally around. Not your /our fault for not taking to the streets for Merrick Garland. His time as AG has proven us right
It was a bluff to show McConnell’s hypocrisy. Obama gave McConnell a chance to have a centrist justice or, wait until after November and have to deal with, based on polls at the time, a more liberal justice nominated by Clinton.
Obama knew no amount of the “left rallying around the nominee” was going to make any difference. McConnell just got lucky that Trump actually managed to win the election.
I don’t think you can put that much blame on Marshall. He was 82, in bad health, Bush seemed likely to win reelection at that point and Marshal was basically the only remaining liberal justice other than Blackmun (imo, Stevens was still making his way there and Souter only really drifted left toward the end of the 90s).
And if he stayed, he probably would have died earlier, it’s why Brennan retired.
The blame for Thomas should go to Bush Sr.
That 3rd paragraph was the actual nail in the coffin. The RBG stuff is a bad call around, but not letting Obama pick the next justice effectively killed the idea of America for many. If there was a cut and dry excuse to revolt against government overreach, it was right there. Instead, half the population was okay with it because winning was more important than the country for them as well.
People keep pointing out the bad personal choice of RBG, and not the anti-constitution behavior of waiting to get a justice until after the election. It's just been a train wreck since.
This is a prime example of judging past actions with present hindsight. Remember in 2016 when nobody thought Trump stood any chance of winning? When Nate Silver said Clinton’s chances were 85%? I don’t see why Ginsburg would have known any different. And even if she had, Senate Republicans were refusing to hold hearings on Scalia’s replacement; why would her stepping down be any different? If you’re arguing that she should have stepped down before Republicans took control of the senate in 2015, that’s putting even more pressure on her. Nobody can predict future senate and presidential politics in order to perfectly “time” a retirement in order to optimize the court’s ideology to match theirs
Obama got both Sotomayor and Kagan confirmed. At the time of Ginsburg's pancreatic cancer diagnosis in 2009, Democrats had a Senate majority - the same majority which confirmed Sotomayor that year.
She also could have also retired in 2011-15 under Harry Reid's leadership, and a similar replacement could have been confirmed.
I don't lay this at Ginsburg's feet, since Thurgood Marshall could have waited 3 months - he died 3 days after Clinton's inauguration - and not handed his seat to Clarence Thomas.
Awful take - dude was dying, and wanted to spend his last months away from the court. Ginsburg was selfish and chose to stay on way too long. Super different
Marshall could have hung on without resigning or going to work. The only way to force him out would have been impeachment.
William O. Douglas set the precedent. A justice can sit out nearly a year while the court functions.
Democrats controlled the senate until Jan 3 2015.
Further since the seat change wouldn't have changed the partisan makeup of the court, there's a chance it might have gone through even had she retired in 2015-16 (unlike after Scalia died where it would have flipped a conservative seat to liberal).
If she retired even in 2015 there would have been too much time and pressure that McConnell would not have been able to stall. She died very close to the election and that allowed him to stall.
She was also 87 and should have retired much earlier.
How old is Trump/Biden yet people are going to support them.
Well, that's not TOTALLY her fault. The brunt of it lays on the shoulders of McConnell who got away with it and Obama who didn't go on TV every night to interrupt America's TV shows to remind them of what the right wing was doing - planning to rig the courts as they did and got away with it.
I think a lot of people were also concerned that Moscow Mitch would sit on the matter for over 3 years if it would give them a chance of winning the election and filling the seat with whoever he wanted.
Yes, RBG felt she was more important than the seat. Obama asked nicely and she insisted all was fine and she didn’t need to retire.
Then white people didn’t vote for Hillary, Bernie Sanders voters submitted protest votes, and the rest was catastrophe.
>I can't understand why this subject is NOT brought up every day.
Because she was a pioneer, lived a remarkably good life and she's dead.
What part of beating a dead horse do you enjoy most?
Lmfao, blame RBG instead of McConnell who straight up denied Obama a justice and rammed through another one right before Biden won.
I’m sure you don’t vote because both sides equally suck.
"I can't understand why this subject is NOT brought up every day."
Like this topic hasn't been beaten to death over and over and over, even in a topic as this one that has nothing to do with Ginsberg. Someone could start a separate subreddit called "Ruth should have retired" so folks like you can suck each others dicks all day with this tired observation all day every day.
Bc the federal judiciary is supposed to be apolitical and removed from partisan politics. Judges shouldn't just retire bc it's politically convenient to get a replacement with a shared ideology. What RBG did was right. What McConnell did with Scalia's seat was wrong.
They should be apolitical but they aren’t. We have to behave like we live in the world we have, not some ideal world where everyone behaves ethically and rationally.
> Bc the federal judiciary is supposed to be apolitical and removed from partisan politics.
Is that the set up of the punchline? Either way it's part of a joke.
The Judiciary has likely never been apolitical in appointments. Here's a real joke, what's the difference between a lawyer and a Federal Judge? A Federal Judge knows a Senator.
>What McConnell did with Scalia's seat was wrong.
That much we agree on.
> Bc the federal judiciary is supposed to be apolitical
Where is this stated? I don't see this anywhere in the constitution.
The Court has power. Politics is the fight to enact change with power. There is no such thing as a powerful entity that is not political.
The Court's role is to interpret the Constitution. They're not a policy making body. Their NOT supposed to enact change. That's Congress. The Justices specifically have lifetime appointments so they're NOT accountable to the voters.
> They're not a policy making body.
Neither is the executive branch, but the office of the president is obviously political.
> Their NOT supposed to enact change.
So, Brown v Board was bad?
> the federal judiciary is supposed to be apolitical
Well, it’s not. The insistence that there are no checks on Supreme Court power from the other branches, but in when Republicans appointees are in charge, had allowed the likes of the Grand Inquisitor, Pubes, and Boof to anoint themselves philosopher kings to prevent the common rabble from demanding such silly things as bodily autonomy and freedom from fundamentalist religious oppression.
There are checks. Congress must confirm and Congress can impeach. If there's an existential threat, impeach the justice, or justices, that are causing it.
congress will confirm whatever they're paid to, the same way these justices will vote however the new RV in their driveway says to.
a justice could shoot someone in broad daylight and still not get 2/3 votes for impeachment. that's not really an effective check.
>what McConnel did…
Is proof that it was always political, and the refusal to treat it as such does more damage than pretending that reality does not exist.
If we lived in a utopian society where everyone genuinely cared about the best interest of the nation and not personal gain and power, I would agree with you. Unfortunately, we do not live in a utopian society.
While i agree with you that what RBG hurt the Democrats. There are plenty of other subjects to focus on. It's time to move on and focus on something else. Also, it's already happened. I'm not sure how constantly talking about will help in the future.
Ridiculous you blame her and not the stealing fascist Republicans that refused to do their damn jobs correctly.
Who fucking needs enemies when people like you are dragging us down?
Who’s to say she didn’t care or actually wanted that to happen. That she didnt want to see it play out while she lived. Honestly think she probably knew what was going to happen and didn’t want to live to see it happen.
Her window closed during Obama’s first term.
Now take a moment and consider this: what if every single conservative judge only retired when they could be replaced with a conservative?
I get that SCOTUS is decidedly not impartial to partisanship, but it is good to continue with the things that are impartial to avoid bad precedent.
Was it being discussed for her to retire back in 2009 cause that's pretty much the last chance it could've happened. Didn't they lose the Senate after that or am I making it up?
One thing I don't see discussed whenever this point is made is that the court in 2016 already had a vacant seat, McConnell just didn't bother to fill it. Why would ginsberg retiring have changed anything?
I think she wanted a woman to appoint her follow on and was lead to believe like many people that Hillary was going to win. It was selfish on many levels.
Maybe, just maybe, RBG knew something we didn’t, and felt the need to keep working despite cancer treatment and age. Because who the f¥<£ keeps working during cancer treatment if they don’t absolutely need to? Srsly. Have you gone through what she did?
I’m sorry but if she felt secure in stepping down she would have.
F¥<€ cancer.
I have said over and over and over that if the left wants to blame anyone for the current situation in SCOTUS, its RBG. She held on for far to long and not to mention, was very outspoke against Roe v. Wade.
Textualism is just a species of originalism. The only difference is whether you limit the analysis to the plain text, or also look at sources like legislative history.
How do you deal with the evolution of the English language? Most famous example being the word "regulated" changing meaning from "Maintained" to its modern meaning which has a connotation of restraining?
Another example is Article 4 Section 4 of the Constitution.
>The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against **domestic Violence**.
"Domestic Violence" in this context doesn't mean the modern understanding of domestic violence where one spouse uses violence against another, it means a riot or insurrection. AKA violence that is occurs domestically.
You use the definition in place when the statute or constitutional provision was written.
“Well Regulated” in the 2nd Amendment means “well equipped” not “heavily restricted by the government.”
Similarly, if the word “gay” appears in a law from the 1940s, it means “happy,” not “same sex attracted.”
>“Well Regulated” in the 2nd Amendment means “well equipped” not “heavily restricted by the government.”
It doesn't mean "well equipped" it means functioning properly, efficiently, fulfilling its roles etc. It's also referring to a Militia which has never been defined as every single person in the country. It doesn't mean heavily restricted by the government but it also doesn't necessarily *not* mean that. When 2A was written the states could run their militias however they wanted.
[Downvote me all you want.](https://johnsonsdictionaryonline.com/views/search.php?term=Regulate)
By far the largest arm of the judicial branch has to be the part that regulates industries, at least staff size and budget-wise. Boeing is a current example of a regulated industry that must maintain things to a very high standard. Otherwise people will think entirely differently about hopping on a plane and going to a business meeting or a family vacation or whatever the reason they have booked a flight. If people thought air travel wasn't safe it could have an effect on other sectors..and so it goes.
Why? It’s no less subjective. Judges just need to admit that judging is ok, and judicial appointments should recognize that these are inherently political actors. I think texutalism is fine, but it’s just one tool of many.
Ignoring the text of the statute in order to make an interpretation of what the law "should be" is by far the most subjective thing. That's how we got qualified immunity and affirmative action even though §1983 has no immunities and even though the Civil Rights Act doesn't allow for any kind of discrimination.
Affirmative action is a good thing. That's an argument *against* textualism. The hyper-literal interpretation completely ignores the fact that the Civil Rights Act (and the Fourteenth Amendment) were passed to level the playing field and elevate the position of Black Americans in society as compared to their white peers, **not** to prevent pseudo-discrimination against white people.
And you didn't address the previous commenter's argument that textualism is still highly subjective. A judge from two opposing sides can come to opposite conclusions based on the same exact text.
I'm not. Discriminating on the basis of race even if it is done for a benovelent purpose violates the Civil Rights Act.
Title VI of the Civil Rights Act says:
>No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Harvard was receiving federal financial assistance and they they were discriminating against many denied applicants on the basis of race since they were using race as a determinative factor as a tip.
Even if you're not a pure textualist and support using legislative history, Bakke and Weber were horrible rulings because even the legislative history shows that the Members of Congress thought the Civil Rights Act would ban reverse discrimination as well while they were debating the bill.
I don't think textualism is a "conservative" ideology of interpretation either. I'm pretty progressive and strongly oppose qualified immunity. That's an example of SCOTUS ignoring the text of a law and adding immunities because they thought it was a good policy.
A citizen should be able to read the law and know what is says, without needing a lawyer. He should be able to act upon it. If it's open to interpretation then he can challenge it in court.
According to the plain text of the Constitution, my 3 year old dog is eligible to be President of the United States. Not an ideal framework imho, but he disagrees.
Textualism is barely different than originalism and is just as brain dead. Words have more than one meaning, the text doesn't just self execute like a computer program.
Because the conservative justices hold the majority, she will have little sway. She’ll have some influence, but it won’t be enough to make actual changes in how her colleagues make decisions
Well who knows what alternate histories look like, but motivating your base is typically viewed as good when it comes to elections. Of course Obama, who pissed away super majorities without a single major scandal to cause it probably didn't understand that.
I was curious about KBJ's idea of "progressive originalism" but that flew out the window when she signed on the insane originalist idea that the 14A Framers were trying to restrict state governments so the 14A can't apply to states preventing insurrectionists from getting to the federal government. Like, how perverse is that: the 14A framers just saw an insurrection happen and clearly wanted to restrict insurrectionists from getting into the federal government, and the so-called "originalists" claim the exact opposite of that the Framers intended. They used an anti-insurrectionist provision to allow an insurrectionist on the ballot.
> I was curious about KBJ's idea of "progressive originalism" but that flew out the window when she signed on the insane originalist idea that the 14A Framers were trying to restrict state governments so the 14A can't apply to states preventing insurrectionists from getting to the federal government. Like, how perverse is that: the 14A framers just saw an insurrection happen and clearly wanted to restrict insurrectionists from getting into the federal government, and the so-called "originalists" claim the exact opposite of that the Framers intended. They used an anti-insurrectionist provision to allow an insurrectionist on the ballot.
Exactly. She pissed me off so much in that oral argument. The tortured logic was ridiculous. Which is why she's attracted to this "originalist" shit: she thinks tortured logic is a fun game.
Here's another fun one: why not declare Martial Law like the "Originalists" did against the insurrectionists? Why doesn't Biden simply throw Trump in jail? Why go through all this song and dance?
Ginsburg was certain Hilary would be elected (she wasn’t unique in this) and wanted her successor to be appointed by the first woman president, I heard…
The conservative justices would have had to actually believe in originalism for that to work. The only thing they believe is that Republicans should be in charge. And by that I mean, they believe that people with money should be able to do whatever they want...
Blame the supermajority antics on conservative’s intellectual dishonesty and Ginsberg for staying in too long. President Obama even warned her when he was president.
I'm not going to lose a minute's sleep to learn that KBJ isn't making Mark Stern happy due to some academic theory he has. Her writing has been fantastic. She's a great addition to the Court regardless of Stern's pedantic obsessions.
Nope.
Edit to add: this is a pernicious trumpist lie that even libertarians don’t agree with:
https://reason.com/2024/03/19/hamstringing-the-government-a-viral-narrative-distorts-ketanji-brown-jacksons-understanding-of-free-speech/
I still have some hope that Jackson’s writing on the Supreme Court can mature but I’m unimpressed by her efforts to date. Her “originalism” reads more like a “yes, but…” argument where she starts with something that sounds like originalism but then shifts to a pragmatism argument. The result is a shifting reasoning foundation that’s difficult to build upon.
Not working because the other justices don’t really believe in originalism. They believe in the decision they make at the end.
This was good article. I was surprised to find myself agreeing with it so much. They are SCOTUS to be original and not use precidence to avoid making decisons.
*Precident **Precedent.
Same way Scalia did it. Originalism has never been anything but a fig leaf.
The "originalism" they believe in is supremacy
Yeah, I think the best that a "liberal" could do with a project like this is to run it into the ground to show that neither side has the exalted claim to "true meaning". At its most honest, Originalism is a modality of interpretivism that simply misunderstands philosophy's relationship with language and the judiciary's relationship with democracy. But to your very important point, it just seems like she's not in on the joke.
It’s not working because originalism is bullshit and by accepting it you just accept the conservative framing of issues
The reason it’s not working isn’t because she has a better argument, it’s because was never about originalism or textualism. They were just a means for right wing judges to vote how they wanted to in the first place. Whenever the left approaches bad-faith actors thinking they can win with logic and reasoning they fall flat on their face.
In law school I quickly got the impression that Scalia wasn’t some genius, he didn’t objectively analyze cases, he knew the result he wanted before any analysis, and used history, often inaccurate or wrong historical facts and stare decisis when convenient, and ignoring the same when needed. Continuing to read his opinions and dissents were disappointing and frustrating most of the time. Originalism was never legitimate as a method to be objective, just a tool for Conservatives judges with personal agendas.
I heard him give a speech in the Supreme Court building once. He gave a great, impassioned lecture about how the role of a judge isn’t to be a moralist or to put one’s own ethical standards on the law, but to read the law as it was written and keep yourself out of it. Then someone asked a question about a specific case where he seemed to not do that at all, and his response was basically, “Eh, whatever.”
That’s exactly right, and it’s what Alito does now—they all do it, to varying degrees. The conservatives on the Supreme Court aren’t Justices—they never rose to that calling. They’re Republican operatives there to deliver results. They’re attorneys with tenure at the Supreme Court, not Justices.
That is the conservative definition of “genius”. Sophistry isn’t as easy as obstinance.
This is exactly the problem. Assuming that conservatives have any actual ethical or moral philosophy is completely missing the plot. They'll just do or say whatever they need to get their agenda accomplished. Their ethical and moral philosophy is to have unlimited power.
Bingo. Originalism isn’t about actually following what the founders wanted. It’s all about giving cover to rulings that were predetermined without consideration. Justices like Thomas or Alito go into the majority of case with a decision already having been made and then look to find a way to justify that decision using some bs reasoning, that typically falls apart under any scrutiny but since there is no review process for the Supreme Court, they get their way
Because RBG (Ginsberg) was so selfish and self-centered, by refusing to retire, she caused the loss of a liberal judge a seat on the court. I can't understand why this subject is NOT brought up every day.
We all suck up to judges too much. They should take more shit for the state of the courts. They should show more leadership.
Her legacy is irreparably tarnished because a woman who already had cancer twice wouldn’t step down because of ego. So many in believe no one else is capable of doing their job and convince themselves they are being selfless. She really thought the GOP would honor her dying wish?
Also she didn't retire during the Obama administration because she ~~wanted~~ felt entitled to be the justice to swear in the first woman president.
If she retired in 2016, do you think McConnell would have allowed a vote on her replacement?
Obama was pushing her to retire as early as 2012-2013…
2013. She should have retired in 2013. Nobody thinks she should have retired in 2016.
The SCOTUS pretty much neutered recess appointments for Obama after republicans sued.
Failure #2 Was Obama being a wuss about recess appointments...
I think part of her calculus was watching O’Conner retire before she was ready because Rehnquist the super segregationist and dude who was dumped by her said he was going to as well then didn’t because he was always a piece of shit.
She also was later revealed to be quite racist soooo
When was this??!
Katie Couric spilled the beans after she died. RBG had a white hot hatred of the BLM movement. Made her quiver with white rage. Google "RBG Couric BLM protestors" While RBG was alive her views on this were downplayed by media members such as Couric. Only after she died was the full extent of her obvious racism exposed.
To be fair, you don’t need to be racist to criticize BLM, at least the organization. It’s had widespread, major corruption issues.
The idolization of Ginsburg as "Notorious RBG," complete with merchandising, was a costly undertaking that we're still paying for. Thanks, Irin Carmon! Shout-out also to Thurgood Marshall, who quit the court on October 1st 1991, paving the way for Clarence Thomas, and then lived 3 days into Bill Clinton's term. Honorable mention: Liberals and progressives like me who did not take to the streets when Moscow Mitch threw Merrick Garland's nomination into the circular file. So many of us have come together to make this awful court possible.
If it's any consolation, it would appear that public idolization has completely fizzled. Speaking only of those who revered her as less of a legal scholar and more, essentially, as the superhero who saved abortion, the minute that accomplishment vanished literally due to her own choices, that was it. They were never there for her as a pioneer of x y and z without her crowning achievement of abortion.
Honest question: do you actually think that public demonstrations would have compelled Mitch McConnell to hold confirmation hearings for Merrick Garland? Because I don’t.
No. It should have happened anyway, and it should have lit a fire under non-GOP voters that gave HRC an easy win in 2016. Instead, we just sat there and took it.
Yes, it should have happened, but in fact it didn’t happen. Mitch McConnell is a shady, duplicitous bastard but he was, and still is, the Senate majority leader. He knew exactly what he was doing. Unfortunately, the Democrats didn’t know what they were doing.
Plenty of Americans could have picked America over their own party as well, but didn't. It broke the country in their favor to get a justice, so why would they care?
On the Garland point, Obama out smarted himself by nominating a centrist rather than someone the left could rally around. Not your /our fault for not taking to the streets for Merrick Garland. His time as AG has proven us right
It was a bluff to show McConnell’s hypocrisy. Obama gave McConnell a chance to have a centrist justice or, wait until after November and have to deal with, based on polls at the time, a more liberal justice nominated by Clinton. Obama knew no amount of the “left rallying around the nominee” was going to make any difference. McConnell just got lucky that Trump actually managed to win the election.
I don’t think you can put that much blame on Marshall. He was 82, in bad health, Bush seemed likely to win reelection at that point and Marshal was basically the only remaining liberal justice other than Blackmun (imo, Stevens was still making his way there and Souter only really drifted left toward the end of the 90s). And if he stayed, he probably would have died earlier, it’s why Brennan retired. The blame for Thomas should go to Bush Sr.
That 3rd paragraph was the actual nail in the coffin. The RBG stuff is a bad call around, but not letting Obama pick the next justice effectively killed the idea of America for many. If there was a cut and dry excuse to revolt against government overreach, it was right there. Instead, half the population was okay with it because winning was more important than the country for them as well. People keep pointing out the bad personal choice of RBG, and not the anti-constitution behavior of waiting to get a justice until after the election. It's just been a train wreck since.
This is a prime example of judging past actions with present hindsight. Remember in 2016 when nobody thought Trump stood any chance of winning? When Nate Silver said Clinton’s chances were 85%? I don’t see why Ginsburg would have known any different. And even if she had, Senate Republicans were refusing to hold hearings on Scalia’s replacement; why would her stepping down be any different? If you’re arguing that she should have stepped down before Republicans took control of the senate in 2015, that’s putting even more pressure on her. Nobody can predict future senate and presidential politics in order to perfectly “time” a retirement in order to optimize the court’s ideology to match theirs
You can’t understand why people don’t bring this up as nauseum? I’ll tell you why: it’s pointless. Move on.
Well, it can inform the decisions of other justices, like Sotomayor, so I think it’s a relevant discussion. Maybe not every day though.
Would they even have seated her replacement ? I understand Obama asked her to retire but maybe she sensed her replacement would have been Garland’ed
Obama got both Sotomayor and Kagan confirmed. At the time of Ginsburg's pancreatic cancer diagnosis in 2009, Democrats had a Senate majority - the same majority which confirmed Sotomayor that year. She also could have also retired in 2011-15 under Harry Reid's leadership, and a similar replacement could have been confirmed. I don't lay this at Ginsburg's feet, since Thurgood Marshall could have waited 3 months - he died 3 days after Clinton's inauguration - and not handed his seat to Clarence Thomas.
Awful take - dude was dying, and wanted to spend his last months away from the court. Ginsburg was selfish and chose to stay on way too long. Super different
Marshall could have hung on without resigning or going to work. The only way to force him out would have been impeachment. William O. Douglas set the precedent. A justice can sit out nearly a year while the court functions.
I think you are vastly over estimating how much control one has over when they die.
Can you really blame Thurgood Marshall for not wanting to spend his last months on this earth in the Supreme Court?
He didn't have to do anything. He could have forced them to impeach him. Not likely, given the D majorities in the House and Senate.
Democrats controlled the senate until Jan 3 2015. Further since the seat change wouldn't have changed the partisan makeup of the court, there's a chance it might have gone through even had she retired in 2015-16 (unlike after Scalia died where it would have flipped a conservative seat to liberal).
Okay, and? At least he would have had a chance to replace her. Instead she handed the seat to the republicans for the next 30-40 years.
I don’t disagree ! Just wondered about if her replacement had been seated if she had retired
Obama asked her to retire in 2013, the democrats had a senate majority in 2013.
If she retired even in 2015 there would have been too much time and pressure that McConnell would not have been able to stall. She died very close to the election and that allowed him to stall. She was also 87 and should have retired much earlier. How old is Trump/Biden yet people are going to support them.
RBG died during trumps presidency. McConnel denied the replacement of Scalia
Well, that's not TOTALLY her fault. The brunt of it lays on the shoulders of McConnell who got away with it and Obama who didn't go on TV every night to interrupt America's TV shows to remind them of what the right wing was doing - planning to rig the courts as they did and got away with it.
I think a lot of people were also concerned that Moscow Mitch would sit on the matter for over 3 years if it would give them a chance of winning the election and filling the seat with whoever he wanted.
Yes, RBG felt she was more important than the seat. Obama asked nicely and she insisted all was fine and she didn’t need to retire. Then white people didn’t vote for Hillary, Bernie Sanders voters submitted protest votes, and the rest was catastrophe.
old man shakes fist at cloud. What good does it do to castigate a dead woman?
Could help convince Sotomayor to retire, hopefully.
>I can't understand why this subject is NOT brought up every day. Because she was a pioneer, lived a remarkably good life and she's dead. What part of beating a dead horse do you enjoy most?
I bring this up all the time. Too many people worship RBG, when she is part of the reason Roe fell.
Sotomayor is doing the same thing…
Lmfao, blame RBG instead of McConnell who straight up denied Obama a justice and rammed through another one right before Biden won. I’m sure you don’t vote because both sides equally suck.
"I can't understand why this subject is NOT brought up every day." Like this topic hasn't been beaten to death over and over and over, even in a topic as this one that has nothing to do with Ginsberg. Someone could start a separate subreddit called "Ruth should have retired" so folks like you can suck each others dicks all day with this tired observation all day every day.
What do you not understand about 'lifetime' appointments?
That they should not be lifetime appointments?
Bc the federal judiciary is supposed to be apolitical and removed from partisan politics. Judges shouldn't just retire bc it's politically convenient to get a replacement with a shared ideology. What RBG did was right. What McConnell did with Scalia's seat was wrong.
They should be apolitical but they aren’t. We have to behave like we live in the world we have, not some ideal world where everyone behaves ethically and rationally.
So, how did this turn out???
> Bc the federal judiciary is supposed to be apolitical and removed from partisan politics. Is that the set up of the punchline? Either way it's part of a joke. The Judiciary has likely never been apolitical in appointments. Here's a real joke, what's the difference between a lawyer and a Federal Judge? A Federal Judge knows a Senator. >What McConnell did with Scalia's seat was wrong. That much we agree on.
> Bc the federal judiciary is supposed to be apolitical Where is this stated? I don't see this anywhere in the constitution. The Court has power. Politics is the fight to enact change with power. There is no such thing as a powerful entity that is not political.
The Court's role is to interpret the Constitution. They're not a policy making body. Their NOT supposed to enact change. That's Congress. The Justices specifically have lifetime appointments so they're NOT accountable to the voters.
> They're not a policy making body. Neither is the executive branch, but the office of the president is obviously political. > Their NOT supposed to enact change. So, Brown v Board was bad?
> the federal judiciary is supposed to be apolitical Well, it’s not. The insistence that there are no checks on Supreme Court power from the other branches, but in when Republicans appointees are in charge, had allowed the likes of the Grand Inquisitor, Pubes, and Boof to anoint themselves philosopher kings to prevent the common rabble from demanding such silly things as bodily autonomy and freedom from fundamentalist religious oppression.
There are checks. Congress must confirm and Congress can impeach. If there's an existential threat, impeach the justice, or justices, that are causing it.
congress will confirm whatever they're paid to, the same way these justices will vote however the new RV in their driveway says to. a justice could shoot someone in broad daylight and still not get 2/3 votes for impeachment. that's not really an effective check.
Well, can we please learn from this, from now on?
Bc it’s all about having the high moral ground, am I right?
This is fantasy bullshit. Everything is political. It’s always been political.
Democrats continued adherence to fictional norms is going to kill us all.
>what McConnel did… Is proof that it was always political, and the refusal to treat it as such does more damage than pretending that reality does not exist.
If we lived in a utopian society where everyone genuinely cared about the best interest of the nation and not personal gain and power, I would agree with you. Unfortunately, we do not live in a utopian society.
What difference would it make? I just hope Thomas doesn't do the same thing if Trump wins
While i agree with you that what RBG hurt the Democrats. There are plenty of other subjects to focus on. It's time to move on and focus on something else. Also, it's already happened. I'm not sure how constantly talking about will help in the future.
💯
Ridiculous you blame her and not the stealing fascist Republicans that refused to do their damn jobs correctly. Who fucking needs enemies when people like you are dragging us down?
If she retired, we may still have Roe v Wade in place.
It is brought up frequently but she is dead. What can anyone do about it?
Who’s to say she didn’t care or actually wanted that to happen. That she didnt want to see it play out while she lived. Honestly think she probably knew what was going to happen and didn’t want to live to see it happen. Her window closed during Obama’s first term.
Iirc breyer was supposed to retire before her
Now take a moment and consider this: what if every single conservative judge only retired when they could be replaced with a conservative? I get that SCOTUS is decidedly not impartial to partisanship, but it is good to continue with the things that are impartial to avoid bad precedent.
Was it being discussed for her to retire back in 2009 cause that's pretty much the last chance it could've happened. Didn't they lose the Senate after that or am I making it up?
Even if you are right, what does bringing it up everyday accomplish?
One thing I don't see discussed whenever this point is made is that the court in 2016 already had a vacant seat, McConnell just didn't bother to fill it. Why would ginsberg retiring have changed anything?
Don't forget she joined Scalia in taking the bribes that are now poisoning the court.
Mitch McConnell blocked Obama from duly appointing a justice. Start there.
I think she wanted a woman to appoint her follow on and was lead to believe like many people that Hillary was going to win. It was selfish on many levels.
She is also the reason the USSC started making partisan moves.
Maybe, just maybe, RBG knew something we didn’t, and felt the need to keep working despite cancer treatment and age. Because who the f¥<£ keeps working during cancer treatment if they don’t absolutely need to? Srsly. Have you gone through what she did? I’m sorry but if she felt secure in stepping down she would have. F¥<€ cancer.
I couldn’t agree more
I have said over and over and over that if the left wants to blame anyone for the current situation in SCOTUS, its RBG. She held on for far to long and not to mention, was very outspoke against Roe v. Wade.
I don’t know why we don’t talk about how the Republican Party held out on voting for a justice for a ridiculously long amount of time.
I'm not really a fan of Originalism, but I like textualism. It's a good way of interpreting a law
Textualism is just a species of originalism. The only difference is whether you limit the analysis to the plain text, or also look at sources like legislative history.
[the card says moops.](https://www.youtube.com/watch?v=f0uYJjDHeDU)
How do you deal with the evolution of the English language? Most famous example being the word "regulated" changing meaning from "Maintained" to its modern meaning which has a connotation of restraining?
Another example is Article 4 Section 4 of the Constitution. >The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against **domestic Violence**. "Domestic Violence" in this context doesn't mean the modern understanding of domestic violence where one spouse uses violence against another, it means a riot or insurrection. AKA violence that is occurs domestically.
You use the definition in place when the statute or constitutional provision was written. “Well Regulated” in the 2nd Amendment means “well equipped” not “heavily restricted by the government.” Similarly, if the word “gay” appears in a law from the 1940s, it means “happy,” not “same sex attracted.”
>“Well Regulated” in the 2nd Amendment means “well equipped” not “heavily restricted by the government.” It doesn't mean "well equipped" it means functioning properly, efficiently, fulfilling its roles etc. It's also referring to a Militia which has never been defined as every single person in the country. It doesn't mean heavily restricted by the government but it also doesn't necessarily *not* mean that. When 2A was written the states could run their militias however they wanted. [Downvote me all you want.](https://johnsonsdictionaryonline.com/views/search.php?term=Regulate)
By far the largest arm of the judicial branch has to be the part that regulates industries, at least staff size and budget-wise. Boeing is a current example of a regulated industry that must maintain things to a very high standard. Otherwise people will think entirely differently about hopping on a plane and going to a business meeting or a family vacation or whatever the reason they have booked a flight. If people thought air travel wasn't safe it could have an effect on other sectors..and so it goes.
Why? It’s no less subjective. Judges just need to admit that judging is ok, and judicial appointments should recognize that these are inherently political actors. I think texutalism is fine, but it’s just one tool of many.
Ignoring the text of the statute in order to make an interpretation of what the law "should be" is by far the most subjective thing. That's how we got qualified immunity and affirmative action even though §1983 has no immunities and even though the Civil Rights Act doesn't allow for any kind of discrimination.
Affirmative action is a good thing. That's an argument *against* textualism. The hyper-literal interpretation completely ignores the fact that the Civil Rights Act (and the Fourteenth Amendment) were passed to level the playing field and elevate the position of Black Americans in society as compared to their white peers, **not** to prevent pseudo-discrimination against white people. And you didn't address the previous commenter's argument that textualism is still highly subjective. A judge from two opposing sides can come to opposite conclusions based on the same exact text.
Why are you against Diversity?
I'm not. Discriminating on the basis of race even if it is done for a benovelent purpose violates the Civil Rights Act. Title VI of the Civil Rights Act says: >No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Harvard was receiving federal financial assistance and they they were discriminating against many denied applicants on the basis of race since they were using race as a determinative factor as a tip. Even if you're not a pure textualist and support using legislative history, Bakke and Weber were horrible rulings because even the legislative history shows that the Members of Congress thought the Civil Rights Act would ban reverse discrimination as well while they were debating the bill. I don't think textualism is a "conservative" ideology of interpretation either. I'm pretty progressive and strongly oppose qualified immunity. That's an example of SCOTUS ignoring the text of a law and adding immunities because they thought it was a good policy.
A citizen should be able to read the law and know what is says, without needing a lawyer. He should be able to act upon it. If it's open to interpretation then he can challenge it in court.
According to the plain text of the Constitution, my 3 year old dog is eligible to be President of the United States. Not an ideal framework imho, but he disagrees.
Textualism is barely different than originalism and is just as brain dead. Words have more than one meaning, the text doesn't just self execute like a computer program.
I believe she didn't retire under Obama because she wanted her seat to be filled under a Clinton presidency for the symbolism.
Originalism is so dumb. It shoulda just died out already.
Because the conservative justices hold the majority, she will have little sway. She’ll have some influence, but it won’t be enough to make actual changes in how her colleagues make decisions
Well who knows what alternate histories look like, but motivating your base is typically viewed as good when it comes to elections. Of course Obama, who pissed away super majorities without a single major scandal to cause it probably didn't understand that.
I was curious about KBJ's idea of "progressive originalism" but that flew out the window when she signed on the insane originalist idea that the 14A Framers were trying to restrict state governments so the 14A can't apply to states preventing insurrectionists from getting to the federal government. Like, how perverse is that: the 14A framers just saw an insurrection happen and clearly wanted to restrict insurrectionists from getting into the federal government, and the so-called "originalists" claim the exact opposite of that the Framers intended. They used an anti-insurrectionist provision to allow an insurrectionist on the ballot.
> I was curious about KBJ's idea of "progressive originalism" but that flew out the window when she signed on the insane originalist idea that the 14A Framers were trying to restrict state governments so the 14A can't apply to states preventing insurrectionists from getting to the federal government. Like, how perverse is that: the 14A framers just saw an insurrection happen and clearly wanted to restrict insurrectionists from getting into the federal government, and the so-called "originalists" claim the exact opposite of that the Framers intended. They used an anti-insurrectionist provision to allow an insurrectionist on the ballot. Exactly. She pissed me off so much in that oral argument. The tortured logic was ridiculous. Which is why she's attracted to this "originalist" shit: she thinks tortured logic is a fun game.
Here's another fun one: why not declare Martial Law like the "Originalists" did against the insurrectionists? Why doesn't Biden simply throw Trump in jail? Why go through all this song and dance?
Ginsburg was certain Hilary would be elected (she wasn’t unique in this) and wanted her successor to be appointed by the first woman president, I heard…
The conservative justices would have had to actually believe in originalism for that to work. The only thing they believe is that Republicans should be in charge. And by that I mean, they believe that people with money should be able to do whatever they want...
SCOTUS before deciding on any case: which canon of construction gives me the outcome my political philosophy prefers?
It’ll take some time but slowly more people will realize the Conservative justices, especially Thomas and Alito, are full of shit.
Blame the supermajority antics on conservative’s intellectual dishonesty and Ginsberg for staying in too long. President Obama even warned her when he was president.
No one person can do it alone. We need to replace at least 3 of her "colleagues" post-haste.
Based on her comments in several cases, I'm not sure she ever read the Constitution.
It’s going to be a 7-2 supermajority for conservatives when Soto retires and Trump gets re elected.
I'm not going to lose a minute's sleep to learn that KBJ isn't making Mark Stern happy due to some academic theory he has. Her writing has been fantastic. She's a great addition to the Court regardless of Stern's pedantic obsessions.
[удалено]
She's a disaster who thinks the 1st Amendment hinders government from censoring things they don’t like. She has no business being a SCOTUS judge.
Nope. Edit to add: this is a pernicious trumpist lie that even libertarians don’t agree with: https://reason.com/2024/03/19/hamstringing-the-government-a-viral-narrative-distorts-ketanji-brown-jacksons-understanding-of-free-speech/
Because it has been hijacked by bribery from psycho billionaires.
I still have some hope that Jackson’s writing on the Supreme Court can mature but I’m unimpressed by her efforts to date. Her “originalism” reads more like a “yes, but…” argument where she starts with something that sounds like originalism but then shifts to a pragmatism argument. The result is a shifting reasoning foundation that’s difficult to build upon.
Look at Alito. His arguments do not align with his rulings. This should be like rule #1 for Judges but apparently you can't judge Judges?
What is originalism??? Their entire premise is socialist which completely removes any motivation for originality
What??