[notyourday]

Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side".

It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions.

Want to change the law? Get congress and senate to pass a new law and have a president sign it.

[Bartweiss]

This seems like a particularly weird place to lay charges of activism.

The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presumed to have had in mind.

The Court's current originalists are textualists to a man, and have consistently rejected arguments of the form "this law's authors didn't anticipate modern conditions". But today, they decided to restrict a right provided by the text of the law, and did so by appealing to circumstance and intent. (edited for clarity)

Legislation was written from the bench today, and it wasn't Ginsburg doing it.

[gowld]

You're reversing. Originalists says "this law's authors didn't anticipate modern conditions, so the law must not change under modern conditions"

Non-originalists say "this law's authors didn't anticipate modern conditions, so we must project their intent onto modern conditions"

[Bartweiss]

I'm not reversing - I agree with you.

In this case, I think an original intent reading and a living Constitution reading lead to the same place. But I only mention that because the decision references intent; original intent scholarship is rare in general and basically absent on the court.

Original meaning is what's currently represented on the court, and is as you say: "the law must not change under modern conditions". That's what I'm suggesting was abandoned by its usual practitioners today.

[emtel]

I'm pretty sure Scalia didn't join the majority in this decision.

[bmelton]

I'm not sure what you're intending by this comment, but Scalia's been dead now for some time, and his replacement (who is ideologically close to Scalia's) wrote the decision.

[Bartweiss]

Yes, thanks - I was initially quite unclear, but I meant "the Scalia faction of the court", particularly Thomas and Gorsuch.

[notyourday]

Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y.

If you want X', then pass the law that changes X to X'.

Edit: I'm editing this as NH blocked me from replying:

> Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.

I apologize if it came across that I was trying to lecture anyone on how the law works.

> Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?

It is the "Freedom of the press" argument. Does it mean that only "press" as it existed at the time is covered? The answer, in my opinion, based on the current body of law is "No" because we do not have a law on a books that restricted the freedom of the press to something other than a totalitty of abstract idea of "press" and abstract idea of "freedom". If we did, and if that law was found to be constitutional, then the newer law would have trumped the old one.

This applies to the existing argument. I simply believe that Gorsuch and Thomas arguments have been misinterpreted. They are not some evil masterminds that are able to speak out of two corners of their mouth. They are originalists and they are applying a very simple "is there a law that has been passed which is more specific and was not found to be unconstitutional that affects the current issue? Yes => defer to new law. No=> defer to the original law"

[Bartweiss]

Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.

The classic example of a textualist or original meaning position is a broad view of the Second Amendment. Ignoring the 'militia' issue, Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?

My point is that the decision today used original intent reasoning - law X established a right without without imagining Y, so Y should not be supported by X. But the textualist position is to apply the existing text of X to Y whether or not Y was even envisioned.

Gorsuch and Thomas are long-standing textualists, and I'm arguing that they took a basically non-textualist position today for political reasons.

[s73v3r_]

"Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y."

But that's exactly what the majority decision here is saying! "Since class actions didn't exist back when the NLRA was enacted, we need to accommodate the NLRA for class actions" The court literally made up what they felt should happen!

[notyourday]

FAA predates NLRA and NLRA did not define that it gets to override FAA.

[camgunz]

If you read her dissent through to the end, she rightly points out that if the FAA were to hold over the NLRA then it would also hold over the Civil Rights Act, which is clearly not what Congress intended. See also her (well-cited) argument about specific vs. general legislation, as well the fact that the NLRA was written and enacted after the FAA. In fact, if you're on the side of "SCOTUS... starting to uplold the laws as they are on the books", then you're on Ginsburg's side here. Gorsuch & co. are really reaching.

The ruling today essentially says that if the FAA is ever in conflict with any other piece of legislation that it holds supreme. This is literally unprecedented.

[kevin_b_er]

Arbitration trumps ALL your rights. When arbitration is mentioned, it superceeds all your rights.

The conservatives love it because it means their greed rules over all other laws. It is federal which means it superceeds states. As long as they are in enough power, you are ruled by their greed.

[notyourday]

No, the law did not address the new development. To address these developments, a new law should be passed.

[howard941]

One new development here is that the FAA apparently trumps everything not expressly exempt from it. Used to be that later laws preempt conflicting prior laws. The FAA should be called the Class Action Preemption Act because of what it effectively turned into.

[kevin_b_er]

It is ROLRA, the Rule Of Law Preemption Act. Once the FAA is invoked, all other laws fall by the wayside. You have no rights, as they are waived. The arbiter is not required to follow any other laws.[1] Manifest disregard for the law is insufficient to halt or reverse arbitration. You are no longer under the rule of law, but under corporate rule.

[1] https://en.wikipedia.org/wiki/Hall_Street_Associates,_L.L.C.....

[notyourday]

Yes, that's how the laws work. Future laws narrow/refine previous ones unless they are found to be unconstitutional on specific grounds or spell out exceptions.

We have been running with courts writing laws for years -- banana republics had less judicial interference into purview of legislative branch/executive branch. Now the rubber band is snapping the other way and those who have been happy at letting courts to write laws because it was their men/women on courts are now freaking out. Just wait until Kennedy retires in August and Trump gets another originalist there -- outsource unpopular legislation to courts group is in for a world of hurt for decades.

Edit: Not liking that water is wet does not change that the water is wet. Downvotes are not going to change this SCOTUS decision or other coming SCOTUS decision. Neither would they change a retirement of a swing vote and neither would they change that it will happen when Trump is in office and republicans control the Senate.

[s73v3r_]

Sure. But what happened today is that the SCOTUS legislated from the bench.

[srj]

Except for Gorsuch, who is new, the same justices ruled to throw out the Voting Rights Act coverage formula because they felt the criteria set 40 years ago was too old. There's no blind interpretation of the law, justices make a decision anchored at least in part by their poltics and work backwards to justify it.

[notyourday]

See above.