Can you give a brief synopsis about how the federalist society is a conspiracy against democracy? I thought it was about originalism which seems to me to be pro-democracy by maintaining proper separation of powers etc.
It's a hour of ranting against democracy. He didn't even hide the fact that he doesn't care that gay marriage or other issues were approved by voters; he would judicially end gay marriage in the name of "religious freedom." But this freedom only extends to particular forms of Christianity, as Alito is quite comfortable with restricting the religious practices of Muslims and Wiccans.
The Christian Body Temple finds it to be religious persecution for their members (many doctors) to be forced to treat fat people. Will Alito also uphold that?
The Federalist Society finds, indoctrinates, and advances conservative lawyers and judges. That's not inherently anti-democratic though their level of success and influence on judges selection processes may be considered so. The problem is they also tend to be highly partisan (pro-Republican) which undermines the separation of powers.
Often their picks ignore their "originalist" approach when it would be counter to their desired outcome.
I'm no expert, this is from my general understanding and skimming Wikipedia.
The speech is an attack on science, expertise, and common sense. It’s a MAGA hat with a thin veneer of respectability.
It’s not clear to me to what extent such judges believe in this ideology, or whether they’re simply craven and exercising a will to power, but the Federalist Society has spent the past several decades working to place lawyers with fringe jurisprudence into the judiciary, and the Koch brothers wrote the checks.
I saw parts of the speech and it was crazy. This is why appointing judges for life makes zero sense to me. If I become a supreme court judge at 45 and live to 75, I have a full three decades to change the direction of the country forever. This is very very scary.
There should be a term limit for everyone in government like presidents do - mayors, congressmen, senators, judges...
The reason Supreme Court justices are appointed for life is so they are independent. That cuts both ways, protecting both people I agree with, and people I disagree with from having their verdicts influenced by outside forces. Sometimes this is inconvenient for me, but on the whole I prefer it over the alternative. The key is to hold the people who nominate and confirm these justices to account, since they are elected.
The issue with term limits is that it gives a potential perception of bias related to whatever they do when they leave.
An example of this is in agencies like the FTC, where people leave the regulator and end up in well paid jobs in the companies they are supposed to be regulating. Even if there was no bias in their decision making people point to it and it undermines confidence in the system.
Give them a term limit, and then send them back to their life appointment on the district courts (with a higher salary if you want to sweeten the deal a little).
> (with a higher salary if you want to sweeten the deal a little).
After being on the SC, they'd be set with high-paying speaking and book deals for life, along with deals as paid commentators on all sorts of issues and platforms.
They are meant to be appointing an independent judiciary applying precedent and law as written, not delegates whose votes are pledged to parties. Activists belong in Congress where the voters have some say.
I agree with Alito on his "the state treated houses of worship less favorably than it did casinos" point, and I don't think it's anti-science to say that.
To quote NYT: "Casinos were limited to 50 percent of their fire-code capacities, while houses of worship were subject to a flat 50-person limit."
It seems reasonable to me that both should be limited to a 50-person limit, or perhaps a people-per-area limit (although I do understand that Churches are higher risk because singing spreads the virus much more than silently sitting at a slot machine).
I believe for the last 30 years or so (after the late Antonin Scalia) 'conservative' judge is almost synonymous with originalist. I think you may be falling victim to correlation is not causation? IE there are no liberal originalists by definition (above). If I'm wrong, could you give me an example of a liberal originalist? I would be very happy to be wrong about this.
The correlation here is that conservative presidents pick justices who object to rulings like Roe v Wade. The mistaken 'cause' is that it is Conservatism that leads to this objection when in fact it could also be that originalists object to legislation from the bench.
Originalism is fine in theory when coupled with judicial restraint. However, in practice, it has become justification for big-C Conservative justices to actively impose their views, overriding the democratic legislative process.
We're not going to settle this in the comment section of HN, but I happen to agree with this opinion:
As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers.
Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights.
Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?
I don't practice law but it seems obvious to me how one would make rulings about marriage laws before and during Obergefell v. Hodges. One of the central tenants of originalism is using words/language according to their original meanings (within reason). Since when have we understood marriage to include same sex? Long after these laws for marriage were put on the books in many cases.
So I turn it on you - I'm not an expert so help me understand - how is Obergefell v. Hodges not legislation from the bench when it changes the meaning of these laws unilaterally?
I never made any argument about whether or not Obergefell v. Hodges is activism. You should read the 5-4 decision yourself and decide whether or not you think it is.
My personal opinion is that I don't care whether others think it's (liberal) activism.
My beef is that Alito is also engaging in (conservative) activism but claiming he is not by hiding behind originalism. I won't belabor this point further because I've already cited a source that makes the argument better than I can.
Disclosure: I want our government to use every tool at its disposal to make the world a better place. Of course the constitution should be interpreted in line with modern values in order to extend rights and protections to people. The declaration:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The preamble:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Those are our stated shared values. Those align with my values. Not allowing gay people to marry is contrary to those values.
That five judges found a constitutional justification to extend the right of marriage to all, I'm glad for. If people want to call that "activism" so be it. Now, Alito still wants to take that right away. Indeed, he wants to be able to express that view and not be called a bigot for it. I find it deplorable to try to hide that view behind a legal theory called originalism.
Any originalist argument against "Obergefell v. Hodges" could equally be applied to "Loving v. Virginia."
I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. As logic students know, once you have contradictions in your principles, you can prove anything you want.
The role of a judge is to sort through these contradictions to decide which principles are more important than others, even though they are all mentioned in the constitution.
So I don't see how there is an objective concept of "originalist": you have to pick some principles over others. Which ones you pick are a lot more guided by your own ideology than by the words on paper.
It has meaning, but not what we see today. Interpreting the US Constitution as intended by its authors would probably have consequences like this:
- A much stronger view of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. That means no searches without a warrant, period. No general surveillance. No "drug exception". No "exigent circumstances" exception. Wiretapping, on a court order only. Which is where the US mostly was until the 1960s or so. This means going back to "We have you surrounded. Come out with your hands up".
- Much more use of jury trials. Anything that involves even a day in jail, or a fine over $20 (might allow for inflation adjustment) means a jury trial. No treating six months in jail as a "petty offense". Longer sentences for demanding a jury trial would be considered a major Fifth Amendment violation. And no "civil forfeitures".
- Religion is just another business. No tax break, no restrictions on lobbying, no exemptions from other neutral laws.
- Corporations are not "persons". The history of how corporations got constitutional rights is strange and interesting. See Southern Pacific Railroad vs. County of Santa Clara (1886). Until then, corporations did not have constitutional rights; only their employees did.
The even more blunt implication of good-faith originalism would be interpreting the 2nd amendment to allow the non-governmental ownership of nuclear weapons.
The original intent of the 2nd amendment was to allow a 'well regulated militia' to be adequately equipped to fight off an invading army, which in modern terms would mean that the 'well regulated militia' would need to be able to own tanks, fighter aircraft, warships, missiles, and nuclear warheads.
Contemporary originalists, however, both completely discard the mention of a 'well regulated militia' in the 2nd amendment and have re-interpreted the right to encompass only small arms.
Legal originalism is not an ideology predicated on good faith. It is a figleaf to misuse the opinions of the authors of the US constitution to defend the beliefs of contemporary conservatives.
> I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles.
Not just the Constitution, either. Other contemporary writings - the Federalist Papers, etc. - are often quote-mined to determine "intent". As you identify, these offer a lot of opportunities to pick and choose stuff in favor of whatever ideological decision you'd like to make.
Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" principle when decision-making but cherry-pick the "original" texts they use or ignore them when they would lead to ruling in a way conservatives don't like.
How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.
How many of Scalia’s opinions have you actually read?
Humans are not perfect, and I think all judges can delude themselves with motivated reasoning at times, and all judges have some bad opinions, but having read many SCOTUS opinions, Scalia always struck me as one of the more logical and thoughtful members of the court.
>How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection...?
The relation between the operative clause and the prefatory clause is that, historically, kings had effectively destroyed the militia by forbidding the keeping or bearing of arms. Justice Scalia's opinion in Heller cites a great deal of evidence that the original public meaning of the phrase "the right to keep and bear arms" included keeping and bearing arms for individual self-defense.
How can one be an originalist and ignore half of the sentence, "A well regulated Militia, being necessary to the security of a free State,"? A law requiring a trigger lock does not infringe on the forming of militia or maintaining the security of a free State.
Conservative judges, including Scalia, generally don't claim that all arms regulation is unconstitutional, they don't claim everyone has a right to own RPGs. I don't like where they draw the lines and don't think they have good reasoning for where they draw them.
Because grammatically (then or now), that part of the sentence doesn't limit the independent clause--"the right of the people to keep and bear Arms, shall not be infringed."
If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech?
Practically, I don't see how it makes any difference. Handguns are used by every single armed forces in the world. Any militia would need them anyway. If I can't own a handgun, how could I serve in a militia?
+1 to this, at the time of the constitution's signing the states were trending towards fragmentation into separate countries. New York and Massachusetts were on the brink of a hot war over westward territorial expansion.
The founders were obviously concerned with the need for a military to "maintain a free state", but I'd doubt that a centralized military would have been palatable at the time.
There was a mistrust of the Federal government at the time, and it was believed that state militias could act as a check against a Federal standing army which goes rogue.
We have bigger issues than gun control at a federal level.
The Army has nothing to with personal self-defense or protection of civil rights. Standing armies were the part of the motivation for the 2nd Amd.
There is plenty of 2nd Amd. scholarship that goes over all of this. Not saying you need to agree with the scholarship, but a lot of people have thought about his stuff and researched it deeply.
Gotchas statements re: "...well regulated...", cars are registered why not guns, restrict people to owning muskets, etc., are unhelpful.
Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...
> Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment?
Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided.
> what constitutes a true liberal originalist?
You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising.
I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites.
But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
It's a hour of ranting against democracy. He didn't even hide the fact that he doesn't care that gay marriage or other issues were approved by voters; he would judicially end gay marriage in the name of "religious freedom." But this freedom only extends to particular forms of Christianity, as Alito is quite comfortable with restricting the religious practices of Muslims and Wiccans.