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Topic: What's Your Favorite U.S. Supreme Court decision? (Read 202 times)

  • OakdaleFTL
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What's Your Favorite U.S. Supreme Court decision?
Frenzie actually prompted this thread and provided its first post: In another thread, he pointed me to Bostock v. Clayton County. I remembered the case vaguely...and of course I'd had something to say before I'd even finished the Syllabus!
Quote from: me
I'd make three points...
Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.
(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)

Codifying motive as a separable offence smacks of "thought-crime"!

1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!

(To see how pernicious the rule of "disparate impact"  can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!)

2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.

3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.
Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!

So: Bostock was wrongly decided.
I may have to eat my words, seasoned with your comments and arguments or strewn with the gristle of Gorsuch's textualist pretensions! (Nothing like an ill-aimed insult to a sitting Justice to start this thing off, eh? :) )
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"Humor is emotional chaos remembered in tranquility." - James Thurber
No one listens to me as much as I do and even I have my limits...
"Science is the belief in the ignorance of experts!" - Richard Feynman

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #1
Well, it's a bit early here so I'll keep it short, especially since you say you wrote this on the basis of only the syllabus, but the conflation of sex and gender as you call it was extremely well reasoned. I find such an originalist opposition completely untenable; in fact I find the whole approach greatly suspicious because it seems to be selectively applied when someone doesn't like the only rational conclusion that can be reached on the basis of the text.

Gorsuch's argument hinges on what the lawmakers meant when they used the word "sex" without any involvement of thoughtcrimes or mores, and of course on the basis of what people are actually discriminating by. If you're not letting a woman be a mechanic solely because she's a woman that is the very definition of sexual discrimination. It's completely irrelevant why you're discriminating against men; all that matters is that you are discriminating. Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought of at the time isn't covered by a piece of legislation, while you should simply interpret what the law says.

Edit: typo
  • Last Edit: 2020-09-12, 15:16:33 by Frenzie

  • rjhowie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #2
Maybe if America was ever to become more democratic and more get a decent life noting that corner might not mean much!
"Quit you like men:be strong"

  • OakdaleFTL
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #3
Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought at the time of isn't covered by a piece of legislation, while you should simply interpret what the law says.
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
While such an example might strike you as silly, it's precisely such questions that, in Oral Argument, draw the pith of a complex and complicated matter of contention out for all to see!

What you call an irrelevancy is a foundational element in American law!
Some few maxims are relevant:
Don't throw out the baby with the bathwater! (If part of the law is unconstitutional, sever the part -leaving the rest intact and in force- and consider striking down the part...)
Don't cut off your nose to spite your face! (If some questionable part seems not ripe for adjudication, remand -with a mandamus if reconsideration isn't possible...)
You can't have your cake, and eat it too! (If a part is offensive but can't be severed -say, because it's integral to the whole- strike the entirety...)
And so on. My personal favorite, during these modern times, is:
A stitch in time saves nine! (Make an indefensible change, support it through every challenge brought against against it, and pray it survives long enough to be defensible as precedent! That way, the court has decided, without taking responsibility for its decision...)
One that you'd -I'm sure- think unnecessary:
A dog returns to its vomit! (When a law is so odious that it can't be tolerated, strike it and all its progeny... E.g., the Fugitive Slave Act and the Dred Scott decisions.)

Title VII of the Civil Rights Act is merely a law passed by Congress; despite the many opinions about it in the cannons of various courts. Amending such is easy...and only the higher courts' annals, and their keepers, are affected! (And perhaps the hubris of some jurists wounded and egos deflated -a salubrity much needed! Unless there's considerable opposition to the proposed changes (corrections or additions and/or deletions).  Leaving such to re-interpretation by the higher courts (Circuit, Appellate, and the Supreme) is either recidivist or onerous...or both.

Court systems in most states follow the federal model Congress decreed for the Federal Courts; the constitution merely gave the power to design and create such to the Congress. But lower courts, county courts mostly follow the older patterns of the common law, where the power to create judge-made law (like in England) is entrenched and accepted.
Again, conflating our higher courts with their common law cousins is anathema to our peculiar but valued traditions!

Of course, you disagree... :)
(I've been kinda busy -- but I'll return to  Bostock, et al. eventually.)
  • Last Edit: 2020-09-12, 10:20:11 by OakdaleFTL
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"Humor is emotional chaos remembered in tranquility." - James Thurber
No one listens to me as much as I do and even I have my limits...
"Science is the belief in the ignorance of experts!" - Richard Feynman

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #4
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
In this specific case, the framers of the Civil Rights Act. But those who frame any law, no matter how foundational or minor. Lawmakers are well aware of the need to restrict things further if that's their actual intent.

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #5
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
Why shouldn't it, if soul stealing:

a. Is real.
b. Meets the legal definition of kidnapping.

I think your example rather proves my point. Just because the framers didn't consider soul stealing when they wrote the law, doesn't mean soul stealing is a-okay! On the contrary, a well-written law on kidnapping should implicitly cover soul stealing, or explicitly restrict the definition of kidnapping to physical bodies only. (Perhaps you made up this specific example because chances are a "person" is always implicitly assumed by legal precedence to be a physical body, which is something that would have to be taken into account. But laws aren't written in ignorance of how courts interpret laws; quite the opposite.)

  • OakdaleFTL
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #6
laws aren't written in ignorance of how courts interpret laws; quite the opposite.
Not entirely, no. But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Another example:
Quote
A therapist asks his patient how his visit to his mother went.
The patient says, "It did not go well at all. I made a terrible Freudian slip..."
"Really!" the therapist says. "What did you say?"
"What I meant to say was 'Please pass the salt.' But what I said was 'You bitch! You ruined my life!'"
Would your interpretation of Freudian slip let this slide? :)

How much more important must it be, then, to limit the range of interpretation of the meaning of words used in laws?
...putting lipstick on a pig ([your turn to play! Fill in the corresponding legal tactic here...])
进行 ...
"Humor is emotional chaos remembered in tranquility." - James Thurber
No one listens to me as much as I do and even I have my limits...
"Science is the belief in the ignorance of experts!" - Richard Feynman

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #7
But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Kidnapping is abducting someone against their will. If you abduct someone's soul against their will, why would it be so unthinkable that it might fall under the legal definition of kidnapping? I don't think you're taking your own thought experiment seriously.

If we look at Dutch punishment law, we can see that it says:
Quote from: http://www.wetboek-online.nl/wet/Wetboek van Strafrecht/282.html
Hij die opzettelijk iemand wederrechtelijk van de vrijheid berooft of beroofd houdt, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.
Quote
He who intentionally robs or deprives a person of his liberty unlawfully will be punished with imprisonment of up to eight years or a fifth-category fine.

The relevant legal questions here are what a person entails and what it means to deprive a person of their liberty. Broadly speaking there are three possibilities with regard to souls:

  • There is neither evidence for souls nor for the stealing thereof. [There is no evidence that souls can be stolen.]
  • There is evidence for souls, but stealing them is roughly comparable to stealing hair or nails.
  • There is evidence for souls, and stealing them has severe consequences. For example, a person can recall how their soul was kept in captivity, and during the absence of the soul their body entered into a comatose state.

By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping. In other words, some variety of the third scenario.

Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.

There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.

Gorsuch is crystal clear. A man or a woman is treated in a discriminatory way, which they wouldn't "but for" their sex. Talking about transgender nonsense is nothing but a distraction. Transgender means someone is behaving in a way that's "incorrect" for their sex. Discriminating on the basis of sex is illegal, plain and simple. There wouldn't be any discrimination if there were no sex involved. It's not Gorsuch confusing sex and gender, it's you. ;)

Would your interpretation of Freudian slip let this slide?  :)
That would fit common usage, so that's context dependent. But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
  • Last Edit: 2020-09-13, 12:52:14 by Frenzie

  • Belfrager
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #8
Broadly speaking there are three possibilities with regard to souls:
Four.
There is evidence for souls but souls cannot be object of property, therefore cannot be robbed.

It's the body that is property of the soul, therefore the body can be robbed and if a ransom asked for, kidnapped.

Sorry for the interruption, please continue your legality debate.  :)

A matter of attitude.

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #9
That's fair, I should've phrased that as "there's no evidence souls can be stolen." The reason why isn't relevant to the point about kidnapping.

  • OakdaleFTL
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #10
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping.
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)

Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
 
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
So, medical technology might remove lobotomy from the realm of medical malpractice and situate it among crimes against persons...
Interesting point! But speculative, and not directly before us like "soul stealing" is!

Thanks, for the way you're treating this topic. (You're really getting into the spirit of our court's tradition of oral arguments! :) )

But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
I'm surprised! While I agree with your assessment: flawed explanation, it's not vague... Granting the meaning of "Freudian slip," the patient's remarks to his mum are nothing like a slip. (Indeed, they might likely have been cathartic... :) ) But, then, you've missed not only the point: You didn't get the joke!? :)

BTW: Did you read Kavanaugh's dissent?
进行 ...
"Humor is emotional chaos remembered in tranquility." - James Thurber
No one listens to me as much as I do and even I have my limits...
"Science is the belief in the ignorance of experts!" - Richard Feynman

  • Frenzie
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Re: What's Your Favorite U.S. Supreme Court decision?
Reply #11
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)
Laws are written using words like "souls" and "spirits," for example in a phrase like "cities of 50,000 and more souls" (source). That's a pars pro toto or a metonymy. You're presuming the entire question to be ridiculous, which may not follow. A soul is clearly considered part of a person in common as well as legal use, even if we're just using it as a synonym for "physical person" in current reality. Under the right conditions asking the question may not be so silly as to be dismissed out of hand, whether by the prosecution or a (lower) court.[1] To presuppose that keeping a soul in captivity is not kidnapping seems to be begging the question, unless the law explicitly says "physical body" or if it's otherwise clear that "person" means "physical body."

The Dutch organization of judges somewhat regularly publishes pieces urging lawmakers to make some new law they're considering clearer, precisely so they won't have to say they can't judge. It's not the case that judges aren't aware of what lawmakers are doing and vice versa. I think the consequence of your argument is that a judge should be more like a stupid computer program[2] than like Gorsuch who skillfully uses practically applied philosophy.

That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
That's the point; I'm providing a more accurate analogy with regard to transgender people. Transgender people are dirigibles.

Quote from: Gorsuch
Employers may not "fail or refuse to hire or...discharge any individual, or otherwise...discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex.

Whether you're discriminating against a woman wanting to ride horses or against a woman wanting to fly previously unheard of dirigibles is irrelevant. You're still discriminating based on sex.

BTW: Did you read Kavanaugh's dissent?
Yup, he does nothing but repeat things that were already thoroughly addressed by Gorsuch. He's even so nice as to contradict himself for us: "our role as judges is to interpret and follow the law as written, regardless of whether we like the result." Which is what Gorsuch did. It's Kavanaugh who's trying to wedge in an absurd definition of sex to avoid following the law as written.
Cf. https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc. with regard to some uses of the word "person" in legal parlance.
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