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Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by protomyth on Thursday July 09, 2020 @03:28PM (#23784069)
Gorsuch is a joy to read because he mixes in history with some interesting side comments.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by remarkEon on Thursday July 09, 2020 @06:23PM (#23785949)
I spend a lot of time in the summers reading SCOTUS opinions, and I have to flatly disagree with this. Gorsuch peppers in these comments and they distinctly detract from the legal reasoning in the Opinion. It’s cute, but superfluous and further turns justices into “rockstars” to be cheered, which is bad.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by dluan on Thursday July 09, 2020 @07:03PM (#23786291)
this is like commenting code - who is the code meant to be written for? other programmers, or the compiler?
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by remarkEon on Thursday July 09, 2020 @09:45PM (#23787311)
No, this is nothing like commenting code. These comments are not meant for other "programmers" (i.e. Justices). They're meant for the public, which doesn't compile anything with regard to the Supreme Court.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by yellowapple on Friday July 10, 2020 @12:04AM (#23788033)
No, they're meant for other Justices, too, as well as for judges and lawyers beyond the Supreme Court. They're annotations describing the rationale for a decision - the "why" of the verdict - in as much detail as possible, which I reckon to be invaluable to anyone else needing to go back and evaluate that decision and determine its implications.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by remarkEon on Friday July 10, 2020 @12:57AM (#23788289)
Sorry, still disagree. Contrast an opinion from Thomas or Breyer (or even Kennedy for that matter) with this one from Gorsuch. The quips and trite verbiage are absent. And for good reason: it's not serious, and it's something people latch on to instead of the legal text of the opinion, especially today in the world of twitter and memes. People like the idea of Ginsberg as a feminist icon because of her terse dissents and demeanor but that's actually really kind of terrible. This isn't her fault - her opinions are absent of this kind of flowery language. They're to the point and well written. So I guess my point is Gorsuch is just asking for it - to be a pop culture thing. We should not want this of the High Court.

>the "why" of the verdict

SCOTUS doesn't have "verdict[s]".

I'm not a lawyer but I've read probably 200+ opinions for fun over the last decade, listened to maybe 100+ oral arguments. I really love following the Court, and I probably have an allergic reaction to these people growing beyond their britches (they are unelected, after all).

Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by sjy on Friday July 10, 2020 @05:00AM (#23789525)
Surely the public (ie. non-lawyers) are a vanishingly small proportion of the people who read beyond the syllabus?
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by Cthulhu_ on Friday July 10, 2020 @04:26AM (#23789358)
If it makes more people interested in reading legal rulings - and in this case, realize that all of eastern Oklahoma belongs to the tribes - it's a good thing. Awareness is important in rulings like this. This ruling was necessary because a lot of people "forgot" that eastern Oklahoma was given to the tribes.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by modmans2nd on Thursday July 09, 2020 @09:11PM (#23787122)
Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how the writers felt given the time” as foolishness.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by socraticmethod on Thursday July 09, 2020 @10:10PM (#23787445)
Even textualism is an interpretive process by very human judges.
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by shard on Thursday July 09, 2020 @10:30PM (#23787564)
Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by jacobolus on Friday July 10, 2020 @12:06AM (#23788036)
In both cases, the Justice decides based on personal preferences or ideological agenda, but in one case the rationalization is based on cherrypicking snippets from contemporaneous sources to speculate about what authors or supporters (of a statue, treaty, constitution, ...) originally meant long ago, and in the other case the rationalization is based on nitpicking the vocabulary and grammar of the document.

Both conveniently allow the Justice to pretend that their opinion is completely neutral/technical with no personal choice involved, even in cases where the justification is tendentious to an absurd extreme, and to attack those who disagree as radical unprincipled activists with no respect for the rule of law. They absolve the Justice from taking responsibility for the consequences of the decision.

Both originalism and textualism are easily shed by their adherents when insufficient originalist/textualist justification can be found for the desired decision, and following the obvious original intent and plain textual meaning of the statute would lead to an outcome the Justice dislikes.

Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by zjs on Friday July 10, 2020 @02:19AM (#23788709)
(I have no real expertise on this; I'm just relaying my understanding.)

Textualism involves interpreting words with the same meaning that they would have had at the time whey were written.

Originalism involves interpreting words in the same way they would have been intended at the time when they were written.

To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment".

Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment?

Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790?

Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning.

For fun:

Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against?

Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual?

Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance.

Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 may be useful.)

Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by rayiner on Thursday July 09, 2020 @10:27PM (#23787546)
History is relevant to both originalism and textualism in different ways. Originalists look to what the writers intended the words to mean. (This is how we interpret contracts in Anglo legal systems.) Textualists disregard what the writers intended, but do care about what the words meant at the time they were written.

This often leads to the same result, but can sometimes produce divergent results. The drafters of the equal protection clause of the 14th amendment, for example, probably didn't intend to create a framework for striking down laws that treat women differently than men. Ginsberg's brilliance as an attorney was to make essentially textualist arguments that convinced courts that--regardless of what the drafters meant to say, the words they actually used plainly apply to discrimination between the genders is it did to discrimination between races.

Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by jeffdavis on Thursday July 09, 2020 @10:20PM (#23787503)
Which justices do you believe follows originalism, which follow textualism, and which follow neither?
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by jojobas on Thursday July 09, 2020 @11:01PM (#23787730)
Is there a more textual judge than Gorsuch?
Re:U.S. Supreme Court deems half of Oklahoma a Native Americ... by icelancer on Friday July 10, 2020 @01:39AM (#23788497)
Easily Breyer.