The Federalist Society's entire annual convention was just broadcast online this past week,[0] and it's pretty typical of the Society's activities: hosting panels, debates, and speeches on the law featuring a wide breadth of views. If the Federalist Society is some kind of "conspiracy"—one that you can join today, for fifty bucks!—then so is pretty much every other civic organization in existence.
[0] https://fedsoc.org/conferences/2020-national-lawyers-convent...
Plenty of things are conspiracies in the "conspiracy to commit murder" sense, without being conspiracies in the "conspiracy theory" sense.
Roberts, Gorsuch, Kennedy, O'Connor and Souter all switched sides on major issues. Conservatives switch sides a lot more often, but perhaps because the court has been tilted towards Republican nominees.
When it comes down to real decisions by SCOTUS, they usually come out more moderate and narrow than you might imagine.
Among the Democrat appointees, Kagan has a more independent record than Sotomayor but came afterward.
I know there are counterexamples but my point is that there's not an obvious trend toward more partisan justices, or at least no evidence has been presented so far in this thread.
For people like me, I don't care what "side" a justice is on. The justices literally choose which cases they accept... Of course there will be some debate on them.
What I find absolutely horrid is that the courts are packed with nominees hand selected by a group of US senators who not only cannot represent the majority of the US population/citizenry, but are also actively antagonistic toward people's will to determine their own future (see obstructionism by McConnell during the Obama years).
Part of the job of the Senate is to represent the minority. They typically aren't the starting place for major legislation, but often slow down or heavily amend it.
You could argue that the minority should have no power at all, I suppose. Democrats used a similar argument to remove the judicial filibuster, which was a great idea right until they became the minority in the Senate.
That's really the big lesson that people never seem to learn about democracy: you'll be in the minority at some point, so get protections/obstacles in place while you're in the majority, or you'll regret it sooner than you think.
The math is transparent.
The filibuster is just something the senate made up. It does not exist in the constitution, so it is not a true obstacle. The R senators would have gotten rid of it anyway. It doesn't even protect the Senate "minority".
And the Senate's job is to prevent people from determining their own future. It was championed by anti-democracy activists like Alexander Hamilton. I hope it no longer exists by the time I perish.
Sure, this is a lesson about democracy. It's a lesson about how to subvert democracy.
Two sides of a conservative position.
The US, in general, does not have any non-conservative judiciary. Stare decisis by itself ensures that there is a strong conservative streak in the available pool of jurists. So yes, the Supreme court has center-left (Sotomayor), centrist (Breyer, Kagan), center-right(Roberts, Kavanaugh, Gorsuch), and reactionaries (Alito and Thomas), but nobody as far "left" as it has "right".
Historically, for example, William O. Douglas was about as left as the court has gotten, and he was more in favor of environmentalism and ending the Vietnam war than really aggressive left wing concepts.
Now you're bringing up a different claim, which is that the two major parties don't really represent a variety of ideas. That's a fine claim to make, but it doesn't contradict my point.
The other major shift is actually more along the axis of social libertarian vs authoritarian, which is not as clearly divided as "republican vs democrat", especially considering the late RBG was clearly an authoritarian in some respects, despite being fairly left of center.
Taking any of this as evidence that the court is non-partisan is pretty incorrect: They're consistently partisan in clearly obvious ways, even controlling for other issues.
Are any of them arguing for an ethnostate? For shipping non-whites "back to where they came from"? For re-establishing anti-miscegenation laws?
Your perspective is absurd. Of course the court has a left wing. It's just not radical enough for your liking and, similarly, the court's right wing isn't radical enough for David Duke's liking.
Don't kid yourself. This is exactly what they're after. Another couple of elections of the likes of Trump and they may get it.
The only debate among conservatives is over whether they should be overtly racist, like Trump, or covertly racist, like his predecessors.
If they get enough power, the velvet glove will slip from the iron fist.
If there was a political, legislative will, "the people" could pass an amendment to the law specifying that gay marriage is not allowed or protected.
https://slate.com/news-and-politics/2017/01/how-the-federali...
From the Federalist Society website:
" Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community."
This text at least implies that such lists produced will be candidates favorable to libertarian or conservative ideologists.
The connotation of secrecy with the work "conspiracy" is only one definition. "Conspiracy" and "conspire" have the same root:
> 1. the act of conspiring
* https://www.dictionary.com/browse/conspiracy
> 2. to act or work together toward the same result or goal: The wind and rain conspired to strip the trees of their fall color.
* https://www.dictionary.com/browse/conspire
> A civil conspiracy or collusion is an agreement between two or more parties to deprive a third party of legal rights or deceive a third party to obtain an illegal objective.[1] A conspiracy may also refer to a group of people who make an agreement to form a partnership in which each member becomes the agent or partner of every other member and engage in planning or agreeing to commit some act.
* https://en.wikipedia.org/wiki/Conspiracy_(civil)
> This is a list of political conspiracies. In a political context, a conspiracy refers to a group of people united in the goal of damaging, usurping, or overthrowing an established political power. Typically, the final goal is to gain power through a revolutionary coup d'état or through assassination. A conspiracy can also be used for infiltration of the governing system.
* https://en.wikipedia.org/wiki/List_of_political_conspiracies
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.
Does anyone have a link to the transcript? I can only find video clips of the keynote speech.
https://reason.com/volokh/2020/11/12/video-and-transcript-of...
Why? Catholics (as an example) don't perform or internally honor Jewish (as an example) weddings, either, without it being any sort of First Amendment issue.
That’s why Catholic discussion of Jewish marriages is not a First Amendment issue, while Supreme Court Justice Alito advocating against gay marriage is.
Right. That's my point; there's no need to reconcile the First Amendment with permitting gay marriage. There's nothing to reconcile.
The common "allowing gay marriage is an infringement of religious freedom" argument is bunk for that reason.
No religion has the right to demand of others that they respect its belief.
"You cannot, because my religion disapproves" is the religious first amendment version of "Your right to swing your fist ends where my nose begins".
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.
https://www.nytimes.com/2020/11/13/us/samuel-alito-religious...
https://www.npr.org/2020/11/13/934666499/justice-alito-pande...
You can watch the whole thing for yourself here:
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.
There should be a term limit for everyone in government like presidents do - mayors, congressmen, senators, judges...
Can't you just make it so it's x years appointment, but you can't be reappointed?
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.
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.
So like a MAGA fedora?
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).
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.
http://www.dorfonlaw.org/2017/08/how-determinate-is-original...
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.
http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.h...
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?
https://www.law.cornell.edu/wex/marriage
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?
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."
https://www.scotusblog.com/2018/05/constitutional-interpreta...
https://ahousedividedapd.com/2020/10/15/originalism-and-the-...
For a counter-argument (with which I don't agree):
https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?artic...
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.
- 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.
That's originalism.
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.
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.
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.
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.
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.
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.
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?
I would say the intent is much narrower than the actual text so while "a well read electorate" would call for more than just political speech, such a First Amendment would be allow more laws to restrict speech without being unconstitutional.
People in the armed forces don't own the weapons they use now. Today, the National Guard is basically the "Militia." Even if you think militia needs to include organizations not directed by governors, weapons can be owned by smaller political entities (towns, counties, etc.) or NGOs. In any case, weapons for a militia can be stored in an armory, not in every member's home or on their person all the time.
Yet again, even if some of the weapons were stored in the home, there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.
Justice Scalia rejected the notion of giving much importance to the intent of drafters. His objective was to interpret the text according to its original public meaning.
As Scalia noted in Heller, the Second Amendment "codified a pre-existing right"; it didn't grant a new right. And although "self-defense had little to do with the right’s codification", "it was the central component of the right itself".
>People in the armed forces don't own the weapons they use now.
That's exactly the system that the framers wanted to avoid. The citizen militia (with their own privately owned arms) was envisioned as an alternative to a standing army in times of peace.
>Today, the National Guard is basically the "Militia."
The National Guard is the organized part of the militia. The unorganized militia has much broader membership. https://www.law.cornell.edu/uscode/text/10/246
>there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.
The trigger-lock requirement wasn't limited to storage. It didn't have an exception to allow removing the trigger lock to use to the gun in self-defense or for carrying holstered on one's person. That's why it was ruled unconstitutional.
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.
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.
In the view of the theory underlying the second amendment, it is an existential threat to the latter which makes assuring that the State can meet it's internal and external security needs solely through small permanent cadres plus mobilization of the citizen militia of paramount importance.
> Standing armies were the part of the motivation for the 2nd Amd.
Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.
This is inaccurate?
https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45
James Madison argues from the assumption of having an standing army, and why an armed populace makes a Federal tyranny unlikely.
There are many (most) things I don’t like about Republicans, but making THIS an issue is something I just don’t understand about Democrats.
Pick your battles.
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...
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.
Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.
Via ye olde wikipedia: 'In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".'
This is the start of a very short road to bandying around conflicting subjective interpretations of what the original founders believed, rather than what's in the text of the constitution or the law. You can have rule of law without second-guessing the founders; if you get unintended consequences, update the law and/or constitution accordingly. It's meant to be a living document, right? In the meantime, protections for gay and transgender people based on equal rights laws is a feature, not a bug.
[on edit: To put an even finer point on it, Alito's arguing originalism because he doesn't like the text. That is fundamentally against the rule of law.]
The constitution was not originally intended to be a 'living' document; that theory came about in the progressive era as a way to change the meaning of the constitution without amending it.[1]
And do not tell me those contracts were considered illegal at the time they were written.
Edit: for the downvoters, please let me know how Scalia's religious beliefs were completely compartmentalized and had no influence on him outside of a church: https://www.ncronline.org/blogs/ncr-today/justice-antonin-sc...
Grassroots democratic action = people pursuing political ends I do like
"$TYCOON_I_AGREE_WITH is a shadowy oligarch undermining democracy with dark money" = unfounded conspiracy theory
It's an argument especially relevant to the startup community because great startups disrupt the economic status quo. Take away the system that enables that and you are left with top-down/autocratic economic systems. They have their benefits, efficient use of resources, so long as it benefits the regime, but over time, since autocratic regimes are optimized to keep people in power, they can't innovate as well. The highest profile example recently, was Jack Ma's attempted IPO that got shut down because he offended Xi in a speech. Loyalty to the top trumps all.
The influence of the Koch family on politics and public opinion has been devastating.
The Federalist Society is a conspiracy against democracy.