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If you guys don't pay attention to the marriage equality thread, a federal district court overturned Pennsylvania's marriage ban. The opinion is very well written and uses Scalia's dissent in Windsor as justification for applying heightened scrutiny because he argued the court obviously wasn't using a rational basis review when deciding that case. Here's the full text. EDIT - http://www.aclupa.org/files/8714/0061/1059/WHITEWOOD_OPINION.pdf Thought I had pasted it here. MY BAD Mr. Nice! fucked around with this message at 01:56 on May 21, 2014 |
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May 21, 2014 01:34
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You're missing a link to the opinion, Mr. Nice! Your sins will never be forgiven, you monster. Discendo Vox fucked around with this message at 03:42 on May 21, 2014 |
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May 21, 2014 01:39
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Yeah I had pulled it up in my browser history, hit option x to cut the highlighted link and closed the browser window. What I didn't notice is the focus had left the address bar as soon as the PDF loaded so it didn't actually copy anything. I just pasted something else. I did it again when I went in to edit it.
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May 21, 2014 01:57
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Eugh. This reads like an ACLU advocacy piece instead of a judicial opinion.
Discendo Vox fucked around with this message at 03:58 on May 21, 2014 |
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May 21, 2014 03:43
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Discendo Vox posted:Eugh. This reads like an ACLU advocacy piece instead of a judicial opinion. Honestly I'm not in favor of all this showy, mugging rhetoric. Yeah, it's historic. You get to write it, great.
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May 21, 2014 03:48
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Discendo Vox posted:Eugh. This reads like an ACLU advocacy piece instead of a judicial opinion. *sighs contentedly*
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May 21, 2014 03:49
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SpiderHyphenMan posted:*looks at custom title* To clarify, I'm not disagreeing with the outcome or rationale of the decision, it's the use of loaded, deontological and political language in stating the decision that I object to.
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May 21, 2014 03:58
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Discendo Vox posted:To clarify, I'm not disagreeing with the outcome or rationale of the decision, it's the use of loaded, deontological and political language in stating the decision that I object to. What could possibly be wrong with the use of deontological language to describe an outcome compelled by previous cases?
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May 21, 2014 04:32
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ulmont posted:What could possibly be wrong with the use of deontological language to describe an outcome compelled by previous cases? Well, to give the immediate example, the opening line of the opinion is "Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love." That's framing the issue in terms of an absolute right, to say nothing of a legal standard for marriage not normally required. The opinion has a set of section titles mimicing the traditional vows, for heaven's sake. The whole opinion is filled with loaded language. It's like Jones thinks he'll be called on perform public dramatic readings of it on an annual basis. It's a poorly written decision, because this rhetorical embellishment makes it less effective to parse from a legal perspective, and easier to poke holes in and attack within the legal discourse. If the outcome were compelled by prior caselaw, then it would be much more effective if the author stated that plainly, rather than talking about the "ashbin of history". Discendo Vox fucked around with this message at 05:20 on May 21, 2014 |
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May 21, 2014 05:17
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No gently caress you, it is a fundamental right, and it's about drat time the legal system stopped pretending that the bigots have any motive other than sheer spite and hatred in preventing people in love from getting married. The bigots have no arguments. The decision could have just been "Suck it, homophobes" in 72-point font and it would have been no more vulnerable to counterarguments than this.
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May 21, 2014 06:01
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Yeah I was just complaining because it's corny.
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May 21, 2014 06:07
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I think it's sweet 
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May 21, 2014 06:13
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VitalSigns posted:No gently caress you, it is a fundamental right, and it's about drat time the legal system stopped pretending that the bigots have any motive other than sheer spite and hatred in preventing people in love from getting married. First off, you really don't need to start off your response by swearing at me. We have similar views of the subject, and attacking me for disagreeing with the content of the decision doesn't help the discussion. I didn't say that the decision treats the right to marriage as fundamental, I said it treats it as absolute, which is separately problematic. The right to marriage isn't absolute, and it's also not predicated on love. The difficulty is that while you and I may disagree with them, the bigots do in fact have arguments- arguments and judges, and PACs, and test cases, and a mass of state legislators. A rhetorically laden decision- or a "sweet" one, is going to be less effective at making the decision stick than a tersely worded one that Scalia, Thomas and Roberts et al will have more trouble flipping. Quoting Scalia on Windsor is fine, and it may be very effective, but every embellish beyond the structure of the legal argument is a piece of dicta a conservative lawyer or adjudicator can use to get out from under, or reverse, this decision. Generally, it's a poor practice for judicial language to contain this sort of unnecessary laden language. It's not about how the decision makes us feel, or whether we agree with it. Judicial decisions should function as technical documents, not opinion pieces. To treat them otherwise, or to allow their derogation to a pattern of such practice, harms the effectiveness of the legal system more generally. And yes, "Suck it homophobes" would probably not have survived the appeals process- and it's unlikely its author would have, either. vvvvv No, because that would require a clear distinction between dicta and decision. The nature of stare decisis invites selective and skewed application of prior caselaw, and the examples of that are infinite. Grandiose judicial language is bad judicial language, because unclear judicial language produces unclear law. Discendo Vox fucked around with this message at 07:03 on May 21, 2014 |
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May 21, 2014 06:40
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Discendo Vox posted:I didn't say that the decision treats the right to marriage as fundamental, I said it treats it as absolute, which is separately problematic. The right to marriage isn't absolute, and it's also not predicated on love. The difficulty is that while you and I may disagree with them, the bigots do in fact have arguments- arguments and judges, and PACs, and test cases, and a mass of state legislators. A rhetorically laden decision- or a "sweet" one, is going to be less effective at making the decision stick than a tersely worded one that Scalia, Thomas and Roberts et al will have more trouble flipping. Quoting Scalia on Windsor is fine, and it may be very effective, but every embellish beyond the structure of the legal argument is a piece of dicta a conservative lawyer or adjudicator can use to get out from under, or reverse, this decision. Given how unanimous decisions have been on this post-Windsor, it's not going to get reversed  Can you point me to a case where a Circuit Court reviewed de novo and reversed because of grandiose language alone? Homura and Sickle fucked around with this message at 06:51 on May 21, 2014 |
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May 21, 2014 06:47
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I have a lot less of a problem with judges writing like that than I do with briefs being written like that, but only because I think it's more powerful to lay out the facts when they're that stark and just let them speak for themselves and therefore it becomes an issue of pragmatism. On the contrary, I think that intensely personal opinions can be instrumental in sticking an opinion in the jurisprudential firmament, like "Blackmun's" dissent in Bowers and likely Sotomayor's in Schuette in the future.
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May 21, 2014 07:47
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Discendo Vox posted:Well, to give the immediate example, the opening line of the opinion is "Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love." What does "deontological" mean to you, as compared to "loaded" and "political?"
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May 21, 2014 13:10
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If only that Pennsylvania judge had kept his flowery language in check, Scalia and Thomas might have joined in overturning the bans nationwide...but through his sloppiness the 9-0 ruling upholding marriage bans dealt a grievous blow to LBGT rights. Oh, the hubris... 
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May 21, 2014 13:20
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The Warszawa posted:I have a lot less of a problem with judges writing like that than I do with briefs being written like that, but only because I think it's more powerful to lay out the facts when they're that stark and just let them speak for themselves and therefore it becomes an issue of pragmatism. On the contrary, I think that intensely personal opinions can be instrumental in sticking an opinion in the jurisprudential firmament, like "Blackmun's" dissent in Bowers and likely Sotomayor's in Schuette in the future. Yeah I agree with this. Sometimes the best opinion is one coldly laying out the facts and why they compel a decision. Other times, like this one, these decisions are very appropriate because it's important to make it clear it's an issue of fundamental justice and cold facts and legal logic don't do the decision justice. A written decision isn't just about the legal principles that apply: it's also about why those are the correct legal principles to apply.
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May 21, 2014 13:24
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Also it's trolling Scalia.
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May 21, 2014 13:27
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hobbesmaster posted:Also it's trolling Scalia. This.
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May 21, 2014 13:36
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I still don't understand why people think quoting Scalia's dissent is trolling him - he wrote that the logic of the decision compelled courts to allow gay marriage, judges now quote that language in decisions requiring states to allow gay marriage, he gets to be smug and say "See, that decision does require the courts to allow gay marriage and my dissent was right." He's probably not happy at the outcome of the cases, but using his language isn't exactly trolling him since this is exactly what he predicted would happen and arguably even undermines some of the majority logic (since they were too afraid to support gay marriage and wrote lots of "no, no, this definitely won't lead to courts ruling in favor of gay marriage" into their opinion).
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May 21, 2014 15:30
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The truly comedic thing is that his dissent in Windsor is him calling out the majority for writing a conclusion that does not follow from their reasoning when he has done exactly that on a zillion other cases.
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May 21, 2014 16:12
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blackmongoose posted:I still don't understand why people think quoting Scalia's dissent is trolling him Its more like "Hey Scalia you were exactly right about what the majority decision means and its a good thing"
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May 21, 2014 16:26
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ErIog posted:The truly comedic thing is that his dissent in Windsor is him calling out the majority for writing a conclusion that does not follow from their reasoning when he has done exactly that on a zillion other cases. Didn't he do it earlier that week with the VRA ruling?
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May 21, 2014 16:34
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hobbesmaster posted:Its more like "Hey Scalia you were exactly right about what the majority decision means and its a good thing" It's easier to cast into the civil rights era, imagining Scalia said "The way it's written now, white women will start getting married to BLACKS!" Scalia was saying it as a harbinger, all waving his hands and waggling his fingers in impotent rage. The circuit court judges quoting him are using it as a factual statement that yeah, interracial marriages are totally fine and in fact protected by law. See, even the hateful bigot technically agrees with us  .
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May 21, 2014 17:38
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ulmont posted:What does "deontological" mean to you, as compared to "loaded" and "political?" It refers to the broad invocation of rights language. It's not that there isn't an appropriate place for rights language in the case, there obviously is, it's that Jones messes with it by also tossing in a bunch of overbroad or inaccurate language about rights at the same time. This encourages sloppy application, practice and thought involving rights law. The Warszawa posted:I have a lot less of a problem with judges writing like that than I do with briefs being written like that, but only because I think it's more powerful to lay out the facts when they're that stark and just let them speak for themselves and therefore it becomes an issue of pragmatism. On the contrary, I think that intensely personal opinions can be instrumental in sticking an opinion in the jurisprudential firmament, like "Blackmun's" dissent in Bowers and likely Sotomayor's in Schuette in the future. I'd note that your examples are both dissents- although the citation of dissents can still make this problematic, it's a lot less so because it's not normally serving the function of law. I suppose it would be helpful to separate out my two objections here: 1. Jones' opinion is so freaking flowery that it's going to be more vulnerable to attack in this particular case, and 2. Unnecessary, rhetorical or invective language in judicial opinions (I'm here especially referring to majority or binding decisions, not dissents) are a source of structural problems, both within a common law system and within a broader republican government. evilweasel posted:Yeah I agree with this. Sometimes the best opinion is one coldly laying out the facts and why they compel a decision. Other times, like this one, these decisions are very appropriate because it's important to make it clear it's an issue of fundamental justice and cold facts and legal logic don't do the decision justice. A written decision isn't just about the legal principles that apply: it's also about why those are the correct legal principles to apply. The concept of "Justice" is doing a lot of work in your reasoning here. What do you mean by it, and how does this sort of decision serve justice in the micro and macro scale?
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May 21, 2014 17:58
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Discendo Vox posted:1. Jones' opinion is so freaking flowery that it's going to be more vulnerable to attack in this particular case Do you really think this is an actual concern? That a superior court may overturn his ruling because his flowery opinion wasn't specific enough in its reasoning to address some heretofore untried but brilliant anti-marriage equality argument? Could you maybe explain exactly what this vulnerability is? The bigots have no arguments. None, at all. Every single one they've offered (like "but protect the children!") has been exploded scientifically as false, yet they cling to their position anyway because it's not about rational arguments and never was; it was only ever about hatred and I'm glad everyone has finally stopped taking them seriously and the opinions coming out are pretty much "No, gently caress you, you're the same people who wouldn't let mixed-race marriages happen, go the gently caress away."
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May 21, 2014 18:39
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Cheekio posted:It's easier to cast into the civil rights era, imagining Scalia said "The way it's written now, white women will start getting married to BLACKS!" My worry with this is that it seems pretty clear that Kennedy doesn't want to take the step of explicitly making sexual orientation discrimination subject to heightened scrutiny (c.f. Windsor with all its dancing around the subject), so lower courts claiming his decisions amount to that rubs it in his face a little and might cause him to have some backlash (perhaps prompted by some "I told you so" from Scalia) when one of the marriage cases makes it to SCOTUS without being punted. It sucks that the only way to make progress on this is to convince an old white dude that he's not changing things too much, but we're probably lucky that at least he recognizes which way society is moving and wants to be remembered positively on the issue.
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May 21, 2014 18:46
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I was always under the impression that the 'necessary' part of the Necessary and Proper clause meant a law required in order for Congress to serve its function. Someone else seems to be slightly twisting the meaning, making it to sound more like "necessary because the free market isn't serving the function" They say that the only reason the government hasn't taken over every industry is because that would be unconstitutional because 'necessary' is only so if there isn't already an industry serving the purpose (and is adequate). This goes along with the health care ruling, and whether or not a single-payer system would be constitutional. Which, I mean, never really was in doubt I don't think until Roberts came in with his ruling. That being said, how does Roberts' opinion muddy the waters with respect to Medicare's constitutionality? Other than that, I don't really think its ever been expressed that an industry must be in shambles in order for it to be Constitutional for the government to take over. My opinion is that the government hasn't nationalized 'everything' because it never felt it needed to, not that it would be unconstitutional to do so. It's pretty obvious they're going to defer to private industry for whatever, but whether or not a private industry serves a function or not shouldn't have a bearing on whether or not a law is constitutional or not. I'm sure I've got my opinion partially wrong somewhere, but I don't see the other side of the argument at all. Doctor Butts fucked around with this message at 19:05 on May 21, 2014 |
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May 21, 2014 18:55
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Discendo Vox posted:It refers to the broad invocation of rights language. It's not that there isn't an appropriate place for rights language in the case, there obviously is, it's that Jones messes with it by also tossing in a bunch of overbroad or inaccurate language about rights at the same time. This encourages sloppy application, practice and thought involving rights law. Well if you want opinions of the Court that fit the bill, look at O'Connor in Grutter or Roberts in Parents Involved, though that last one may depend on whether your classify smug as an emotion.
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May 21, 2014 19:10
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Discendo Vox posted:The concept of "Justice" is doing a lot of work in your reasoning here. What do you mean by it, and how does this sort of decision serve justice in the micro and macro scale? I mean the principles placed into the Constitution under the Bill of Rights and the 14th Amendment that place certain actions outside the legitimate power of the majority to enact into law. Decisions resting on those sorts of principles should (and generally do) elaborate why justice commands a certain result because you need to explain not only what the law is, but why it is that way.
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May 21, 2014 19:22
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blackmongoose posted:My worry with this is that it seems pretty clear that Kennedy doesn't want to take the step of explicitly making sexual orientation discrimination subject to heightened scrutiny (c.f. Windsor with all its dancing around the subject) He does and he doesn't. He clearly believes that it should be subject to hightened scrutiny (which is why he always applies it, regardless of what he claims he is doing), he clearly believes in the end goal of equality, but he clearly also believes there's only so fast the Supreme Court could push the issue. He has been avoiding announcing highened scrutiny because that would essentially at a stroke invalidate all remaining gay marriage, gay adoption, etc laws. I do not doubt that at some point he'll write a decision affirming sexual orientation is subject to hightened scrutiny, but it won't be until he thinks the politics have moved enough to do so. Given the last year, that's looking sooner and sooner.
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May 21, 2014 19:26
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blackmongoose posted:the only way to make progress on this is to convince an old white dude that he's not changing things too much America.txt Doctor Butts posted:My opinion is that the government hasn't nationalized 'everything' because it never felt it needed to, not that it would be unconstitutional to do so. It's pretty obvious they're going to defer to private industry for whatever, but whether or not a private industry serves a function or not shouldn't have a bearing on whether or not a law is constitutional or not. I thought this was already settled. Didn't Teddy Roosevelt or someone openly threaten to nationalize some industry if the owners kept refusing to negotiate with strikers? Fake edit: Apparently I'm thinking of Youngstown and it kiiiiiind of seems like the Court would have been cool with it if Congress had done it instead of Truman. But I am pretty much ignorant about this.
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May 21, 2014 19:36
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VitalSigns posted:I thought this was already settled. Didn't Teddy Roosevelt or someone openly threaten to nationalize some industry if the owners kept refusing to negotiate with strikers? The Takings Clause makes it pretty clear that the Government can take whatever property it wants for a public purpose, as long as it pays just compensation. You'd have to argue a nationalized industry wasn't for a public purpose and that would be hard considering that selling the property off to a developer is.
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May 21, 2014 20:32
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Discendo Vox posted:I suppose it would be helpful to separate out my two objections here: 1. Jones' opinion is so freaking flowery that it's going to be more vulnerable to attack in this particular case, and 2. Unnecessary, rhetorical or invective language in judicial opinions (I'm here especially referring to majority or binding decisions, not dissents) are a source of structural problems, both within a common law system and within a broader republican government. I understand your objection to the language to be, that law decisions should be precise. I agree, in principle. It bears consideration, beyond what has already been pointed out about arguing from a fundamental right, that in this case, the judge knew his ruling would not be appealed. Any vulnerability his prose might induce, was only rather periferal, since his basic argument is the same as what we have seen used in most, if not all, of the other cases at state level on this issue recently. Or to put it another way, if his ruling was too "loose", there are 4 or 5 others that employ other language, but argue the same point that may be referred to. He might even have employed "tighter" language, if his was not the final word. Excessive prose could also be a problem, if it is not well founded in precedent and case law, via references, or leaves the meaning of statements open to interpretation and ambiguity. I think you need some pretty special glasses, to read the intent of this case as anything by firmly set in stone. That was made abundantly clear. So in this case, while the principle of precise legal language may be sound, I think a bit of "flowery language" and emotional investment is in order. Especially since we are talking about an argument, like many involving the constitution, that basically boils down to "We, as a society, feel that this is the right thing to do". Principles mainly exist, after all, to make us think twice before doing something. GhostBoy fucked around with this message at 20:46 on May 21, 2014 |
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May 21, 2014 20:34
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I should probably caveat all of this by saying that, although I'm not a psychotic, hypocritical textualist nutjob like Scalia, I do lean further toward formalism than I suspect most of the thread does. I'd really like the courts (and the Court) to be depoliticized as much as possible, and a greater degree of formalism (consistent, ethical formalism, not Scalia formalism) could go some way toward stabilizing the justice system, regulating its outcomes, and generally making it more just- and the government more democratic, as a result.evilweasel posted:I mean the principles placed into the Constitution under the Bill of Rights and the 14th Amendment that place certain actions outside the legitimate power of the majority to enact into law. Decisions resting on those sorts of principles should (and generally do) elaborate why justice commands a certain result because you need to explain not only what the law is, but why it is that way. Thanks, that clarifies things. To the extent that this is the case in a given scenario, I actually think a dispassionate approach to the subject is even more important! Right now a broader interpretation of a particular right is what I'd consider the correct one, but to the extent that constitutional interpretation is used for prescriptive purposes, establishing a clear standard or principle for the pursuit of justice is necessary to avoid creating a legal mess further down the road. Penumbras are fun to theorize about, and they can help you get where you want to go, but they also produce massive fractures in the jurisprudence that cause problems for the interpretation and application of the law. To be clear, some degree of ambiguity and rhetoric judicial decisions is unavoidable, and I'm not suggesting that decisions need to be technocratic snoozefests, either (though the communication scientist in me says there are a bunch of format requirements that could be introduced to judicial opinions that would make the legal system work much better). Rather, rhetoric or prescriptive language, if overapplied, serves to obscure the nature and application of justice in subsequent cases- it's clear that the constitution demands something, but what it demands, and how, when, even why, becomes difficult. I might point to the period after Brown as an example of how this sort of ambiguity can be exploited. There's certainly a range of acceptable and understandable means of expressing a textual basis for a principle of constitutional justice, but the decision in question does a lot of poo poo that doesn't accomplish any of those goals. I mean, look at the section headings, for crying out loud. VitalSigns posted:Do you really think this is an actual concern? That a superior court may overturn his ruling because his flowery opinion wasn't specific enough in its reasoning to address some heretofore untried but brilliant anti-marriage equality argument? Could you maybe explain exactly what this vulnerability is? The problem isn't just that it's insufficiently specific, but because the wide array of dicta he included in his opinion give other courts a way to attack it, or distinguish it. I actually already gave you some examples in your own citations if you'll look upthread a bit- fundamental rights are different from categorical and absolute ones, and at different points Jones seems to be asserting all three categories. The bigots have arguments, you just don't agree with them. I think you're right, but this doesn't mean that those arguments don't have the opportunity to succeed again. To the extent that you want to take a victory lap, a judicial opinion is the wrong place to do it. The Warszawa posted:Well if you want opinions of the Court that fit the bill, look at O'Connor in Grutter or Roberts in Parents Involved, though that last one may depend on whether your classify smug as an emotion. Well, it gets weird at the SC level since there's no appeal, but I think the principle generally holds. iirc, I believe that Scalia and Breyer have historically been the worst offenders in terms sacrificing clarity for wit. Could you be specific about the use of rhetoric etc in Grutter? I'm having trouble finding this- which may just indicate that she's doing it subtly enough that I don't view it as problematic. Also, is the default emotion for all Supreme Court decisions- if anyting, I thought the Roberts decision was unusually restrained, for him! I do note that he distinguished Grutter using language that arguably went too far into rhetoric, although it's the classic dicta/decision divide, again.I should also add the caveat that as a bioethicist trying to bring some order to a field in chaos, "principles" can gently caress right off. The drat things are structurally inconsistent- which is why they're popular. Like Scalia with an original text, the user can make them do whatever they want, no matter the inconsistency.  Sorry, "Principlism" is really popular in bioethics right now and it's a freaking mess.GhostBoy posted:good Discendo Vox fucked around with this message at 21:11 on May 21, 2014 |
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May 21, 2014 21:00
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The assertion that the progress of race relations is a) linear and b) such that race-conscious programs can terminate within twenty-five years is rhetoric without an ounce of substantiation let alone substantiation in the law.
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May 21, 2014 21:06
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The Warszawa posted:The assertion that the progress of race relations is a) linear and b) such that race-conscious programs can terminate within twenty-five years is rhetoric without an ounce of substantiation let alone substantiation in the law. The really horrible part of that decision for me isn't that it's rhetorical- it's that I think those parts are meant to be genuinely explanatory and a part of the legal standard expressed. I think Roberts actually believes that poo poo. I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally.
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May 21, 2014 21:15
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It's strange that you're making a big hubbub about the language utilized in a district court opinion which, by the very nature of it being a district court opinion, is on the low end of the scale in terms of precedential value.
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May 21, 2014 21:15
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Discendo Vox posted:The really horrible part of that decision for me isn't that it's rhetorical- it's that I think those parts are meant to be genuinely explanatory and a part of the legal standard expressed. I think Roberts actually believes that poo poo. I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally. Ultimately, though, that's the only threat that the use of rhetoric could actually pose though, since the conclusion in the alternative is "it's dicta who gives a poo poo" as far as later consideration of the case goes.
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May 21, 2014 21:19
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