Thought of the day: I think this strict constructionism that Scalia and Barrett

[Baitball Blogger]

subscribe to is one of those scams that conservatives utilize, where they insist it's not one thing, when it really is.

Barrett insists that Supreme Court judges should not make policy, but Scalia and Barrett, by trying to keep us in the 19th century with their overly strict and overly self-interested interpretations of the wording of legislation is doing just that. They have an agenda. They have a conservative policy. So when they flaunt that they are not establishing policy, they really are.

I wish someone will bring this up to them: Aren't you hiding your intentions and beliefs by disingenuously using the concept of strict interpretations? How can we expect you to adapt to the changing needs of our world when you use a policy that is so inflexible?

[Imperialism Inc.]

1. It is definitely a scam.

The claim to be able to read the minds of people dead for hundreds of years is just pretext for making history say whatever you want it to say. None of them are trained in history, often get it wrong, and there was no "one true view" anyway. It leads to things like Kavanaugh citing to the "fact" that George Washington added "so help me God" to his oath of office, when in fact that is a myth created years later, in a work of fiction.

[Baitball Blogger]

3. Maybe, then, the Dem members should test her understanding of the forefather's philosophies?

If she isn't an expert on their works and writings, she then doesn't have the foundation to make decisions based on what their intentions were.

Right about now, our side should be doing the same thing and scouring through the Constitution to show that it's a living document.

[empedocles]

2. Seems that scalia always diodged the 'originalism' doctrine problem when the slavery isssue came up

[Baitball Blogger]

5. He was definitely headed in the direction of resurrecting the slavery issue with his

opinion that supported discrimination.

[jmbar2]

4. It's about "states' rights" over federal

A relic of the civil war, states' right proponents wanted states to be able to nullify the federal government on issues like abolition, taxation, desegregation, Brown V Board of Education etc.

Now applied to abortion, marriage equality, and the ACA, among many others. Lindsay Graham summed it up perfectly yesterday when he said that South Carolina doesn't want Obamacare; it wants South Carolina care.

"Democracy in Chains" provides a much deeper look at the origins of this right-left split, and how it forms the basis of what's going on now.

[Baitball Blogger]

7. Is it really States rights? or is it about who makes the profit?

I wonder how much dark money is behind the resistance.

[octoberlib]

6. They should call it what is is ... conservative judicial activism.

I did a post on this the other day. An American history professor said that the arguments against originalism can be found in the founders' own writings. https://upload.democraticunderground.com/100214267994

[Baitball Blogger]

8. YES!! BINGO.

Conservative judicial activism. THAT's EXACTLY what it is!

[unblock]

9. Yes. It's fake intellectualism to rationalize the policies they want.

As proof, when was the last time this great intellectual framework led a right-winger to a left-wing conclusion?

When was the last time one of them said, well, I don't personally like it, but intellectual honesty requires me to come to this very liberal.

Supreme Court cases are often not decided on a simple left-right spectrum and some unusual combinations of justices have formed majorities at times. So there are some oddball decisions.

But the vast majority of cases, and nearly all the major ones, involve the right-wingers making right-wing decisions and then claiming some intellectual justification rather than thinking it through first and letting that lead then to the result.


Bush v. Gore is a good example. Blatantly partisan, and even more so if you read the opinion. Scalia argued equal justice demanded the recount stop because different standards were being used in different counties in Florida. Which left in place a vote based on different voting methods in different counties, and recounts at various stages of completion. And he called that equal justice.

Complete nonsense. The right-wingers in the court would *never* have come to that conclusion had gore been up on the count at that moment.

[Baitball Blogger]

11. If we do nothing else this week, I hope we show the fake intellectualism that

strict constructionism is. It's disingenious in every way. We need to collect the evidence that they are not fixed on any definition of a term, in the way they interpret it differently between cases in order to get the decision they want.

[dlk]

10. It's a bogus intellectual cover to disguise their radical, activist agenda

Yet, they routinely project their machinations onto Democrats. Trump is far from alone when it comes to projection.

[Baitball Blogger]

12. Dems need to break through their gobbly-gook fake authenticity.

They are treating them like it's a valid method.

Just like someone pointed out above, showing how Scalia spun his decision on the term "equal justice" we should scour the legal opinions to show how they did the same thing with other decisions that went their way.

[dlk]

14. Senator Whitehouse's presentation, yesterday, was an excellent start

[jmbar2]

16. Yes!! Watch it if you haven't already.

I was super impressed with his presentation. At the end, he said that it is a preface to the next round of questions he will ask Barrett.

Stay tuned.

[dlk]

31. Can't wait to hear part 2 from Whitehouse!

[Baitball Blogger]

17. I bookmarked links to his clips so I could hear them when I had more time.

Thank you for reminding me.

[dlk]

30. This PSA...

[StClone]

13. Scalia visits the past

Scalia had a good night, but the morning had come and the apple cider from the prior eve appeared to have been tainted. He swung cantedly off his one-horse carriage into the deep muck. So deep his knee high leather boot stuck fast in the mire. He strained mightily to extract the boot, pulled up his long stockings then adjusted his powered wig.

Lastly, he exhaled a curse. Scalia took in a gasp as he righted his three corner hat. His head pounded as did now his tooth to ache again. With no dentist in the region, he had removed the bad tooth himself but it cracked off leaving a jagged root now inflamed.

He was due soon at the Supreme Court, but the Justice was likely to be late, again! Finally he fell to the thoughts of rulings to which he was to lay out. How his thoughts would avoid overly flowery and misleading wording but somehow relay a sense deeper philosophies which were asked for in this situation. To mask his true intentions of undermining the desires of the wretched lessers, his language would appear concise but likely deceive future readers, enduring words of transient thoughts.

[Baitball Blogger]

20. Biggest scam, hatched from the mind of an arrogant person who thinks he's smarter

than everyone else in the room.

[StClone]

22. Originalists see Cory Booker was 3/4 a human

And Now!?

[Baitball Blogger]

25. 3/5ths.

I'm sure they're trying to work their way back there, in their own way.

[StClone]

29. See I don't even know what they meant!

[dlk]

32. All women were chattel when the Constitution was written

This colors “originalists” view toward equal rights for women. How Barrett can twist herself into a logic pretzel is something to think about.

[StClone]

33. That is the beauty of Original ism! No guilt.

Barrett is chattel both as a Fembot and as owned by the GOP/Billionaires.

[dlk]

34. The worst of the worst!

[The Velveteen Ocelot]

15. Constitutional originalism is bullshit.

It assumes that the writers unanimously intended the Constitution to mean certain specific things and only those things, while the truth is that the document was the result of a lot of compromising following some very intense disagreements, as we see in the Federalist Papers. What they intended to do was create a basic government structure that was subject both to interpretation (as is obvious by the fact that the text is short, simple, and often vague), and amendable. In Marbury v. Madison, decided in 1803 by people who were actually around when the Constitution was written, the Supreme Court held that it had the power to interpret the Constitution, even though the power of judicial review by the Supreme Court does not appear anywhere in that document. I hope someone asks Barrett whether she would want to overturn Marbury. Without Marbury the Justices wouldn't have jobs.

[Baitball Blogger]

18. The more I read about it, the more I'm aware the legal scholars should dig deep

and rip it apart with factual research, to show that the founding fathers never expected the Constitution to be interpreted in the inflexible way that they claim. And yes, I would like to hear your questioned posed to Barrett.

[Politicalgolfer]

19. Gee..sort of like using the Bible...

..to justify anything & everything! Or pushing the allegories in it as real...like Garden of Eden & two naked people talking to snakes & eating apples or 7 day creation🙄..oh, wait...the right wing also uses that trick to achieve their agenda.

[Baitball Blogger]

23. My husband and I just started watching West Wing.

There's a scene in Season 2, probably episode 4, where Barlett walks into a room full of press people, only because he wants a taste of the lobster puffs, but he knows he has to say something flowing and inspirational to everyone. Unfortunately he never gets to that table because he recognizes someone in the room. A woman who is a religious zealot who is opposed to gay rights or gays in general. She sits, and won't stand up for him. Then he goes into it, talking to her, reciting Bible verses which ultimately point out how impossible it is to use the Bible as a guideline for today's world, because it requires stoning or killing people for behavior that is universally accepted in today's world. And then, he tells her that everyone stands for the president in the White House. And, slowly, she stands.

Great scene.

[JHB]

21. Yup. A principled-sounding smokescreen for conservative judicial activism.

They certainly don't have qualms making exceptions to it when the chance comes to advancing conservative causes. See Citizens United, or gutting the Civil Rights Act.

Edited to add:

After reading some of the comments above, I'd like to toss one more characterization into the ring:

"Voodoo originalism".

It's meant to look like it's principled and impartial, but the chips always fall the same way. A real "originalism" would take into account the many compromises between various views that went into the constitution. Probably enough so that the term would be useless or redundant.

[Baitball Blogger]

24. I think we can own all those conservatives who don't know squat about court rulings, if we

could point out how the major problems we're dealing with today came down to a conservative Supreme Court ruling.

[JHB]

27. Doubtful. They either think they know better than us or simply don't care.

And inroads made only last until their next fifth of Ol'FOX

[RainCaster]

26. Harkening back to the days when blacks were slaves & women didn't vote

That's all it really is.

[JHB]

28. The goal of Movement Conservatives has been restoring the Gilded Age

That's always the period they laud as the Great Age that we've been led astray from.

[dlk]

35. Which is rich, white male supremacy, with no accountability

No matter how it’s dressed up or disguised, it all comes down to that