Activist Judges!

Jonathan Turley mocks the idea of testifying on behalf of the Founders — “a form of necromancy that academics do all the time. And that’s what we get paid for.” Adds that he would strike George Washington from the jury pool because of his “extreme” executive power #impeachment

— Joel B. Pollak (@joelpollak) December 4, 2019

If you haven’t been following the impeachment hearings, apparently Democrats asked some expert witnesses what they believed the founding fathers would think of Trump’s behavior and whether or not they would find it an impeachable offense. This has Republican witness Jonathan Turley (LUL) and Republicans very het up, because as we all know, trying to figure out what is in the minds of the deceased is preposterous.

Unfortunately, that is the EXACT FUCKING judicial philosophy the Republicans have been pushing for the last forty years. RIP, originalism:

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There is functionally no distinction from going back in time and looking at Madison’s writings and applying them to whether or not Trump committed “high crimes and misdemeanors” and the judicial philosophy of originalism.

RIP Originalism, 2019Post + Comments (165)

Reuters says the Supreme Court justices “appear divided” as they hear arguments about whether Title VII protects gay and transgender employees from sex discrimination:

Kavanaugh said little to indicate how he might vote. Conservative Justice Clarence Thomas, who missed the opening day of the court’s term on Monday with an illness, was at the arguments but asked no questions, as is his custom.

The four liberal justices on the nine-member court signaled sympathy toward arguments that LGBT workers are covered under Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against employees on the basis of sex as well as race, color, national origin and religion.

Some of the five conservative justices expressed reservations toward extending protection to gay employees. However, one of them, Justice Neil Gorsuch, asked questions of both sides indicating potential sympathy for the workers. When analyzing whether a person was fired on the basis of sexual orientation, Gorsuch said sex seemed to be a “contributing cause.”

But Gorsuch later in the arguments voiced concern that the court would be overstepping its role if it ruled in favor of gay and transgender workers instead of letting Congress legislate on the subject. Gorsuch warned of “massive social upheaval” that could result from such a ruling.

“It’s a question of judicial modesty,” Gorsuch said.

Weird how “judicial modesty” doesn’t forbid “conservative” judges from asserting control over women’s uteri, barging into LGBTQ folks’ bedrooms or rifling through their underwear drawers. There’s not a molecule of modesty in the whole bunch.

Open thread.

“A question of judicial modesty”Post + Comments (240)

Sorry to step on Alain, but it looks like we need a SCOTUS open thread since we may be about to find out if the chief justice openly embraces partisanship in the service of white supremacy. I’m following along at SCOTUSblog.

ETA: The majority punts on partisan gerrymandering. Justice Kagan’s dissent: “the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

ETA 2: Good-ish news on the census question? From SCOTUSblog: “The majority upholds the district court’s remand to the agency for further explanation of its decision.”

ETA 3: “The Chief Justice explains that, although it is fine when an agency has stated and unstated reasons for a decision — and fine with a new administration comes in with policy preferences — here, the only stated reason for the decision to add the citizenship question seems contrived.”

Ya think? It sounds like the Court Republicans are saying the rule change is fine, but the agency needs to come up with a less obvious lie to justify it.

SCOTUS Open ThreadPost + Comments (126)