Thought for the Day

[broncofan]

Many conservatives are attracted to a philosophy of statutory interpretation called textualism. According to textualism, a statute has an unambiguous meaning based purely on the denotation of the words contained in it and a Judge should never consider the purpose of the statute as a whole when interpreting it. Although language can yield agreed upon meanings, legislators have often not contemplated the applications of the many generic words they use in statutes. It is an aspect of humility to understand that anything that is intended for broad based application is going to be tested by unusual circumstances and that the purpose of the statute is a better guide to its application than a literal rendering of the words.

This may not seem obvious until you see examples of textualism in action and realize that most things that are intended to be used as guideposts contain unintended ambiguities. It does not resolve the ambiguity to say let's simply take the statute as it is regardless of whether the result is counter-intuitive or incoherent. The best way to figure out what something means is to understand where a sentence or clause fits within a scheme and by asking why that scheme was constructed to begin with. I understand the concern of conservatives about the proper role of each branch and the fact that legislation is adopted by Congress as it is without implicit meanings appended to it. But if you assume that a legislative body really intends to prohibit activities or protect persons, then it's reasonable to use our native powers of inference and ask what is consistent with their meaning.

[broncofan]

Let's say a statute imposes a life sentence for the use of a gun in a drug transaction. If someone trades a gun for cocaine, should they qualify for a life sentence even if the entire debate that took place in the senate and house before voting on the statute centered around shooting deaths during drug transactions?

[trish]

Many conservatives are attracted to a philosophy of statutory interpretation called textualism. According to textualism, a statute has an unambiguous meaning based purely on the denotation of the words contained in it and a Judge should never consider the purpose of the statute as a whole when interpreting it. Although language can yield agreed upon meanings, legislators have often not contemplated the applications of the many generic words they use in statutes. It is an aspect of humility to understand that anything that is intended for broad based application is going to be tested by unusual circumstances and that the purpose of the statute is a better guide to its application than a literal rendering of the words.

This may not seem obvious until you see examples of textualism in action and realize that most things that are intended to be used as guideposts contain unintended ambiguities. It does not resolve the ambiguity to say let's simply take the statute as it is regardless of whether the result is counter-intuitive or incoherent. The best way to figure out what something means is to understand where a sentence or clause fits within a scheme and by asking why that scheme was constructed to begin with. I understand the concern of conservatives about the proper role of each branch and the fact that legislation is adopted by Congress as it is without implicit meanings appended to it. But if you assume that a legislative body really intends to prohibit activities or protect persons, then it's reasonable to use our native powers of inference and ask what is consistent with their meaning.

Just some thoughts:

I can understand someone arguing in the long run it’s better to force the legislature to amend a law that can at times be unjust, then for a judge to stretch it’s application in a single case to prevent a miscarriage of justice. This argument saves the judge from distinguishing just from unjust or right from wrong: his only job, according to this argument, is to read the letter of the law as written by the legislators and apply it to the case at hand. I understand the attraction here is that such a view of the law preserves (or rather attempts to preserve) a rigid boundary between the legislative and judicial branches of the government.

As a mathematician I appreciate rigorous, clear cut lines. As a physicist I realize they don’t exist in real life. I expect most judges have no problem applying the law as written to most of the cases that come before them. However, I expect that is almost never the case for Supreme Court Justices. It seems to me that one of the major functions of the Supreme Court is to interpret the law in cases where the letter of it out of joint with legislative intent, our sense of justice and our common sense of decency. The ‘frozen-trucker’ case is, I think, an excellent example of how this philosophy goes wrong. You may have noticed how uncomfortable Gorsuch was when Franken was addressing just this case.

Is it actually better to treat one man unjustly in the hope that legislators will rework the law so future injustices of that sort might be prevented? It seems to me that establishing a precedent will prevent those future injustices and at the same time prevent the current miscarriage.

Gorsuch claims he never brings politics to the bench. Yet it is his record on the bench that recommends him to conservatives and gives liberals pause. When a judged is faced with a decision upon which the law is ambiguous I expect him to bring to bear his own sense of what is just, his sense of what is right, his sense of human dignity etc. A libertarian, a moderate conservative, a liberal, a Christian, an atheist will naturally have divergent takes on all of these essential matters. That’s why courts, especially the Supreme Court, have majority and dissenting views on almost all of their decisions.

A Judge should of course always try to be objective, but (in my view) there is no judicial philosophy he can follow that guarantees his decision will not be influenced by his political or religious philosophy. I’m not even sure it’s advisable to keep those things entirely out of the mix. The only real way to keep the courts fair is to keep them diverse.

[broncofan]

I agree with everything you say here. The ability of the legislature to "correct" what they see as a judicial error of interpretation goes both ways, as they can in effect repudiate a decision that interprets their intent too broadly. You're also right that if the court establishes a precedent, it applies to a very specific fact pattern and they can distinguish future cases or if the facts are consistent apply it. To wait for the legislature to codify the meaning that appears latent in the statute is to force them to admit they didn't express themselves perfectly and wait. If the precedent does justice in one case, if applied properly it will again.

I understand the obsession with purism when it comes to interpreting laws. I do think Judges should show some restraint when interpreting intent and only move beyond the text to legislative history (discussions on the floor of Congress) when there is an ambiguity. As we saw in the frozen trucker case, refuse to operate a vehicle was the contested language. A few people pointed out that even a literal translation could have yielded a just outcome; the vehicle could have been considered the truck and trailer, which meant leaving the trailer was a refusal to operate the vehicle as a whole. The difference is that Gorsuch interprets the language without respect to the purpose of the statute. He and Scalia would say, the best guide is the dictionary definition of vehicle and would quote the dictionary.

But for instance, I would not support a decision where a Judge basically says that since the statute is meant to avoid workplace harms, then there doesn't even have to be a vehicle because Congress really just wants to protect workers. Oftentimes the choice is between two tenable definitions and one makes sense given the purpose of the statute.

You are right that Judges are calling upon their values in interpreting statutes and the constitution. Scalia and other textual originalists claim that they are least likely to be political because they are bound by the text. A famous Judge named Richard Posner said that may seem true, but they promote small government by thwarting legislative intent. If one looks at the bare text of the Constitution and then looks at the jurisprudence of the court interpreting it, it becomes apparent that a workable system of government requires Judges to adapt to unforeseen eventualities.

In constitutional law, the entire area known as substantive due process is extrapolated from a section of the constitution (14th amendment) that says government cannot deprive someone of liberty without due process of law. From this, the court in Roe v. Wade said that the right to privacy is a fundamental right, and that a law prohibiting abortion infringes on that right to privacy. Scalia would say, where in the Constitution does it say anything about privacy and who are you as an unelected Judge to tell us what rights are fundamental to liberty? But really why should they abstain?

[broncofan]

The ability of the legislature to "correct" what they see as a judicial error of interpretation goes both ways, as they can in effect repudiate a decision that interprets their intent too broadly.

I was just thinking as an amusing idea, how would the legislature amend the statute to repudiate OSHA's interpretation in the frozen trucker case? They could add a section to the statute that says, "In order to receive the protection of the statute an employee must cease to operate any component of the vehicle. This includes using the vehicle or any component of it for the limited purpose of shuttling himself to a safe destination." Now given that the statute was meant to protect workers and encourage them to report unsafe work conditions, would they have done it? Even if they thought, we didn't consider this possibility to begin with I don't think they would.

[trish]

There was a shooting in a Cincinnati nightclub this weekend killing one and wounding fourteen. But it's all okay, the shooter wasn't Muslim.

[martin48]

Bet he was an immigrant though - some way back in his family line

There was a shooting in a Cincinnati nightclub this weekend killing one and wounding fourteen. But it's all okay, the shooter wasn't Muslim.

[broncofan]

I'm hopeful that the Trump Russia story materializes into something but we have to be careful of the rumor mill. All sorts of rumors abound such as that Flynn has flipped and is talking to the FBI, that the FBI provided Nunes with the information about Trump being swept up in surveillance to test his loyalty, and that Christopher Steele is set to testify. Anything could be true, but these things are not confirmed and the slow pace of the investigation, or the fact that what's known is not public, is causing people to pretend that their speculation is grounded in something more. At least the first two have been repeated by reputable journalists before being walked back as mere speculation by the person who conceived them. I think there has been nothing new (both public and confirmed) since Nunes showed he would obstruct the house investigation.

[trish]

https://nyti.ms/2nR56CO

[blackchubby38]

I'm hopeful that the Trump Russia story materializes into something but we have to be careful of the rumor mill. All sorts of rumors abound such as that Flynn has flipped and is talking to the FBI, that the FBI provided Nunes with the information about Trump being swept up in surveillance to test his loyalty, and that Christopher Steele is set to testify. Anything could be true, but these things are not confirmed and the slow pace of the investigation, or the fact that what's known is not public, is causing people to pretend that their speculation is grounded in something more. At least the first two have been repeated by reputable journalists before being walked back as mere speculation by the person who conceived them. I think there has been nothing new (both public and confirmed) since Nunes showed he would obstruct the house investigation.

I think if the story doesn't materialize into something by the time we have reached Trump's 100 days in office, then the both Democrats and the media to need to put the story on the back burner for awhile. Just until they can find concrete evidence that can't be refuted by even the most irrational Trump supporter.