Supreme Court Errors Aren’t Hard to Find(propublica.org)
propublica.org
Supreme Court Errors Aren’t Hard to Find
https://www.propublica.org/article/supreme-court-errors-are-not-hard-to-find
80 comments
> They are also supposed to be entirely accurate.
This displays a really distorted perspective of the Supreme Court's role. The Supreme Court is supposed to get the law and the facts of the case right. If there is an error there, that's catastrophic. But the adversarial process is designed to ensure the accuracy of the facts and the law. By the time a case gets to the Supreme Court, the assertions in the briefs have been intensely scrutinized by the parties and typically two lower courts.
Facts about the world outside the briefing, on the other hand, are mostly irrelevant, and relied on for color or their common-sense effect as necessary to flesh out the reasoning.
The background check quote is a good example. There, the Court wasn't even necessarily accepting the 88% number at face value, but cited it for the common-sense proposition that private employers regularly require background checks:
> The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”).
The legal question here was whether it was Constitutional for the government to require certain disclosures. The Court noted that where acting as an employer, the government has more latitude to intrude into private facts than when it acts as the government. It then reasoned, because private employers often require background checks, it was reasonable for the government to do so as well. Whether 88% or 53% of private employers required background checks was irrelevant.
Indeed, if the exact number had been determinative, the Court likely would not have cited to an unvetted amicus brief for the point.
This displays a really distorted perspective of the Supreme Court's role. The Supreme Court is supposed to get the law and the facts of the case right. If there is an error there, that's catastrophic. But the adversarial process is designed to ensure the accuracy of the facts and the law. By the time a case gets to the Supreme Court, the assertions in the briefs have been intensely scrutinized by the parties and typically two lower courts.
Facts about the world outside the briefing, on the other hand, are mostly irrelevant, and relied on for color or their common-sense effect as necessary to flesh out the reasoning.
The background check quote is a good example. There, the Court wasn't even necessarily accepting the 88% number at face value, but cited it for the common-sense proposition that private employers regularly require background checks:
> The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”).
The legal question here was whether it was Constitutional for the government to require certain disclosures. The Court noted that where acting as an employer, the government has more latitude to intrude into private facts than when it acts as the government. It then reasoned, because private employers often require background checks, it was reasonable for the government to do so as well. Whether 88% or 53% of private employers required background checks was irrelevant.
Indeed, if the exact number had been determinative, the Court likely would not have cited to an unvetted amicus brief for the point.
If the facts don't matter, don't cite them.
If they do matter, get them right.
It's pretty sad to apply less scrutiny to a supreme court ruling than a university term paper.
If they do matter, get them right.
It's pretty sad to apply less scrutiny to a supreme court ruling than a university term paper.
The example errors in this article seem to come from amici briefs (NASA v. Nelson) or from the justices' private research (the five other examples). If so, they have not been subject to any adverserial process or lower court scrutiny.
From working around the Supreme Court in my early days in Washington, I think this paragraph is a better explanation:
"In interviews, former law clerks for Supreme Court justices, including some who argue cases before the high court today, said any errors were surely accidental, produced by talented and devoted people doing complex work under daunting circumstances."
As I've been told by people who were clerks, the Justices don't research, or write really anything, especially the longer-serving Justices. Clerks make mistakes. It's not an indicator of the Justices themselves, as this article seems to be hinting at.
"In interviews, former law clerks for Supreme Court justices, including some who argue cases before the high court today, said any errors were surely accidental, produced by talented and devoted people doing complex work under daunting circumstances."
As I've been told by people who were clerks, the Justices don't research, or write really anything, especially the longer-serving Justices. Clerks make mistakes. It's not an indicator of the Justices themselves, as this article seems to be hinting at.
Easiest Supreme Court error to find:
https://en.wikipedia.org/wiki/Wickard_v._Filburn
"Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial', in that it is not produced for sale"
So what the authors of the Constitution meant by "interstate commerce" is "intrastate not-commerce."
For those of you not aware, this is one of the biggest power grabs of the federal government in US history. This decision is used to allow the commerce clause to cover huge swaths of authority.
https://en.wikipedia.org/wiki/Wickard_v._Filburn
"Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial', in that it is not produced for sale"
So what the authors of the Constitution meant by "interstate commerce" is "intrastate not-commerce."
For those of you not aware, this is one of the biggest power grabs of the federal government in US history. This decision is used to allow the commerce clause to cover huge swaths of authority.
No, that ruling by the Court is not an error, it just has different interpretation of the Commerce Clause than yours. Even if you don't necessarily agree with their interpretation (and I'm not sure I do, but they make a compelling argument) it wasn't factual error. It's extremely disingenuous to claim it was. That case entirely is irrelevant to the topic at hand.
>The Supreme Court interpreted the Constitution's Commerce Clause under Article 1 Section 8, which permits the United States Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the scope of the Commerce Clause. Although Filburn's relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn's production could be regulated by the federal government.
>The Supreme Court interpreted the Constitution's Commerce Clause under Article 1 Section 8, which permits the United States Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the scope of the Commerce Clause. Although Filburn's relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn's production could be regulated by the federal government.
If the Supreme Court interprets the Second Amendment to apply to the upper appendages we call arms, that is a factual error, not just a different interpretation. It is possible for an interpretation, given the evidence, to be factually wrong in as much as anything can be factually wrong.
And by that argument, you could Butterfly Effect literally any action as having commerce implications and thus hyperextend the commerce clause into completely reshaping the balance of power between federal and state government. There are just a few supreme court decisions that very rapidly shifted our federal government from one of very limited and explicitly laid out powers, reserving all other powers for the states, to a federal government that has supremacy on almost every topic even several levels of indirection away from their explicitly stated powers.
This was effectively a revolution. The form and breadth of the federal government before and after this and other decisions that made their power nearly universal is as different as the federal government under the articles of confederation versus the constitutional federal government.
The original intention was to make a federal government of limited powers. Between the incredible expansions of the commerce clause and the necessary and proper clause to effectively cover every major aspect of daily life, and the supreme court decision that claimed that the 10th amendment was effectively a "noop", we've reached a system where the federal government has almost universal control. Then they finished up the final power grab by using the power of the purse by taxing more than they need to run federal programs and then only returning money to the states based on compliance with the rest of their agenda.
The dream that was a federal government with limited powers died along the way in the United States. Their power is almost universal today, and that was not the stated or written intention from the start.
This was effectively a revolution. The form and breadth of the federal government before and after this and other decisions that made their power nearly universal is as different as the federal government under the articles of confederation versus the constitutional federal government.
The original intention was to make a federal government of limited powers. Between the incredible expansions of the commerce clause and the necessary and proper clause to effectively cover every major aspect of daily life, and the supreme court decision that claimed that the 10th amendment was effectively a "noop", we've reached a system where the federal government has almost universal control. Then they finished up the final power grab by using the power of the purse by taxing more than they need to run federal programs and then only returning money to the states based on compliance with the rest of their agenda.
The dream that was a federal government with limited powers died along the way in the United States. Their power is almost universal today, and that was not the stated or written intention from the start.
Uhh, that's like saying a CPU is not sold if intel includes it in a computer that was sold. Aka, this was large scale production to feed animals that where then consumed.
So, by any reasonable definition this was commercial wheat production. Now, if he was farming wheat because he liked how wheat fields looked then never used or harvested that wheat for anything you might have a point.
PS: It's a common standpoint that you can't get around laws by this kind of nominal rule bending. AKA, we are a non profit, so the commerce clause must not apply as we are non commercial enterprise.
So, by any reasonable definition this was commercial wheat production. Now, if he was farming wheat because he liked how wheat fields looked then never used or harvested that wheat for anything you might have a point.
PS: It's a common standpoint that you can't get around laws by this kind of nominal rule bending. AKA, we are a non profit, so the commerce clause must not apply as we are non commercial enterprise.
> Uhh, that's like saying a CPU is not sold if intel includes it in a computer that was sold. Aka, this was large scale production to feed animals that where then sold.
Actually this seems perfectly sensible to me. Absent Wickard, we might expect that the national government can regulate the sale of the computer across state lines, but not the installation of the CPU within a state.
Actually this seems perfectly sensible to me. Absent Wickard, we might expect that the national government can regulate the sale of the computer across state lines, but not the installation of the CPU within a state.
I agree a different rulings could have been reasonable which is why the court took the case. My point was simply it was not so unreasonable as to clearly be a mistake.
However, I do think from a pure practical standpoint, letting companies side step regulations by their structure is a bad idea. Aka. If every pig farmer now ends up a a wheat farmer on the side that's a bad outcome.
However, I do think from a pure practical standpoint, letting companies side step regulations by their structure is a bad idea. Aka. If every pig farmer now ends up a a wheat farmer on the side that's a bad outcome.
Words have meanings. Growing wheat for private consumption on one's own land is not "commerce" whatever the honourable idiots of the US Supreme Court think.
The court did not rule if it was private consumption or not saying it was irrelevant.
For a modern example, if 1 million people in Florida install solar panels on their roofs it's going to defacto alter the wholesale electricity market.
Now, if that impact is enough to justify regulation is another issue, but the impact is clearly there.
For a modern example, if 1 million people in Florida install solar panels on their roofs it's going to defacto alter the wholesale electricity market.
Now, if that impact is enough to justify regulation is another issue, but the impact is clearly there.
This argument can be applied to anything, even black market industries. The commerce clause ruling allows congress to make a law about anything explicitly not forbidden in the Constitution or given as a power of a different branch. This was clearly not the writers intentions. It is a loophole of the sort that a judge wouldn't tolerate being used against them in their own courtroom.
The fact we dislike the conclusion does not make the argument void. However, I believe the interpretation is limited by magnitude. Someone growing a tiny number of poppy plants can't extract enough material to make meaningful amounts of Opium. Thus, they don't impact the illegal Opium trade.
Again, the regulation was he could use up to 11.1 acres and he did around twice that which is significant.
Again, the regulation was he could use up to 11.1 acres and he did around twice that which is significant.
Huh? That's not the argument at all. The court's opinion was that because he was growing his own wheat, he was not buying wheat from others, which in turn would affect wheat prices (thus interstate commerce). It had nothing to do with the animals. This case was most certainly overreaching, and the court itself later acknowledged that.
> the court itself later acknowledged that.
It's been clarified but not overturned.
To expand my point for clarity:
In their own words commercial Consumption and commercial Production are both commerce. Remember, if he had used less than 11.1 acres there would have been no problem so this was significant production and significant consumption.
"Whether the subject of the regulation in question was 'production', 'consumption', or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us...[b]ut even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"[4]
In other words, the fact he was Producing wheat or just Using wheat does not side step the issue. He was both a consumer and producer of wheat and thus clearly impacting the wheat market. That final bit just means picking if was a direct or indirect impact does not matter.
Now, I and others may not agree with the interpretation. But, it's not so crazy as to be a clear mistake.
Which is why I said farming wheat in such a way that it is separated from the market aka not harvesting it, would have been a useful but different argument.
It's been clarified but not overturned.
To expand my point for clarity:
In their own words commercial Consumption and commercial Production are both commerce. Remember, if he had used less than 11.1 acres there would have been no problem so this was significant production and significant consumption.
"Whether the subject of the regulation in question was 'production', 'consumption', or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us...[b]ut even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"[4]
In other words, the fact he was Producing wheat or just Using wheat does not side step the issue. He was both a consumer and producer of wheat and thus clearly impacting the wheat market. That final bit just means picking if was a direct or indirect impact does not matter.
Now, I and others may not agree with the interpretation. But, it's not so crazy as to be a clear mistake.
Which is why I said farming wheat in such a way that it is separated from the market aka not harvesting it, would have been a useful but different argument.
That's exactly what I said. I was refuting the analogy above about CPUs. It had nothing to do with feeding the wheat to animals. It was simply because his growing of wheat affected how much wheat he would buy from the market.
How he used it has little impact, but the fact he used it does. If he planted but did not harvest wheat then there would have been no impact on the market. The fact he used it implied there was a connection to the market.
Actually, the easiest error to spot is you misquoting the Constitution as referencing "interstate commerce." It says nothing of the sort.
"Among" has a broader meaning than "between," and "among" is the word the Constitution uses.
"Among" has a broader meaning than "between," and "among" is the word the Constitution uses.
The linked article is about errors in facts that were part of the Court's decision making process.
The criticism you are making is about how the Court interpreted the law, which is a fundamentally different sort of error.
There are multiple theories of constitutional interpretation, and there is no broad consensus among Supreme Court Justices for which to use . Only some of them involve trying to discern the authors' intent.
In Wickard, I can't find any reference to the intent of the authors of the Constitution, so I don't believe this is a case of a factual error.
Note that I'm not disagreeing with your conclusion.
The criticism you are making is about how the Court interpreted the law, which is a fundamentally different sort of error.
There are multiple theories of constitutional interpretation, and there is no broad consensus among Supreme Court Justices for which to use . Only some of them involve trying to discern the authors' intent.
In Wickard, I can't find any reference to the intent of the authors of the Constitution, so I don't believe this is a case of a factual error.
Note that I'm not disagreeing with your conclusion.
It was surprising to me to see "commerce" alluded to in the possible charges against Weinstein in Utah, go figure.
http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-co...
http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-co...
Really interesting.
The relevant bits for people who don't want to click:
>Utah, like a number of other states, has a provision that stops the clock on the statute of limitations whenever the potential defendant is out of the state. In legal terminology, stopping the clock is referred to as “tolling” the statute of limitations.
>Weinstein was out of the state of Utah for most of the 1997-2008 period, since he presumably visited the state usually just for Sundance. That would probably amount to less than two weeks a year in state. While he was out of the state, the statute of limitations clock would have been paused.
>Is absentee tolling against a easily locatable defendant constitutional? Maybe not. The Constitution’s Commerce Clause — not usually referenced in criminal cases — might provide the basis for a challenge. Indeed, the U.S. Supreme Court has held that civil absentee tolling placed an undue burden on interstate commerce — and therefore violated the Commerce Clause — when applied against an out-of-state corporation that could have been sued before the statute of limitations ran out.
>Lower courts have extended the ruling to also protect out-of-state individuals from tardy civil suit... Criminal law may be a different matter.
>“I am not sure whether the Commerce Clause analysis would apply the same way to a criminal, as opposed to a civil, statute of limitations,” said University of San Diego law professor Walter Heiser, who has written on civil absentee tolling. “A State’s interests in deterring and punishing criminal conduct may well outweigh any concerns about the effect on interstate commerce.”
>Yet, in a 1941 case, the U.S. Supreme Court did indeed use the Commerce Clause to invalidate a California criminal law, an “anti-Okie” statute that barred relocation of indigents into the state. However, that crime was inherently interstate, whereas rape is not. But Weinstein’s trips to Utah were for business purposes; he was engaged in interstate commerce. That’s a lot of “on the one hand” and “on the other hand.”
>Yet another Supreme Court precedent is adverse to Weinstein, a 2000 case that struck down portions of the federal Violence Against Women Act. The Court held that the “non-economic, criminal nature” of such violence took such assaults outside the ambit of the Commerce Clause. That narrow view ignores the economic aspects that many say is inherent in all oppression of women but, ironically, could mean that absentee tolling would survive and Weinstein would lose.
>Or a court might be swayed by the intertwined nature of Weinstein’s economic and alleged criminal activity. After all, his alleged victims and his Sundance visits were work-related. A court might decide that under those circumstances, the Commerce Clause could indeed come into play and hand Weinstein a win.
The relevant bits for people who don't want to click:
>Utah, like a number of other states, has a provision that stops the clock on the statute of limitations whenever the potential defendant is out of the state. In legal terminology, stopping the clock is referred to as “tolling” the statute of limitations.
>Weinstein was out of the state of Utah for most of the 1997-2008 period, since he presumably visited the state usually just for Sundance. That would probably amount to less than two weeks a year in state. While he was out of the state, the statute of limitations clock would have been paused.
>Is absentee tolling against a easily locatable defendant constitutional? Maybe not. The Constitution’s Commerce Clause — not usually referenced in criminal cases — might provide the basis for a challenge. Indeed, the U.S. Supreme Court has held that civil absentee tolling placed an undue burden on interstate commerce — and therefore violated the Commerce Clause — when applied against an out-of-state corporation that could have been sued before the statute of limitations ran out.
>Lower courts have extended the ruling to also protect out-of-state individuals from tardy civil suit... Criminal law may be a different matter.
>“I am not sure whether the Commerce Clause analysis would apply the same way to a criminal, as opposed to a civil, statute of limitations,” said University of San Diego law professor Walter Heiser, who has written on civil absentee tolling. “A State’s interests in deterring and punishing criminal conduct may well outweigh any concerns about the effect on interstate commerce.”
>Yet, in a 1941 case, the U.S. Supreme Court did indeed use the Commerce Clause to invalidate a California criminal law, an “anti-Okie” statute that barred relocation of indigents into the state. However, that crime was inherently interstate, whereas rape is not. But Weinstein’s trips to Utah were for business purposes; he was engaged in interstate commerce. That’s a lot of “on the one hand” and “on the other hand.”
>Yet another Supreme Court precedent is adverse to Weinstein, a 2000 case that struck down portions of the federal Violence Against Women Act. The Court held that the “non-economic, criminal nature” of such violence took such assaults outside the ambit of the Commerce Clause. That narrow view ignores the economic aspects that many say is inherent in all oppression of women but, ironically, could mean that absentee tolling would survive and Weinstein would lose.
>Or a court might be swayed by the intertwined nature of Weinstein’s economic and alleged criminal activity. After all, his alleged victims and his Sundance visits were work-related. A court might decide that under those circumstances, the Commerce Clause could indeed come into play and hand Weinstein a win.
Given the pre-election kerfuffle with judicial nominations, I'm floored that Roosevelt appointed eight judges to the Supreme Court. I wonder what the headlines were like around that time. Can you imagine the state of Twitter of Obama or Trump managed to pick all-but-one of the members of the SC?
It was a different time, and he was president for a very long period.
Nothing like that will ever happen again, in part for the reasons to which you refer.
Nothing like that will ever happen again, in part for the reasons to which you refer.
Laws of society are not the same as laws of physics. They'll be interpreted to be what the current culture commands.
Thomas Jefferson was on board with the notion: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind."
https://www.nps.gov/thje/learn/photosmultimedia/quotations.h...
They wrote a social contract that's obviously ripe for manipulation and abuse by the current powers that be. I see no reason to try and read the minds of dead men and opine for the past. Especially since I'm pretty sure they all wrote about fears to the effect of future America deifying them when they are but humble, fallible, humans.
Humans quit caring about the past because it's not relevant in future reality where things are much different. The inputs are all different.
Goodhart's law, man.
But by all means, keep believing in your religion that you appear to believe is failing you. I'm sure your support will make it better.
Thomas Jefferson was on board with the notion: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind."
https://www.nps.gov/thje/learn/photosmultimedia/quotations.h...
They wrote a social contract that's obviously ripe for manipulation and abuse by the current powers that be. I see no reason to try and read the minds of dead men and opine for the past. Especially since I'm pretty sure they all wrote about fears to the effect of future America deifying them when they are but humble, fallible, humans.
Humans quit caring about the past because it's not relevant in future reality where things are much different. The inputs are all different.
Goodhart's law, man.
But by all means, keep believing in your religion that you appear to believe is failing you. I'm sure your support will make it better.
One thing jumps out at me from the article beyond the main point. All of the cases listed have a ruling that was"conservative" except for one. The one exception is Arizona v. US, where the main ruling was "liberal" but left a portion of Arizona's law intact, which was definitely "conservative" friendly and liberals were unhappy that it remained intact.
It is implausible to me that there were no opinions pleasing to liberals that contained errors. Given the makeup of the court, it's possible that there just aren't very many liberal rulings, and none made it into the sample due to random chance. It's also possible that the liberal opinions were not examined and that the "moral force" of ProPublica's journalism is pushing to the left while trying to hide the bias from their reader.
There was a seventh error mentioned that was not covered in the article, and they mentioned that it would be the subject of a future article. Does anybody care to guess what direction the ruling will lean in that case?
Note: I'm making two comments on this thread since this is a completely separate point.
It is implausible to me that there were no opinions pleasing to liberals that contained errors. Given the makeup of the court, it's possible that there just aren't very many liberal rulings, and none made it into the sample due to random chance. It's also possible that the liberal opinions were not examined and that the "moral force" of ProPublica's journalism is pushing to the left while trying to hide the bias from their reader.
There was a seventh error mentioned that was not covered in the article, and they mentioned that it would be the subject of a future article. Does anybody care to guess what direction the ruling will lean in that case?
Note: I'm making two comments on this thread since this is a completely separate point.
I think the right way to go about this would be to find the "liberal errors". There are plenty of well-financed conservative organizations that could do that work.
I mean, they never claim that there is any kind of political bias, or that the cases they describe is some kind of random sample, they just note that there have been factual errors in the court opinions. My own guess is that the reporter noticed these errors in the process of researching cases for other articles, and thought it was interesting enough to write about.
Instead of completely baseless speculation about liberal conspiracies to suppress the truth, you could demonstrate your claim by finding similar errors in "liberal" rulings. What you find "implausible" is irrelevant.
I offer no comment the GP, but an example springs to mind for where where a "liberal" ruling was based on a factual error - US v Miller (1939)
The majority opinion stated:
> In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
In fact, "trench shotguns" were issued in WW1 and at the time of the ruling, which standard barrel lengths of ~20" - and were often shortened further in the field. Further, shotguns with barrels of <18" were standard issue elsewhere in the world and were used by US cavalry throughout the Civil War and into the Indian Wars in the latter part of the 19th Century.
The majority opinion stated:
> In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
In fact, "trench shotguns" were issued in WW1 and at the time of the ruling, which standard barrel lengths of ~20" - and were often shortened further in the field. Further, shotguns with barrels of <18" were standard issue elsewhere in the world and were used by US cavalry throughout the Civil War and into the Indian Wars in the latter part of the 19th Century.
The opinion states that there was an absence of evidence (ie, evidence presented in court, not evidence that might exist somewhere in the world.) It's the job of the litigants to produce the evidence, not the justices.
There were no litigants in Miller - the defendants didn't respond to notification and their attorney didn't attend the proceedings in DC. In fact, it's quite possible that they were dead.
They really need to rewrite the second amendment in a more precise fashion. How about bazookas or soon laser weapons? Are they ok? I am not trying to be funny. What's an arm?
At the time of the ratification, "arms" basically meant a weapon that could be carried by a soldier. The next larger class of weapons would be "ordnance", to include things like cannon and explosives.
It's also worth noting that the Constitution implicitly recognizes the civilian ownership of ordnance as well, through Article 1 Section 8: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" granting letters of marque wouldn't make sense if individuals did not possess suitably armed ships.
It's also worth noting that the Constitution implicitly recognizes the civilian ownership of ordnance as well, through Article 1 Section 8: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" granting letters of marque wouldn't make sense if individuals did not possess suitably armed ships.
A Stinger ground to air missile can easily be carried by a soldier so I assume that's OK. I have also spent considerable time carrying around an anti-tank missile. Heavy but very doable.
Any error that would be found in a HN-comment amount of time, effort, and care, would simply be rebutted by a dozen replies putting in a similar amount of time, effort, and care, viz, nearly none. Even putting aside the grotesquely asymmetrical effort you're calling for here, that wouldn't advance the conversation at all.
Citation: Nearly all the other subconversations going on already in this story's discussion.
Citation: Nearly all the other subconversations going on already in this story's discussion.
^^ is making an interesting observation, followed by a plausible hypothesis. This is not “baseless speculation”.
It is completely baseless speculation. It creates an unfounded implication of wrongdoing or subterfuge on the part of Pro Publica without any evidence.
This is a classic FUD tactic.
This is a classic FUD tactic.
Absolutely, you could just as easily speculate that Conservative judges are more willing to play fast and loose with facts to fit their purposes.
Either hypothesis is valid given the limited evidence investigated so far. What’s wrong with making a quick observation followed by a hypothesis?
Hypothesis without some evidence are quite literally baseless speculation; if there were evidence, it wouldn't be baseless.
There _was_ preliminary evidence for OP’s hypothesis.
No, there was his judgement of the results as partisan, that is not evidence. Thinking you see bias is not the same thing as finding evidence of bias.
His judgment of the results as partisan wasn’t evidence of anything except perhaps his own bias. That was his hypothesis based on his one observation.
Hypotheses are allowed to be biased as long as they’re tested before becoming anything more.
The evidence (however preliminary) was the fact that nearly all of Pro Publica’s cited rulings were in favor of conservatives.
Hypotheses are allowed to be biased as long as they’re tested before becoming anything more.
The evidence (however preliminary) was the fact that nearly all of Pro Publica’s cited rulings were in favor of conservatives.
> The evidence (however preliminary) was the fact that nearly all of Pro Publica’s cited rulings were in favor of conservatives.
I'd still call that opinion, not evidence. A conservative might say those rulings were in favor of reason, not partisan. See, an alternate opinion.
I'd still call that opinion, not evidence. A conservative might say those rulings were in favor of reason, not partisan. See, an alternate opinion.
You’re quibbling about words. If we can’t agree that one side favors a particular viewpoint over the other in a given civil case, any further discussion about the presence or absence of political bias in the ruling or selection of the ruling is impossible.
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Without something to back it up, it is baseless speculation.
It's an interesting point, and seems plausible, but I think actually finding some of those errors (i.e. doing some work) is the only way to settle it.
Many liberal legal scholars will admit that Roe v. Wade is in error, even if they agree with the outcome. Similarly, although many people view marriage equality as required by the equal protection clause, Justice Kennedy's opinion in Obergefell is not the most well-supported and well-researched opinion out there...
bkeroack(5)
This seems to be missing the point. The court doesn't make "incorrect" decisions because it cites incorrect facts, it makes decisions the reader finds incorrect and in some cases happens to cite incorrect facts in support of that. In the very first example, does anyone think that correcting Alito on the frequency of drug testing in the private sector would have changed his vote? No, he'd just have removed that sentence form his opinion and found the same way, because he doesn't personally find drug testing to be a violation of privacy in the way the plaintiffs do. That's not a factual decision.
The decisions are made, ultimately, out of personal conviction. If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you.
Courts are political entities and always will be.
The decisions are made, ultimately, out of personal conviction. If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you.
Courts are political entities and always will be.
And yet, judges -- and other people -- do in fact respond to argument, even if not as often as they would ideally. If you ignore this and pretend that they never do, you are still making a mistake.
Not in single cases they don't, at least not detectably. (Serious question: is there a story anywhere of a senior appelate judge with a tale about how they totally changed their long-held opinion after hearing a case? Don't think I've heard of one, though I'd love to read it if so.)
People change their opinions slowly and generally along with much larger shifts in public perception. In fact there was a fun psych result just recently that extra facts make people less likely to concede an argument, not more.
People change their opinions slowly and generally along with much larger shifts in public perception. In fact there was a fun psych result just recently that extra facts make people less likely to concede an argument, not more.
In essence, you're saying, 'They're not making mistakes. It's malice.' If your decision is based on incorrect data, you have no backing for that decision. It may be true to say that some judges are such partisan hacks that they would rule the way they did regardless of the information, but we should demand better.
>The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states.
>In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.
This cannot be viewed as acceptable. This cannot be viewed as, 'Oh, well, they would have found a reason to rule that way anyway.' SC judges are not your (general 'your') drunk uncle, who has a right to be a buffoon unless he's hurting someone. When SC judges are buffoons, they will absolutely cause damage.
>The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states.
>In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.
This cannot be viewed as acceptable. This cannot be viewed as, 'Oh, well, they would have found a reason to rule that way anyway.' SC judges are not your (general 'your') drunk uncle, who has a right to be a buffoon unless he's hurting someone. When SC judges are buffoons, they will absolutely cause damage.
> Courts are political entities and always will be.
That is true.
I've come to believe that the ultimate role of the Supreme Court (and not of the lower courts) is the prevention of civil war. The role is essentially that of emitting a ruling that will keep the country from splitting so badly that factions square off and start shooting at each other. They goofed that up rather badly once. Their role is to provide a non-violent venue to debate our deepest differences, and forge a consenus of acceptable compromise. If they fail, we fracture.
The role of the lower courts is to apply S.C. decisions uniformly.
That said, I get rather annoyed at the "living constitution" crowd that wants to use the S.C. to get us all to collectively act like the constitution says something different than the plain words on the paper. If you don't like what it says, amend it for heaven's sake. Even the authors put forth a package of amendments before the ink was barely dry on the original. The way to change the constitution is to amend it, not re-re-re-interpret it.
That is true.
I've come to believe that the ultimate role of the Supreme Court (and not of the lower courts) is the prevention of civil war. The role is essentially that of emitting a ruling that will keep the country from splitting so badly that factions square off and start shooting at each other. They goofed that up rather badly once. Their role is to provide a non-violent venue to debate our deepest differences, and forge a consenus of acceptable compromise. If they fail, we fracture.
The role of the lower courts is to apply S.C. decisions uniformly.
That said, I get rather annoyed at the "living constitution" crowd that wants to use the S.C. to get us all to collectively act like the constitution says something different than the plain words on the paper. If you don't like what it says, amend it for heaven's sake. Even the authors put forth a package of amendments before the ink was barely dry on the original. The way to change the constitution is to amend it, not re-re-re-interpret it.
I think the problem might be that plain words are still really spongy? A simple statement like "no vehicles allowed on public grass" isn't actually all that simple.
What happens when the words of the constitution apply to 95% of a given situation? 85%? 10%? Is it better to amend the constitution every time there's an edge case?
A lot of time you can just put a catchall textarea to cover all the rest of your input edge cases. For the law, that textarea is where all the action happens.
What happens when the words of the constitution apply to 95% of a given situation? 85%? 10%? Is it better to amend the constitution every time there's an edge case?
A lot of time you can just put a catchall textarea to cover all the rest of your input edge cases. For the law, that textarea is where all the action happens.
>I think the problem might be that plain words are still really spongy?
Many people make the argument that that's not a bug, its an intentional feature. As in, the Constitution was left open to interpretation on purpose.
You can also make the argument that even if it was an intentional feature, we've taken it too far.
Many people make the argument that that's not a bug, its an intentional feature. As in, the Constitution was left open to interpretation on purpose.
You can also make the argument that even if it was an intentional feature, we've taken it too far.
The founders did leave a mechanism for amending the constitution. It is very difficult to use.
Do you think they underestimated the difficult of amending the Constitution using the process they suggested? Or maybe they didn't foresee having SCOTUS be the ultimate arbiters of the Constitution?
Do you think they underestimated the difficult of amending the Constitution using the process they suggested? Or maybe they didn't foresee having SCOTUS be the ultimate arbiters of the Constitution?
> to get us all to collectively act like the constitution says something different than the plain words on the paper.
That is itself an interpretation; those words aren't nearly as plain as you're pretending they are, they're intentionally vague, that's the only reason the constitution is so short. Legalese developed precisely because it's not at all simple to write something that's plain, clear, and not open to interpretation.
That is itself an interpretation; those words aren't nearly as plain as you're pretending they are, they're intentionally vague, that's the only reason the constitution is so short. Legalese developed precisely because it's not at all simple to write something that's plain, clear, and not open to interpretation.
Your position presumes facts aren't part of how people arrive at their convictions to begin with. If you feed someone bad facts, they're going to come to bad conclusions, how can you deny this?
> If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you.
I want judges who will change their minds based on evidence; who will apply logic and reason, not judges who vote based on uninformed personal convictions.
> If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you.
I want judges who will change their minds based on evidence; who will apply logic and reason, not judges who vote based on uninformed personal convictions.
So, you want judges that aren't human. Based on my experience, most convictions are not based on facts. If you want fact-based convictions I think we need to look at replacing human judges with AI judges.
I reject your notion that humans aren't swayed by facts; categorically. You live in a world that exists because people are swayed by facts. Humans are swayed by facts, the best ones for sure, certainly not all. If you're not swayed by facts, you will not make a good judge and don't belong on the court.
There are some great episodes of More Perfect (Radiolab's spinoff about the supreme court) on this topic:
https://play.radiopublic.com/radiolab-presents-more-perfect-...
https://play.radiopublic.com/radiolab-presents-more-perfect-...
Justice is an outcome.
Law is a process.
Law is a process.
What does that mean?
"We are not final because we are infallible, but we are infallible only because we are final."
- Justice Robert H. Jackson
- Justice Robert H. Jackson
1. The NASA v. Nelson opinion wrote that 88% of private employers conduct background checks of their employees. The 88% number wasn't in any of the briefs filed with the court, but they did find in the briefs that 74% of employers surveyed conduct criminal background checks. Okay, the court got the number wrong, but clearly background checks are a common practice among private employers. Nothing damages the decision.
2. In the US v. Windsor the opinion states that most states permit first cousins to marry. Most states would imply that >=26 states permit first cousins to marry. In fact, 19 states permit first cousins to marry (restrictions are common). So the court got that fact wrong, but 19 states is still a sizeable portion of the states, indicating that permitting first cousins to marry is not uncommon (first cousins actually getting married is uncommon though). So again, the general point still stands.
While I think it would be nice to have fact checkers, the ability for opposing parties to file briefs with their own correct numbers is a pretty good deterrence against people lying to the court. I think in a lot of these cases, the opposing parties thought, "well, that number isn't right, but I'm not going to try the justices' patience by making them change that 11 to a 12."