Law & Court News

Trump’s possible Supreme Court nominees: The faith factor

Potential Supreme Court nominees Thomas Hardiman, from left, Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge.

(RNS) — The four judges have been on the legal world’s radar since they appeared in November on a White House list of potential Supreme Court nominees. And they are all “really incredible people in so many different ways, academically and in every other way,” according to President Trump.

The president is expected to nominate one of them Monday (July 9) to replace Supreme Court Justice Anthony Kennedy, who announced his retirement last week (June 27).


RELATED: 5 faith facts on Trump’s Supreme Court pick, Neil Gorsuch


For his first pick for the high court, Trump thrilled his conservative and evangelical Christian supporters by selecting Neil Gorsuch, an adherent of the “strict constructionist” philosophy espoused by the justice Gorsuch was replacing, the late Antonin Scalia. For many conservative evangelicals, the Supreme Court is the reason they voted for a president who doesn’t always talk and act like a person who has been called “God’s chosen candidate.”

Now the president seems to be angling to hit another “home run” (in Trump’s own words) for his base. The next justice appointed to the court will almost certainly decide cases on access to abortion, marriage and LGBT rights, and the place of religion in public life — and possibly, some observers say, revisit the landmark abortion case Roe v. Wade.


RELATED: Justice Kennedy, key vote on abortion and gay marriage, quits Supreme Court


With these issues in mind, activists,  politicians and court prognosticators are studying the cases and faith influences of the most likely nominees among the seven contenders the president reportedly has interviewed.

Here is a list of the four possible nominees widely considered to be front-runners and what they have said and done with regard to religion.

Amy Coney Barrett

“The dogma lives loudly within” Amy Coney Barrett.

Judge Amy Coney Barrett in 2017.  (University of Notre Dame Law School via AP)

That’s according to Democratic Sen. Dianne Feinstein, who expressed concern about how Barrett’s Roman Catholic faith might impact her judicial decisions as Barrett, now 46, was on her way to being confirmed as a 7th U.S. Circuit Court of Appeals judge last year. The line quickly became the right’s equivalent of “Nevertheless, she persisted.”

Never mind that, as an appeals court judge, Barrett would not be called upon to remake Roe v. Wade: Feinstein seemed to be looking forward to Barrett’s possible ascension to the Supreme Court. She wasn’t alone. Several organizations, including Catholics for Choice and the Secular Coalition for America opposed her nomination to the appeals court because they said she had spoken “disapprovingly” of Roe and signed onto a statement calling the Affordable Care Act’s mandate for insurance coverage for contraceptives an “assault on religious liberty.”

Raised in Louisiana, Barrett is a former professor of law at the University of Notre Dame, where she earned her law degree. She also clerked for Scalia, a fellow Catholic.

She directly commented on the issue of capital punishment, and on religion as an influence on judges, in a 1998 law review article.

“Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” she wrote with her co-author, John H. Garvey (now president of the Catholic University of America in Washington, D.C.)

The article, which was grappling with the ramifications of Pope John Paul II’s condemnation of the death penalty in most cases, admits that the question is complicated. It concludes, “Judges cannot — nor should they try to — align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”

The article also cites Article VI of the Constitution to argue, “It seems plainly inconsistent … to suggest that Catholics, simply by virtue of being Catholics, are disqualified from serving as judges.”


RELATED: Who are Catholic charismatics and what’s a covenant community?


Barrett, as has been reported, is no ordinary Catholic. She has been associated with People of Praise, a group founded in 1971 that is part of the charismatic renewal movement. People of Praise has raised red flags for many with rumors of a lifelong oath of loyalty and a system by which members are paired with other members to help them stay faithful to the group’s tenets. Those partners for female members were called — until the word took on dystopian associations — “handmaids.” One anthropologist who has studied the group recently assured Slate it’s not a cult.

Brett Kavanaugh

Brett Kavanaugh appears before the Senate Judiciary Committee on Capitol Hill in Washington on April 26, 2004. (AP Photo/Dennis Cook)

Like Barrett, Brett Kavanaugh, 53, is Catholic. The judge in the U.S. Court of Appeals for the District of Columbia Circuit is a regular lector at his church, the Shrine of the Most Blessed Sacrament in Washington, D.C., near his Maryland home. He volunteers for the St. Maria’s Meals program at Catholic Charities, according to his biography on the court website and has tutored at the Washington Jesuit Academy.

Unlike Barrett, who has served on the bench for less than a year, Kavanaugh has a long history of judicial decisions behind him. Nominated by President George W. Bush, whom he served as a White House lawyer, Kavanaugh has spent 12 years as a judge on the D.C. Circuit.

Several of those decisions deal with issues important to religious conservatives, including abortion rights. Last year, Kavanaugh dissented on a controversial decision that allowed an undocumented teenager who had crossed from Mexico into Texas as an unaccompanied minor to get an abortion while living in a government-funded shelter. The decision, he wrote, was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

But Kavanaugh’s ruling was less restrictive than other judges in the case, giving some cause to worry that he is too pragmatic. Similarly, these voters favor his dissent opposing the Affordable Care Act’s birth control mandate, but worry that it conceded that the government has an interest in providing coverage for contraceptives, but that “the government can achieve it in other ways,” according to SCOTUSblog.


RELATED: History of religion on Supreme Court in one graph


Replacing Kennedy, for whom he clerked, Kavanaugh, like Barrett, would preserve the current religious ratio on the court, which includes five Catholic justices, three Jewish justices and Gorsuch, who was raised Catholic but now attends an Episcopal church.

Raymond Kethledge

Judge Raymond Kethledge. Photo courtesy of Creative Commons

Raymond Kethledge, a judge for the 6th U.S. Circuit Court of Appeals, would be the sole evangelical Christian on the Supreme Court. Kethledge, 51, also would break the Ivy League mold (as would Barrett). Raised in Michigan, he earned his undergraduate and law degrees from the University of Michigan. He currently lives in the Great Lakes State and has said he writes his opinions in a rustic barn office overlooking Lake Huron with no internet, no cell phone reception and a wood stove for heat.

Among his decisions is Acosta v. Cathedral Buffet, Inc., which concerned a buffet restaurant owned and operated by Grace Cathedral Church, whose president is Ohio televangelist Ernest Angley. Angley was accustomed to recruiting volunteers from the pulpit to work at the buffet, a for-profit enterprise — a practice the Labor Department said violated minimum wage requirements.

The appeals court found that the volunteers weren’t underpaid because they didn’t expect to be: rather, they were happy to do “God’s work.” “The Department seeks to regulate spiritual conduct qua spiritual conduct, and to impose significant liability as a result,” Kethledge wrote in his concurrence with the decision. He cautioned that no government bureaucrat can make spiritual judgments about what motivated the churchgoers to do the work.

“The coercion that matters is not anything that Rev. Angley said to his congregation on a Sunday morning,” Kethledge wrote. “What matters, rather, is the Department’s own attempt to coerce religious leaders — of any faith — not to exhort their followers on spiritual grounds to engage in conduct that is otherwise legal.”

He ended with the words, “The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.” That seems to be a reference to Jesus’ words in Mark 12:17: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”

Kethledge also co-wrote a book on leadership, “Lead Yourself First: Inspiring Leadership through Solitude,” about the importance of reflection that draws on the examples of many leaders, including religious figures like the Rev. Martin Luther King Jr. and Pope John Paul II.

Like Kavanaugh, Kethledge also clerked for Kennedy. He practiced law for 15 years, which he has described as a  “service business.”

Thomas Hardiman

Judge Thomas Hardiman smiles during a meeting in Philadelphia on March 8, 2017. (AP Photo/Matt Slocum)

This is the second time Hardiman, 53, has made the shortlist for the Supreme Court. A judge on the 3rd U.S. Circuit Court in Philadelphia, he was runner-up last year when Trump ultimately chose Gorsuch to fill Scalia’s seat.

Hardiman, a Catholic, attended two of the most prominent Catholic universities in the U.S.: Notre Dame University for his undergraduate studies and Georgetown University for law school. Like Barrett and Kethledge, he’d bring some educational diversity to a court full of Ivy League graduates, and Trump reportedly finds his personal story compelling: He was the first in his family to graduate college, which he funded in part by driving a taxi.

Hardiman hasn’t ruled on any major abortion cases, though in 2010 he did join an opinion overturning the conviction of a man who was arrested while leading an anti-abortion demonstration near the Liberty Bell in Philadelphia. And earlier this year, he was one of three judges who allowed the Little Sisters of the Poor to join the Trump administration in a case regarding the contraception mandate of the Affordable Care Act.

But he has ruled on other issues important to Christian conservatives, including some religious freedom cases.

In several cases in which inmates complained prison officials kept them from practicing their faiths, he generally ruled against the inmates.

In a 2008 case, he dissented with the court’s decision against an evangelical Christian family in which the mother was invited to her son’s kindergarten class to read his favorite book to students as part of his “All About Me” presentation and then prevented from doing so when the child chose the Bible. Hardiman wrote that the school district went “too far in this case in limiting participation in ‘All About Me’ week to nonreligious perspectives,” and may even have “improperly discriminated between religious perspectives,” as a parent previously had been invited to the classroom to discuss Jewish holidays.

In a second school-related case argued in 2012 in which a fifth-grader was not allowed to hand out flyers to her classmates inviting them to a Christmas party at her church, Hardiman joined a panel siding with the student and affirming a lower court decision ruling against a school district.

About the author

Emily McFarlan Miller

Emily McFarlan Miller is a national reporter for RNS based in Chicago. She covers evangelical and mainline Protestant Christianity.

Add Comment

Click here to post a comment

  • The “faith factor” you can count on is that each of these will be ruling for incorporated entities and against both individuals and the environment in all of the “business” cases for the rest of their lives on the bench. We have devolved lately to thinking that the Supreme Court does not do anything except abortion-related and LGBT-related cases. Hardly. People are losing BIGTIME on everything going forward, and the church folks are just delighted to be the operative instrument of this heist on every subject. Maybe your present 10-year-olds will have this figured out by the time they are about 30.

  • What a horrible reality this is. Without adding new Justices, Justice itself is screwed for the next 30 years at least. If nothing else this proves voting has consequences and to the some 80,000-odd non-voters In Wisconsin, Pennsylvania, and Michigan, it must be said, “You did this!” What a freakin’ mess this is. “The Handmaid’s Tale” has been appropriated as a policy paper.

  • What’s amusing here is that you liberals are so worried that the future (Christian) justice is going to legislate from the bench the way liberal justices do (based upon their personal politics); that you are running around with your hair on fire.
    The fact of the matter is that we don’t exactly know what we will get.
    You can scream and fear monger all you want, but your belief that the constitution is a living, breathing document should justifiably bite you all in the ass.
    What we should all hope for is an originalist who will stick to the principles as written in the constitution and bill of rights. That way, rulings will be made impartially according to the letter of the law as intended – not according to public opinion nor personal political/religious beliefs.

  • It is always pleasant to get a big dose of science fiction first thing in the morning with my coffee.

  • Scalia was definitely an orginalist if one looks at his body of work, however, in being one he reduced approximately one half of the total population to being “victims” of dogma driven state legislatures. I’m talking states’ rights. Out would go Roe v. Wade, Griswold v. Connecticut, and the right to privacy in the bedroom. Look at the GOP driven states subjecting residents to the poorly hidden dictates of Christian hegemony…Kentucky, Tennessee, Texas, Georgia, Alabama, Mississippi…the south as a whole.
    And Citizens United? McConnell is been disastrous for my state and his back room chicanery in this has placed the billionaire donor class into a much higher caste than the untouchable working stiff because their money now speaks louder. He has been bought in the past and now it’s legal.
    This is merely my centrist take though. Four generations of my family benefited from various amendments to the constitution and I’ll always view it as a living document. It’s also my view that democracy creates tyrants but that’s another story for another day.
    Cheers! *sips bourbon* Yeah, I’m day (morning) drinking, don’t hate.

  • Better the hegemony of “dogma-driven” state legislatures, which can be voted out at regular intervals, to the hegemony of a handful of dogma-driven judges who can’t be.

    That IS the constitutional plan, after all.

  • The question is not whether any portion of the population are “victims” of state legislatures.

    The question is where did the Constitution itself leave the power?

    I’m talking the plain English language in which the Constitution is written.

    Don’t care for Citizens United?

    Get off thy duff and organize a drive for an amendment.

    What you’re advocating is not centrist take though.

    What you’re advocating is simply disregarding the written Constitution to get the result you desire.

  • Nope. And my “duff” is quite active within my state as my vote isn’t nullified at this level. But since I’m not of the donor caste the struggle is greater than it should be, as are so many more like me.

  • No, the Christian hegemony of southern state legislatures is quite toxic as they often eat their own, pick their pockets, and sell them to the highest bidder. Look how long it took this region to shift from a bible driven caste system. It’s still writhing, struggling to regain a foothold in the public square for the purpose of dictating policy.

  • “a big dose of science fiction first thing in the morning”

    That is the advantage of waking up in BobWorld.

  • The people of the various states have differing values, interests and priorities; they decide what is and isn’t “toxic” for themselves. The framers of the constitution recognized this, which is why they left everything to them except what was expressly doled out to the feds. Had it not been so, a constitution would never have been agreed upon.

  • Bottom line: democracy sucks when you don’t like your fellow citizens.

    Consider moving to California or Massachusetts; they’re more your kin.

  • Just so we all are aware, the posts by the disqus poster of many
    names currently using the name “Bob Arnzen”, and more appropriately
    referred to with a concatenation of some of his many names, BobbyJoJack
    Arnzen Carioca, are never accurate or honest, and are always tainted by his
    severe religious delusions and his egomaniacal mental disorder.

  • Just so you are aware, the posts by the disqus poster of many
    names currently using the name “Bob Arnzen”, and more appropriately
    referred to with a concatenation of some of his many names, BobbyJoJack
    Arnzen Carioca, are never accurate, and are always tainted by his
    severe religious delusions and his egomaniacal mental disorder.

  • IF they want to use religion as the basis for our laws,then they are completely unqualified.

  • I’ll do the Trumpian Mathematics for ya. SCOTUS is already “five Catholic justices, three Jewish justices and … an Episcopal church [tither]” – but wait, still no Evangelical? Well there you have it, then. Since “Raymond Kethledge … would be the sole evangelical Christian on the Supreme Court”, and Trump owes his presidency to The Evangelical 81%, Kethledge is already the sure thing. Remember now:

    Everybody Loves Raymond.

    Or they will somehow or other.

    And I wasn’t talking about Ray Romano’s TV character, either. I’m talking about the sure thing that is the Trumpian Mathematics!

  • But “IF they want to use [atheism] as the basis for our laws,then they are completely [de]unqualified”?

    Behold what wisdom!

  • “Hair on fire … should justifiably bite … in the ass.”

    And there I have it: The Quote of the Day. For I must have one every day.

  • The Handmaid’s Tale is a dystopian novel by Margaret Atwood – no American, she – originally published in 1985, after Pierre Trudeau of the Liberal Party of Canada returned to power as that country’s prime minister from March 3, 1980 until June 30, 1984.

    Obviously, and ever yet again, you’re atheistically confused, this time, though, courtesy of the TV series of the same name, bought from that Canadian celebrity, then colonized I mean Americanized by Bruce Miller.

  • Nope. Atheism isn’t at odds with our first amendment nor do you see atheists seeking to use public power to engage in discrimination. Conservative Christians are another story.

  • And if states want to engage in discrimination against certain classes of people, as the founders undoubtedly didn’t mind, that’s OK. After all they didn’t come up with the 14th amendment or the notion of equal protection under the law. /s

    Thank you for making clear the whole point of “constitution originalism” is to attack civil liberties.

  • I know. But you’re not E.

    More power to secular politicians, I mean it. (That’s what I’ve been saying at nonreligious blogs at patheos(dot)com.) To you, that is, I do mean what I say. Not to E, though, coz me no like E.

  • The Founders were silent on “classes of people”.

    The only discrimination issue in the modern sense they described was in banning religious tests.

    If the 14th amendment does not prohibit something you wish it did, the solution is to propose an amendment, not get five justices to back into amending the Constitution by clever sophistry and semantic gymnastics.

    Originalism’s point is to ensure judges apply laws as written to facts duly ascertained rather than writing new laws ad hoc.

  • Of course we see atheists seeking to use public power to engage in discrimination.

    One need only stop by the Freedom From Religion Foundation’s website to gather handfuls of silly, groundless, and ultimately unsuccessful lawsuits to prevent believers from participating in American public life.

  • Atheism is simply the lack of belief in a god. That’s it. It’s neutral. And I don’t see any atheists demanding that we put signs on schools that say “God does not exist”. You are such a hypocrite.

    What part of the NO establishment of religion clause do you not understand?

  • The founders you speak of specifically warned against tyranny by the majority.

    Stop imposing your Christian beliefs on others.

  • You mean like you Christians do, every time you try to force schools to display the words “In God We Trust”?

  • They came up with notion of equal protection of laws in order to prevent having one code for whites and another for blacks, aka “black codes.”

    If you wish to have gender-based classifications receive the same treatment, you should push for the resurrection of the ERA — although I suspect some states that would ratify it as it was originally intended would NOT do so now, knowing that it would be used as a lawsuit-generator by the perpetually dissatisfied alphabet club.

  • I dare you to state now, then, your rebuttal to these two atheists’ debunking of your myth that “atheism is simply the lack of belief in a god. That’s it. It’s neutral.” No cheating: you can’t go online chatting with your 6th Grade atheist homeroom teacher about it. You’re on your own, without god, godless & all that. GO. 2000 words or less, preferred.

    “Unbelief … is rarely ‘on its own.’ … With the rise of evolutionary theory, atheism ‘moved from simple negation of religious beliefs to an affirmation of liberalism, scientific rationality, and the legitimacy of the institutions and methodology of modern science—and thus from religious criticism to a complete ideological system.’ Atheism, then, is ‘a form of belief—rather than a lack of belief—shaped by its socio-historical context’ and ‘inextricably bound up with’ a plethora of principles that emerged from the Enlightenment.”

    Source: David Hoelscher, “New Atheism, Worse Than You Think”, CounterPunch, January 29, 2016, reviewing Stephen LeDrew, The Evolution of Atheism: The Politics of a Modern Movement, Oxford University Press, 2015.

  • Did too. 2nd hand paperback. My beloved read it too. Book review: bbbbbooooorrrrriiiiinnnnnggggg

    My 1st and I promise you my last book by Margaret Atwood.

    Check out the original flick version, ‘yo. “The 1990 film The Handmaid’s Tale was based on a screenplay by Harold Pinter and directed by Volker Schlöndorff. It stars Natasha Richardson as Offred, Faye Dunaway as Serena Joy, and Robert Duvall as The Commander (Fred).” AND CHARLOTTE N/A AS FOUL-MOUTHED NOBODY.

    Ha ha made you look!

  • No, HpO. Christians are all zeroes, all the time. You lose, as you always do.

    Christians are deluded and not very smart in general. That’s all there is to it.

    You suck s​hit. Tough for you.

  • According to my mentor, Daniel Fincke, an atheist himself (cf. “Why I Criticize My Fellow Atheists”, Camels with Hammers, June 17, 2013):

    Atheists are “just looking for flaws in theism or religious people’s behavior out of some animus … prejudice or malice. … Some atheists really do seem to have gotten into this movement to indulge in their feelings of superiority to those they pitilessly disparage as ‘stupid’ or wicked. … They are just in this to throw rocks at the ‘retards’. I have no sympathies with such people and am ashamed that they’re associated with me.”

    AW SNAP Bob Cariozen!

    Christian 4 : 0 Atheist

  • No, HpO. Christians are all zeroes, all the time. You lose, as you always do.

    Christians are deluded and not very smart in general. That’s all there is to it. Case closed.

  • False as usual from HpO.

    As the great quote says, Atheism is no more a belief than not collecting stamps is a hobby.

  • What is this scoreboard thing you’ve got going on? Do you think that reproductive autonomy is a game?

  • Actually, it’s C=5 and A=0 because Atheism itself is a Zero.

    God loves and protects you atheists all the time, giving you free blessings while you give Him the middle finger.

    But atheism itself is such an empty rational bust these days. I can’t even believe how far it”s fallen.Total public confusion over “atheist/agnostic.” The embarrassing refusal of nearly half the “Nones” to buy atheism. Atheists openly stealing basic Christian concepts like “Church”, and filching Christian rational frameworks,, just to sell their scraggly atheism at all.

    (Side Note for another poster:
    Why are you still an atheist, Jim Johnson? Ditch all those guys, declare yourself “Uncommitted” or “None”, and quietly leave the door open to see if God can work things out.)

  • Okay, I’ll bite. I don’t know if it’s Freud, Jung, Skinner, or Whatnot, but you seem to have this psychological fixation on the Virgin Birth (which is a true supernatural historical event, by the way.)

    Now then, what’s goin’ on around here? Why do you hate the Virgin Birth? (Or do you just hate the Baby, hmm?)

  • “true supernatural historical event,” my a$$. Stop spreading lies for attention.

  • Religious beliefs are just beliefs when you strip away the supernatural. They are entitled to those beliefs and to allow them to influence. The only conflict is when some allows personal beliefs ( of any kind) to override what they know to be the right decision based on the law.

  • And yet it has been the greatest curb on the excesses of state and local power to attack the rights of others. Making it one of the most important parts of the constitution for the rights of the individual. Also Tthe exact reason we do not chain ourselves to pretending to divine the thought processes and intentions of legislators from centuries ago. (When in reality you are just making it up and only for the interests of the powerful and corporations)

    You can’t handwave the letter of the law with such terrible excuses. But thanks for confirming exActly how vacant and pointless the pretension of “constitution originalism” is. It’s just excuses to attack civil liberties.

  • No one has to “pretend to divine” anybody’s thought processes. We know exactly what the framers and the ratifiers of the 14th Amendment intended by it because the debates surrounding it are still around for anyone to peruse. And the SCOTUS of that generation spoke to the 14th’s intended purpose as well.

    Before you can attack “rights” in a way that presents a federal question you have to have federally recognized rights to begin with. If the constitution doesn’t give the subject matter to the feds, there is nothing for the feds to defend.

  • Of course nobody divines the thought process of our founders, it’s all made up nonsense to get to a specifically partisan end point. Generally involving attacking individual rights in favor of exerting some kind of due privilege. Pretending the practice of law is like Bible Study.

    Pretending authorial intent allows one to ignore or contradict plain language. Much like how conservative Christians make end runs around any Biblical directive towards altruism or civil behavior towards others.

    Hooey to pretend we need to be bound by the thought processes and beliefs of a society over a century ago. Excuses to avoid the letter of the law and workable interpretations by imputing alleged intentions.

    We know the 14th amendment was not written with as narrow a focus as you claimed. If they wanted it so, they would have drafted it that way. Instead they used open ended and purposefully vague language to leave interpretations to the changes society may bring. To employ general concepts as opposed to ossified restrictive implementation.

    “Constitution Originalism” has always been a crock. A,roundabout way to get to a conservative goal regardless of good faith reasoning, principles or even logical consistency. One need only see the arbitrary and contradictory way its employed. (Scalia on Smith v. Employment Div. and Hobby Lobby bring the most egregious examples)

  • Of course if nobody divines the thought process of our founders, it’s an absolutely wonderful idea to stick the Constitution as written. That was, after all, the entire point of having a written Constitution.

    “A Living Constitution” has always been a crock, a roundabout way to get to avoid a written Constitution and fabricate new and different “rights” and obligations out of thin air (Blackmun in Roe v Wade and Kennedy in Obregefell v Hodges being among the most egregious examples).

  • We should not chain ourselves to pretending to divine the thought processes and intentions of legislators from centuries ago.

    We have their plain words in the very language we speak.

    That should be good enough.

  • –it’s all made up nonsense to get to a specifically partisan end point– Project much, Einstein? You’ve just described judicial legislation to a T.

    –Hooey to pretend we need to be bound by the thought processes and beliefs of a society over a century ago– We don’t have to be bound by them, Einstein. The constitution contains a clearly delineated process for changing it. Why do you hate it so much?

    And if the 14th Amendment were intended to address gender, Einstein, it would not have contained gender-specific language excluding women from the population counted for representative apportionment. That was done intentionally.

    Absolute gender equality is something the constitution simply does not address and therefore is beyond the federal pale. The people never voted for it. When given the opportunity to do so, they declined it. Stop whining and get the ERA back up for ratification — if you haters haven’t already spoiled it for everybody, that is.

  • Indeed. As Tater would call it, “making stuff up to get to a specifically partisan endpoint.” ?

  • I’m talking to Christians, who still seem to think that gay and trans rights are up for debate.

  • Not at all. What you call “judicial legislation” is really how the court has operated for over 200 years. It is a nonsense blanket term to describe any decision you didn’t like but had no argument on the merits worth a damn. Its telling that it is only employed by conservatives and only about issues referring to civil liberties. In reality it is the role created for the Judiciary for the given function of resolving real world disputes in light of constitutional interpretation. You simply argue for blanket deference to the legislature on the issues you like. Showing no regard for the purpose of checks and balances within the system.

    Whenever a conservative wants to support something rather onerous and malicious like discrimination, Christian privilege, or attack basic economic rights of people they attack the process of the judiciary itself. Because they have no good faith argument to make. You do not see such arguments used against rather ridiculous conservative leaning decisions. We have seen SCOTUS purposefully gutting existing laws created by majority vote in favor of conservatives in several areas (Voting Rights Act, RFRA, VAWA). Yet not a peep about “judicial activism” there. Because it is all really about ends not how one gets there.

    “The constitution contains a clearly delineated process for changing it. Why do you hate it so much?”

    Projection much? . I am not arguing against how they have functioned for well over 2 centuries. You are. I am upholding how they have acted before and the role they have. Nor am I stumping for a fictional return to “originalism” that never existed.

    “And if the 14th Amendment were intended to address gender, Einstein, it would not have contained gender-specific language excluding women from the population counted for representative apportionment.”

    Why would it need to be so limited and specific? No other rights within the Constitution are so clearly delineated. It was left open and vague for future interpretations.

    It takes a certain amount of cognitive dissonance to pretend we are legally bound by the intentions of a society which held people as chattel property and did not consider women to be citizens per se. But when one doesn’t really have an honest intellectual basis for their beliefs and actions, such as yours it is easy to claim such things.

    “if you haters haven’t already spoiled it for everybody, that is.”

    Interesting you use the term hater to describe others, when you have frequently supported discrimination under color of law. Again, projection much?

  • https://www.nationalreview.com/2018/06/anthony-kennedy-retirement-more-originalist-supreme-court/

    “Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: ‘There’s the law, and then there’s what’s right. My job is to do what’s right.’ Or, to put the philosophy in the words of one of my leftist law professors, ‘You determine the outcome first, then you do your reasoning.’ Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.”

    “I can think of few better summaries of Kennedy’s jurisprudence – especially in the cases that fired his passion the most – than this infamous passage from Planned Parenthood v. Casey: ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’ As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.”

  • Any justice that isn’t personally pro-choice is a threat to Roe v. Wade, regardless of their religious opinions, because the ruling has no real constitutional basis.

  • –What you call “judicial legislation” is really how the court has operated for over 200 years– No, Einstein, as previously stated judicial legislation has not been a problem for 200 years but only since roughly the Wilson era.

    –In reality it is the role created for the Judiciary for the given function of resolving real world disputes in light of constitutional interpretation– No, Einstein, the role of the Judiciary was to interpret duly-enacted laws in light of the written Constitution, not to fill in any blanks (aka “make stuff up”) with its own unaccountable preferences. That is the role of the legislature which is answerable to the people.

    We have seen SCOTUS purposefully gutting existing laws created by majority vote in favor of conservatives in several areas– They gutted laws created by majority CONGRESSIONAL vote which did not fall within ANY enumerated federal power found in the constitution. That is the duty of the judiciary. Learn what federalism is.

    — I am not arguing against how they have functioned for well over 2 centuries– They have functioned NOT well at all in this mode for only the last century. “Substantive” due process proved to be a nightmare, and the contradictory mess they have made of 1st Amendment jurisprudence is itself a scandal that the current SCOTUS would do well to simply acknowledge and start over. Why do you hate the lawfully prescribed amendment process but love the rule of oligarchs who do not represent us?

    –Why would it need to be so limited and specific?– In order to prevent it from being interpreted as addressing gender, of course, which is not what the people were voting for and still did not desire as late as the 1970s.

    –It was left open and vague for future interpretations– As already demonstrated, no, it was not.

    –It takes a certain amount of cognitive dissonance to pretend we are legally bound by the intentions of a society which held people as chattel property and did not consider women to be citizens per se– As I already stated, Einstein, we are not so bound. We have an amendment process to address that, the same amendment process which ended chattel slavery and gave women the right to vote. Why do you hate the amendment process?

  • “What you call ‘judicial legislation’ is really how the court has operated for over 200 years.”

    Obviously you never actually read the Dredd Scott decision.

    Those were the days when the law was the law and chips fell where they might, even if wildly unpopular.

    The change took place in three steps:

    – the Wilson presidency, first baby steps

    – Frank Delano Roosevelt, with a threat of court packing expanded “interest commerce” beyond all reason and it went downhill from there

    – The Warren court – first accepted psychological arguments (“how does the Constitution as written make you feel?)

    “… (I)t is only employed by conservatives and only about issues referring to civil liberties.” is an outright fabrication, a complete unreality, a Twilight Zone episode.

    I still have your arguments contra Heller archived as an example of how far off someone can get reading propaganda and knowing literally nothing about the law.

  • You use a made up “Judicial legislation and naturally you will make up your own definition which will shift according to the argument. Your argument amounts to a glorified, “nyuh-huh”. It is really kind of infantile at this point. 🙂

    “No, Einstein, the role of the Judiciary was to interpret duly-enacted laws in light of the written Constitution, not to fill in any blanks (aka “make stuff up”) with its own unaccountable preferences.”

    An accusation that you do not prove and one you don’t take seriously anyway. Especially when you support the findings of their decisions at any given time. In reality you only want merely to justify results which you like and can’t cough up arguments on the merits for the ones you don’t.

    ” In order to prevent it from being interpreted as addressing gender, of course, which is not what the people were voting for and still did not desire as late as the 1970s.”

    Which flies in the face of how every article and amendment to the constitution is written. You simply want to pretend the laws mean something other than what is written. You do not want the duly enacted laws to be interpreted in the way they were designed to be. So you make up nonsense about limits which are not there and requirements to amendments which never existed.

    “we are not so bound.”

    So constitutional originalism is really a crock. If you are not binding yourself by the thoughts and writings of those over 1-2 centuries ago, then you are not looking for original intent. The founder intent is really just warmed over rationalization done to ignore prior legal thinking and interpretation. Most notably to pretend Amendments 13 through 15 must be ignored.

    Thanks for playing. You gave the game away.

  • Except that “conservative” jurists give a great deal of weight to stare decisis.

    Fomenting this “living Constitution” nonsense by flipping unloved decisions on their backs simply fuels the problem.

  • Article 6 of our constitution bans any religious test for office. Of course, this means that religious conservatives really don’t think it applies.

  • You haven’t even entered the game, Einstein.

    You’re actually asking me to PROVE that the judiciary’s role is to interpret law and not make it up? Have you no education at all?

    –The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; NO DIRECTION [emphasis mine] either of the strength or of the wealth of the society; and CAN TAKE NO ACTIVE RESOLUTION WHATSOEVER [emphasis mine]. It may truly be said to have neither FORCE nor WILL [emphasis his], but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the Judiciary is beyond comparison the weakest of the three departments of power.– Federalist 78.

    –You simply want to pretend the laws mean something other than what is written.– Um, that would be you, pretending that the 14th was meant to address gender despite its containing language excluding women from representative apportionment in such a way as to directly contradict that intent if it HAD been present.

    –If you are not binding yourself by the thoughts and writings of those over 1-2 centuries ago, then you are not looking for original intent– No, if we do not wish to be bound by those intentions then we amend the constitution as prescribed by the document itself and thereby substitute different intentions.

    In the meantime:

    –Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act– Federalist 78.

    Which of course found its expression in Article VI of the Constitution itself:

    –Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

    You contradicted yourself quite neatly in your final paragraph, in case you didn’t notice … dismissing adherence to the intentions of the framers while touting “prior legal thinking and interpretation,” as if the latter could be superior to the former (the SCOTUS has reversed itself over 200 times, most notably when it handed down Brown vs. Board and Lawrence vs. Texas.

    But I’m almost certainly expecting too much of you. One can not understand what judicial legislation is until one understands what federalism is, because the latter is, in large part, what makes the former improper.

  • “Just so we all are aware…”
    You’re already aware, and no one else cares.
    So quit repeating yourself.

  • “If you are not binding yourself by the thoughts and writings of those over 1-2 centuries ago, then you are not looking for original intent.”

    Wouldn’t the plain English words provide the original intent?

    E.g.:

    “Section 7”

    “1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

    Seems quite clear.

    Are you shooting for a time machine and Vulcan mind meld?

  • Great article, although it’s disheartening how flippant a judge can be about the law he/she is sworn to uphold. Clearly we do not have nearly enough of the kind of judges of whom Alexander Hamilton wrote: –But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

    But hopefully we’ll get more presently.

  • You haven’t even entered the game, Einstein.

    You’re actually asking me to PROVE that the judiciary’s role is to interpret law and not make it up? Have you no education at all?

    The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; NO DIRECTION [emphasis mine] either of the strength or of the wealth of the society; and CAN TAKE NO ACTIVE RESOLUTION WHATSOEVER [emphasis mine]. It may truly be said to have neither FORCE nor WILL [emphasis his], but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the Judiciary is beyond comparison the weakest of the three departments of power….Federalist 78.

  • Pretend the laws mean something other than what is written? Um, that would be you, pretending that the 14th was meant to address gender despite its containing language excluding women from representative apportionment in such a way as to directly contradict that intent if it HAD been present.

    And no, if we do not wish to be bound by the framers’ intentions then we amend the constitution as prescribed by the document itself and thereby substitute different intentions.

    In the meantime:

    Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act…Federalist 78.

    Which of course found its expression in Article VI of the Constitution itself:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

    BTW, you contradicted yourself quite neatly in your final paragraph, in case you didn’t notice, dismissing adherence to the intentions of the framers while touting “prior legal thinking and interpretation,” as if the latter could be superior to the former (the SCOTUS has reversed itself over 200 times, most notably when it handed down Brown vs. Board and Lawrence vs. Texas).

    But I’m almost certainly expecting too much of you. One can not understand what judicial legislation is until one understands what federalism is, because the latter is, in large part, what makes the former improper.

  • Ask any judge, of whatever judicial philosophy, if “stare decisis” means that Plessy v. Ferguson (the law of the land for 58 years) shouldn’t have been overturned, and they’ll laugh at you — an unconstitutional decision doesn’t magically become constitutional because it’s been around for awhile. Mind, “stare decisis” BELOW the Supreme Court level is necessary for a smoothly functioning judiciary, and waiting for awhile before the Supreme Court overturns its own precedents is probably a good idea (for the most part), but the duty of the Supreme Court is to apply the Constitution, not what previous Courts have decided the Constitution should mean.

  • A religious test is a legal barrier to serving office, it has nothing to do with whether people vote based on their religious preferences or biases. So yes, those that argue that senators shouldn’t decide to reject a nominee on account of said nominee’s religion because of Article VI are blowing smoke. Mind, that doesn’t mean that it’s a good idea….

  • And RNS, please do something about your asinine moderation system which allows repetitious and harassing garbage from Lisa Strom and Not/Applicable to clutter up every thread but throws comments containing perfectly good references to the Constitution and the Federalist Papers into “Detected as Spam” limbo. Thanks, I’m sure you’ll “work on getting this corrected.”

  • Hardly. You seek restrictions which have never existed and limitations to language never employed.

    “if we do not wish to be bound by the framers’ intentions then we amend the constitution as prescribed by the document itself and thereby substitute different intentions.”

    Now you are contradicting yourself. Framer’s intentions never existed as a valid form of interpretation of the text of Constitutional law. It was always a matter of interpretation in light of the situation before the court and conflicting interests of parties. You were also at once claiming we do not need to be bound by the conventions of 18th and 19th century society and their ideas and then claiming we must follow as you think they intended (but really just made up).

    The amendment process is not how constitutional law is interpreted. It has always been the judiciary’s role to do so. Legislative intent has been invoked at times to clarify a position, but it is never considered binding or the sole form of discourse on such matters.

    “BTW, you contradicted yourself quite neatly in your final paragraph, …

    I didn’t notice because I didn’t do so. Courts reverse themselves all the time. It is their nature. Only you claim that interpretations are set in stone based on the alleged (but actually made up) intentions of those from our long past. Every reversal was based on consideration of past decisions in light of evidence presented in the present. Interpretations change over time because society changes over time. It is hardly a drawback, it is actually the strength of the system. That it is flexible enough to adjust to the times as opposed to arbitrarily adhere to mores of a long gone society. Law is still not Bible study no matter how much you want to treat it as such.

    You can’t seem to keep an argument straight. Either you claim the judiciary must be bound by past intentions of the legislators or it must be practical in light of present issues before it. But that is because your position is entirely fictitious. “Judicial legislation” only means you don’t like a particular decision and have no good faith argument on the merits. It only applies to liberal leaning decisions apparently.

    “But I’m almost certainly expecting too much of you.”

    Mostly because you are expecting to be taken seriously when it is obvious you are just making up a position as you go along and never stay consistent to what you said last.

  • American Counseling Association statement on publicly diagnosing the mental state of an individual:.
    https://www.counseling.org/knowledge-center/ethics/aca-statement-on-publicly-diagnosing-the-mental-state-of-an-individual

    “Avoiding public statements that label an individual with a mental disorder is in the best interest of the public. This approach aligns with one of the counseling profession’s core professional values, as stated in the preamble of the ACA Code of Ethics: Practicing in a competent and ethical manner.”

    Of course, as an amateur, you’re not bound by the code of professionals, or bound to consider”the best interest of the public,” but — of course — your status as an amateur also tells us all we need to know about the credibility of your “diagnosis.”

  • You are under the impression that declarations are facts, that contradicting yourself is some intellectual prowess and that we all don’t know by now how intellectually hollow your premise is.

    But we both know better.

    “You’re actually asking me to PROVE that the judiciary’s role is to interpret law and not make it up? Have you no education at all?”

    Not at all. I am saying that your position is pseudo intellectual whining to complain about decisions you don’t like. That it is contradictory, purely partisan, and seeks to upend the system of checks and balances built into the system through fictional assertions.

    I don’t take your assertions about what constitutes “judicial legislation” seriously or your unsupported statements about the proper role of the judiciary. Nor do I believe that “Founder Intent” is ever really employed except for pretending civil liberties don’t currently exist. It always amounts to sour grapes grousing because conservatives seldom make decent arguments when it comes to civil liberties issues.

    Especially since the only purpose of your grousing is to complain about the results of Casey v. Planned Parenthood and Obergfell but not Citizens United or Hobby Lobby which employed the same kind of legal reasoning.

    Its all about results and skewing them conservative/pro-discrimination for you. That much is more than obvious.

  • “The amendment process is not how constitutional law is interpreted”

    That sentence makes absolutely no sense. I knew I was expecting too much.

    This is how a person with both integrity and legal training understands constitutional interpretation:

    On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed…Thomas Jefferson.

    [A] regular mode of making proper alteration has been providently provided in the Constitution itself. It is anxiously to be wished . . . that no innovation may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted….James Madison

    To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; is to repeat what has been already said more at large, and is all that can be necessary….Chief Justice John Marshall.

    Once again, more slowly…we can NOT be bound by a law as written, intended by the framers, and understood by those who ratified it … by properly AMENDING it. It’s not impossible — it’s been done twenty-seven times. That you are so averse to it demonstrates the modern lib’s dilemma: despite your smug pontifications about the “right side of history,” you know that your pet agendas do not have the support of the majority of the people, let alone the supermajority needed to properly amend the constitution. That is why you rely on the unelected oligarchs to make your end-run around the constitution and then fall to pieces when they quit on you — the last one in palpable disgust.

    Sorry, Tater, we fought a revolution for the right to representation, and it’s not going anywhere for a long time yet.

  • The founders specifically warned against tyranny by the majority. I guess their plain words aren’t good enough for you.

  • –Have you no education at all?
    –Not at all.

    Most honest thing you’ve said today. ?

    The rest is a cloud of froth that amounts to nuh-uh. No cites, no references, just statements of your own uninformed opinions and what you do or don’t take seriously — which no one cares about. Least of all me, for I don’t write to convince opinionated ignoramuses who have no idea how much they don’t know but for those with actual honest curiosity about how our republic was designed to work. Thank God we’ve got a chance to get at least part of the way back to that.

  • In fact, no.

    Clearly no living judge – at least not one who is in a phone book – is going to suggest that Plessy v. Ferguson, 163 U.S. 537 (1896) or Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) were swell.

    But many would not because either case was bad law. They weren’t. They were decided according to the Constitution and laws as written.

    Dred Scott was rendered moot by the Civil War and the Fourteenth Amendment.

    Pless v. Ferguson has never actually been overturned, it simply got disregarded.

    And the legal reasoning in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), based on “adverse psychological effects”, was simply silly and has led to nothing but trouble from that point forward.

    What you’re arguing for is an activist Supreme Court and bypassing the democratic process, which is the very vice that led to Roe v. Wade in the first place.

    Two wrongs don’t make a right, and overturning Roe v. Wade is a bad idea.

    We need a constitutional amendment to fix not only that but every case that involves the Supreme Court extending Federal jurisdiction over matters that belong to the states and the people.

  • Forget about “glasses,”literal or figurative. If Reality offends you so deeply, maybe you’d be better off just shutting your eyes.

  • Oh my my, that word constitutes bigotry against those with learning disabilities, which would no doubt have included your parents.
    Flagged.

  • RNS is on life support at the moment.

    They have a pending grant application with the PEW Foundation contingent upon becoming a charitable foundation.

    They’ve lost a number of people.

    I expect they’ll be awhile before things get back to normal.

    Meanwhile Religion Dispatches is becoming an imprint of Rewire.News!:

    http://religiondispatches.org/moving-right-along-a-note-to-readers/

    National Catholic Reporter’s Comments Section adiosed late last year and it continues to struggle.

    Progressivism is just not what it used to be.

  • Ah, so that’s how it works! We don’t need to “overturn” Roe v. Wade, we just need justices that will disregard it as irrelevant. Sorry to disappoint you, but that’s the same as overturning it. And that’s fine, because an activist judge isn’t one that overrules bad decisions but one that rules based on his own biases and prejudices rather than the law — the Courts that gave us Dred Scott and Plessy were the activist judges, the Court that overruled the latter were not.

  • You have been making wild assumptions and declarations and trying to pawn them off as both facts and positions requiring to be taken seriously. But in reality, it is just a gloss to self-serving nonsense. A way to justify purely partisan results after the fact and attacks on civil liberties which annoy you.

    You apparently have no regard for the judiciary’s role for the last few centuries and have come up with ridiculous restrictions and limitations which have never existed. All the while pretending it was “Founder Intent” and all the while pretending like we are bound to the ideas of 18th and 19th century society.

    I am portraying your position in an unflattering light, but it is the most honest way to put it. Just a post-facto justification for purely conservative partisan ends.

  • Your entire spiel makes no sense. You are trying to pretend the judiciary is limited in interpreting the constitution in ways that have never been applied.

    Your own claim is that the judiciary has no business interpreting the constitution to meet a given conflict of law. That role according to you only the amendment process is for that. Of course that was all nonsense anyway. It really only boils down to you wanting SCOTUS to rule the way you want to no matter what. So you try to cough up some nonsense collateral attack on their power because you have no arguments against the actual legal merits claimed.

    Jefferson was wrong on many ideas concerning our Constitution. Especially notions of civil liberties, the role of the judiciary, and Federalism. History lionizes him, but largely ignores most of his ideas. (

    Your Madison quote is an irrelevance. The judiciary is not altering the Constitution at all. You just have silly ideas about what their role actually is. You also have rather silly and limited ideas about what the meaning of given parts of the Constitution mean. (Pretending the study of law is like Bible Study)

    The Marshall quote actually supports what you are railing against. Of course Marshall’s Court probably has the largest number of cases you would call “judicial legislation”.

    (Wondering where you are cutting and pasting your quote mines from out of curiosity)

    “Once again, more slowly…we can NOT be bound by a law as written, intended by the framers, and understood by those who ratified it … by properly AMENDING it”

    Once again, you are trying to justify specific partisan end results by making up what the judiciary actually does and its role. “Intended by framers” has never been important. The letter of the law always has been. You are trying to shift goalposts and divert the discussion away from what is actually meant by “Constitutional Originalism”.

    “you rely on the unelected oligarchs”

    And there goes any pretension of making a well informed intellectual point. It is all about attacking long standing judicial power and its role as a check upon the elected branches of government. You are not arguing for how government operates, but how you want it to

    One relies on such people because EVERY DISCRIMINATORY LAW IS PASSED BY MAJORITY VOTE. The Constitution guarantees liberties for all, including political minorities. Elected branches of government can’t be relied upon to interpret the Constitution in a way to meet such goals. So they need the Supreme Court to keep them honest.

    What it all comes down to is you want nothing to impede discrimination under color of law. Time and again you show yourself to be a rather malicious bigot who seeks to harm others with impunity. That is your end goal. It never had to do with maintaining and upholding a democratic government and free way of life. It has to do with attacking others. How petty of you.

  • Your entire spiel makes no sense– Constitutional law seldom does to an undereducated layperson.

    Your own claim is that the judiciary has no business interpreting the constitution to meet a given conflict of law. That role according to you only the amendment process is for that– No, the judiciary has no business ruling on a conflict of law that presents no specific federal constitutional question. The way to legitimately create a federal constitutional question where none exists is to amend the constitution. You have a very odd mental block on this concept.

    Jefferson was wrong on many ideas concerning our Constitution– Oh I know, Jefferson was wrong, Madison was wrong, Marshall was wrong, everyone was wrong but Ms. Insurance-in-Some-Capacity who doesn’t know what federalism is and therefore is helpless to ascertain whether Jefferson was wrong about it or not.

    The judiciary is not altering the Constitution at all– The Constitution is altered when things that are not found in it are made up out of a judge’s imagination. Marshall was not a judicial legislator for he didn’t believe in it. His SCOTUS struck down exactly one law as unconstitutional.

    Wondering where you are cutting and pasting your quote mines from out of curiosity– Paste them into Google to find out, just like I have pasted many of your more suspect assertions to find them lifted directly from Wikipedia.

    “Intended by framers” has never been important. The letter of the law always has been — Framers’ intent has always been important in constitutional jurisprudence. And the letter of the law does not support your positions in any case.

    It is all about attacking long standing judicial power and its role as a check upon the elected branches of government– No one disputes that the federal judiciary is a check upon the legislature where a federal question exists. Where no such question exists, the judiciary in intervening ceases to be a check on the other branches and becomes an usurper of them instead.

    The Constitution guarantees liberties for all, including political minorities — The Constitution guarantees certain specified liberties via amendments, and it prevents disparate treatment on the basis of race in state laws also via amendment. Everything else remains the business of the states. If you would like to add to the list you need to work on amendment like less ignorant generations did.

    Elected branches of government can’t be relied upon to interpret the Constitution in a way to meet such goals — And there is your problem right there, the fatal error of the judicial activist: one does not properly interpret the Constitution to meet any “goal.” One interprets it merely to see that any given law is consistent with the Constitution as written.

    It never had to do with maintaining and upholding a democratic government and free way of life — We have a republic, Einstein, not a democracy. And you can not have a free way of life where law-making is taken from the people and usurped by oligarchs instead. As Washington warned: If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield

    I will ignore your other post, as it is merely more of the same insubstantial spew.

  • You already made it clear you have no regard for how the judiciary is set up, how it operates and its function as a check upon the power of the legislature. Your contempt for the system we have operated under for two centuries + makes your dishonest pretension of allegedly adhering to founder intent laughable.

    You already gave the game away. Thanks for playing. 🙂

  • Poor Tater — didn’t learn a thing.

    Turn off the phone and the TV and read up on what a federal republic is, already.

  • Once you started in with “unelected oligarchy” bullcrap, you already destroyed your own argument and any pretension of a POV in line with constitutional principles and basic democracy. You shot your phony aspirations in the foot.

    An independent judiciary is a key feature of a free society. You are just annoyed a free society involves laws which protect people you may not like. Oh well.

    Besides, it was never about Constitutional principles, just getting a partisan result you wanted. As usual.

  • If you reread my posts you’ll note that I did not suggest we disregard it.

    I stated clearly we need to amend the Constitution.

    The Courts that gave us Dred Scott and Plessy were originalist. No sh-t.

    They were so well-grounded in both the Constitution and the decisions which preceded them that Dred Scott could only remedied with an amendment to the Constitution and Plessy – which should have been dealt with with an amendment – was disregarded by perhaps the most lunatic Court ever.

    In a 2005 article published by National Review, Justice Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”.

    You propose to remedy that with more of the same.

    That, sir, is nuts.

    That’s like curing an alcohol addiction with a heroin addiction.

  • Reading “Besides, it was never about Constitutional principles, just getting a partisan result you wanted.” from your keyboard made me laugh so hard I spit my coffee out.

    I certainly hope you realize that as a “living Constitution” maven and certified legal cretin you are blowing air out your blowhole.

  • Boo ha ha!

    The “living Constitution” aficionado accuses the originalist of contempt for the system.

    Too funny!

  • I would love to hear how you envision the “judiciary … interpreting the constitution to meet a given conflict of law.”

    Do you mean fabricating new rights out of penumbra?

    Or interpreting the 14th Amendment in ways never before even imagined?

  • It usually takes you a while to admit what your real position is. But there we go.

    What I have learned is that whatever you claim is, usually just the conservative party line being dressed up with a Gish Gallop. 🙂

  • Your position seems to be that if SCOTUS makes a truly horrible, clearly unconstitutional ruling that ruling is locked in, to be honored by all future SCs, only to be overturned through the amendment process. You are wrong — the duty of SCOTUS is to uphold the Constitution, not the previous rulings that have distorted or even disregarded it. To overturn an unconstitutional ruling is not the act of an activist judge, but to uphold such a ruling is.

  • You want to fabricate new rights for fetuses, at the expense of the health and well-being of pregnant people, and you don’t think that the 14th Amendment applies to gay people.

  • My position does not “seem” to be anything.

    It is crystal clear.

    The way to amend the Constitution is with an amendment.

    If the way to repair damage is to get new justices that see things differently, the Supreme Court becomes simply another political battleground, in this case with unelected participants.

    There is no such thing as “an unconstitutional ruling” by definition. The Supreme Court is the last and final judge of what the Constitution means.

    Now, I may think an opinion (Roe v. Wade, Obergefell v. Hodges) is poorly reasoned, idiotic, based on the aphorisms of a fortune cookie, and outright silly. But it IS the final word.

    If we do not have that, we have a nation of men, not laws, and the Constitution is meaningless.

    The solution is fairly simple. Whether it was Roe v. Wade or Obergefell v. Hodges, the mischief occurs when an activist decides to assume jurisdiction over a matter reserved to the states and the people.

    The solution is to amend the Constitution to remove their hands from the pie, their mitts from the goodies, and remove their boots from our necks.

  • He means that he doesn’t know what a federal question is, so in his world the SCOTUS should just decide everything and make up law where there is none.

    He’d be pitiable if he weren’t so obnoxious.

  • Gish Gallop = I don’t read no stinkin’ books so I don’t know what you’re talking about. I just know what I like.

  • An independent judiciary that operates within the limits set by the Constitution is a key feature of a free society. An independent judiciary that ventures into the legislative arena is an unelected oligarchy. Your understanding of separation of powers is disgracefully deficient. Read up.

  • Limits you have arbitrarily declared in a way to render them completely useless as the check on legislative power they are intended on.

    “An independent judiciary that ventures into the legislative arena is an unelected oligarchy.”

    Well that is certainly your opinion. But it is not a particularly honest interpretation of what they do or their function.

    You are arguing by stipulation. Making declarations you want accepted by facts rather than presenting facts.

  • https://rationalwiki.org/wiki/Gish_Gallop

    The Gish Gallop (also known as proof by verbosity) is the fallacious debate tactic of drowning your opponent in a flood of individually-weak arguments in order to prevent rebuttal of the whole argument collection without great effort. The Gish Gallop is a belt-fed version of the on the spot fallacy, as it’s unreasonable for anyone to have a well-composed answer immediately available to every argument present in the Gallop. The Gish Gallop is named after creationist Duane Gish, who often abused it.

    Although it takes a trivial amount of effort on the Galloper’s part to make each individual point before skipping on to the next (especially if they cite from a pre-concocted list of Gallop arguments), a refutation of the same Gallop may likely take much longer and require significantly more effort (per the basic principle that it’s always easier to make a mess than to clean it back up again).

    The tedium inherent in untangling a Gish Gallop typically allows
    for very little “creative license” or vivid rhetoric (in deliberate
    contrast to the exciting point-dashing central to the Galloping), which in turn risks boring the audience or readers, further loosening the refuter’s grip on the crowd.

  • Like I said, “I don’t read no stinkin’ books so I don’t know what you’re talking about.”

    Not my fault you can’t keep up. Without knowing what federalism is you shouldn’t have undertaken a discussion about it in the first place.

  • I didn’t arbitrarily declare any limits. They are written into the constitution itself, and were declared by the founders and framers (of both the original constitution and of the amendments), relied upon by the people who ratified that constitution and its amendments, and affirmed by the Supreme Court prior to the era of Woodrow Wilson who pulled the “living constitution” nonsense out of his ever so racist and elitist posterior. All those details you call a Gish Gallop because you don’t read no stinkin’ books and don’t know what I’m talking about.

  • You have been doing noting but making arbitrary declarations of alleged limits to judicial power. Essentially any decision you do not like but can’t figure out a decent argument on the merits is suddenly declared “Judicial legislation”.

    It is telling that the only ones you would apply such a label to are those supporting civil liberties and have a decidedly liberal bent. Conservative decisions which may have completely specious reasoning behind them get no such scrutiny or label. There is no rhyme or reason to how it is employed outside of partisan grousing.

    The end result is you are seeking a weak judiciary which is hardly independent nor much of a check on legislative power.

  • You don’t know what you are talking about anyway. Its all just a nice gloss for looking for poor excuses for a judiciary to rule for a specific partisan end. One based on dishonestly claiming to invoke the alleged intentions of the Founders, done to attack the notion of civil liberties which they were so poor at understanding.

  • Indeed the judiciary was designed to be the weakest branch. The framers’ words exactly, that the people relied upon in ratifying the constitution. Refer back to Federalist 78 — you might learn something.

    Doesn’t mean they can’t be an effective check, however, within their proper sphere. Again, review Federalist 78.

    The 9th and 10th Amendments are not vague or open-ended, btw. They were placed there so that the concepts of federalism and enumerated powers could not possibly be interpreted away.

    They underestimated, evidently, how ignorant the populace could become. One of the drawbacks of genius.

    Conservative decisions which may have completely specious reasoning behind them get no such scrutiny or label — The entire mess of judicial legislation got its start in order to help big business (the “conservatives” of their day) avoid perfectly legitimate state regulation. The fundamental right du jour back then, shoehorned into the Due Process clause enacted to prevent arbitrary penalization of blacks, was “freedom of contract” (something you don’t hear a whole lot about today). That the progs are the current constitution-manglers does not make it any less illegitimate.

  • I’m going to a meeting next week. I would like to know at least one of the silly, groundless, lawsuits you refer to.

  • It is possible that the multiple personalities are using the strategy originated by Putin’s supporters. The idea is to raise the level of anger and hate in the discussion. This reinforces the feeling that the “other side” is the enemy. This kind of separation and hate between members of the society reinforce the attempt to gain devotees to support the oligarchy. This is part of the strategies that were successful in Russia, the victory for Brexit , the USA in 2016, and is ongoing in Central and South America and Europe. The technique is to create anger against the other. Distort the validity of facts and spread disinformation. The intention is to create a society in which we can not trust each other or even understand each other. The leader’s “good people” will follow him. Operators of this program are trained and funded.

  • Which turned out to be unworkable in light of actual conflicts of law requiring constitutional interpretation by the court. You are about 215 years too late to make that argument about the for the judiciary. More proof that alleged Founder intent doesn’t always translate into a workable system nor bears in mind practical concerns of government.

    “Doesn’t mean they can’t be an effective check”

    But in practice that was exactly what happened. Which is why John Marshall changed the very nature of how SCOTUS looked at issues before it. What you call Judicial legislation has been the nature of how they have acted from the moment they became a significant branch of the government.

    The great thing about our system being its ability to adapt based on the conditions of the times rather than be bound by the mistakes or misconceptions of people several centuries ago. The Founders had a lot of unresolved issues and some very bad ideas which did not stand the test of time. Bear in mind the Constitution was the second effort at forming a basis of an American government.

  • As far as I can see they are all opposed to unconstitutional government support of religion or government discrimination against non-believers. That isn’t silly or groundless for me.

  • Who says it was unworkable? It worked just fine until Wilson decided that the unwashed were unworthy to govern themselves and the SCOTUS of the time bought it. There is no reason why it shouldn’t work again.

    And John Marshall changed nothing, as I explained recently to another low-information commenter. Hamilton, Madison and Jay explained exactly how the principle of judicial review worked in the Federalist Papers, including the judiciary power to strike down unconstitutional laws, and the people ratified the Constitution understanding this.

    Now it’s true that the president at the time, Thomas Jefferson, was not a fan of such power being invested in the judiciary because he did not feel that the Constitution provided sufficient checks upon it (which is a well-taken point and can certainly be remedied by amendment even now). But it doesn’t mean that Marshall was doing anything revolutionary. He was himself a firm believer in separation of powers, judicial restraint AND originalism, as has already been demonstrated.

    You still appear to be confused about the difference between judicial review and judicial legislation, no doubt due to your confusion about federalism and separation of powers. They simply are not equivalent.

  • Indeed it is great that our system can adapt to the conditions of the times, but our constitution prescribes the way that we are to adapt. We amend the constitution when necessary. And this is done BY THE PEOPLE, not unilaterally by the unelected. That is how we got rid of slavery, that is how we made black people citizens, that is how women acquired the vote, and that is how we came to have an income tax. The judiciary did not create those things out of woo-woo and pixie dust like you want them to now.

    I shall be very interested to see how you feel about constitutional amendment by the unelected and unaccountable when those unelected/unaccountable are a handful of staunch conservatives.

    I suspect it will be reminiscent of the Dems’ newfound affection for states’ rights since they lost control of the federal government. LOL!

  • You don’t think it’s great our system adapts to the times. You are stumping for a reactionary turning back the clock to a time to when we avoided all talk of civil liberties in legal discourse. Hoping for an actively discriminatory nation. Hence your desire for a weak judiciary. The only branch of government with a duty to consider rights of political minorities.

    You are not a particularly good person at heart.

  • John Marshall already did 215 years ago. You are late to the party there. Oh well.

    Good luck trying to pretend this whole thing was anything beyond your disdain for the civil liberties of others. If you were capable of a sane legal argument for your POV you wouldn’t be allegedly attacking the methods the court used.

    Constitutional orginalism has always been nothing more than dressing up arbitrary, spurious decisions with an entirely partisan end goal.

  • A weak judiciary is what the people agreed upon.

    They have never agreed to the contrary. Therefore the social compact stands as written.

    The judiciary’s only duty is to ensure that our laws are consistent with the constitution.

    You are not a particularly smart person at brain.

    Why do you hate our social compact?

  • Our great system has built-in mechanisms for adapting to the times.

    Congress passes new laws.

    Article V provides for amending the Constitution, which is done from time to time.

    You are not a particularly smart person at head.

  • The great thing about our system when it’s used as it was written is that very bad ideas which do not stand the test of time can be weeded out.

    What you don’t get, for partisan reasons, is that Article V is the proper mechanism for that, not Justice Kennedy and fortune cookie aphorisms.

  • LOL! A weak judiciary means a weak democratic system. The system worked better than intended. You are centuries too late for that argument.

  • We do not have a democracy, Einstein. We have a federal republic.

    You clearly do not know what that is, and appear to hate its key features.

    Which is why you hate our social compact, which is the blueprint of a federal republic.

    And you serve to highlight just how excellent it is that the control of our judiciary for the foreseeable future has been removed from those who are happy to abandon that compact and embrace tyranny to get what they want in the short-term — whom the founders, with their unfortunately accurate knowledge of human nature, saw coming from two centuries away. Thank you for doing your part, and doing it so loudly.

  • Yep, I absolutely capitulate in the task of trying to teach an ignoramus — and a willful one at that — the civics lessons he should have learned in high school. For that has never been the purpose of any exchange with you. The purpose is illustrative only.

  • You haven’t made an honest or intellectually supportable point yet. But then again you are trying to polish a turd here of attacking the judiciary because you didn’t like how they ruled in the past. Its a tough argument to make with a straight face.

  • You seem to veer towards autocracy or at the very least oligarchy. Looking for a government which will deliberately harm others for your own gratification. Not a worthy goal.

  • You are right, we ARE a nation of laws rather than men, which is why the Supreme Court has the power to overrule previous courts when those earlier courts got it wrong — the Supreme Court should rule based on the Constitution and the law, not on earlier courts’ erroneous opinions on the Constitution and law.

    Mind, I wouldn’t complain at all, at all, if we passed a constitutional amendment giving 2/3 of the states the power to override a Supreme Court decision.

ADVERTISEMENTs