July 24, 2014

"It is not a coincidence... that judges appointed by Republican and Democratic presidents have divided along party lines in these cases."

"I do not believe this is because Republicans dislike Obamacare and Democrats like it. It is because Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law."

Writes lawprof Richard L. Hasen.

My question for Hasen: But if a judge is going to look at the big picture and the human costs, won't that perception include his likes and dislikes?

I think the answer must be yes, and if so, I believe Hasen — wittingly or unwittingly — conceded that textualism does constrain a judge. Yes, this person — this Scaliaesque entity — will not save us from harsh results, but at the same time, this means that the textualist's idea of what results are, in fact, harsh never becomes part of the analysis.

ADDED: What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists? (Maybe that isn't what's happening, but we can assume it is, for the purpose of discussion.) Why isn't that what a liberal should like best (aside from preventing any Republican Presidents from ever appointing any judges)? What would the nontextualist conservative do with clearly written statutes that seem "harsh" to him or impose what he calculates as "human costs"? Does Professor Hasen really want this character's "big picture" trumping the words of legislatures?

AND: I'm trying to imagine what this out-and-proud conservative creative-rewriter of statutes would do. Imagine an arch-conservative President appointing stalwart conservatives with strong visions of the good who feel free to fix statutes to save us from harsh results and human costs. Obviously, Hasen would hate that, and yet it's so tempting to excoriate the textualist conservatives for their textualism, even when you know damned well you'd really hate their nontextualist work. But I think most laypersons think textualism is what a judge should do, and a judge who emerges from the cloak of textualism is much easier to criticize.

ALSO: A textualist may think he can discipline legislators into writing their statutes clearly, but what can such a project mean with a sprawling text like the Affordable Care Act? Did anyone even read it? Was any legislator in a position even to perceive the loose ends that needed tying up? The original act was intended to coerce the states by putting all of the Medicaid funding at risk. The Supreme Court saved Obamacare by rewriting the statute so that only the Medicaid extension would be lost, otherwise the spending power would not have supported the scheme.

A Scalia majority would have taken the entire statutory scheme down in 2012, and we wouldn't be talking about this new set of cases.

In the new cases, no one can find the text needed to make the federal exchange work, and it's no surprise that there's nothing in the text that addresses the remnant of the ACA that was left after the Supreme Court saved us from what Chief Justice Roberts — in his Republican-appointed nontextuality — might have considered a "harsh result."

63 comments:

The Crack Emcee said...

"If a judge is going to look at the big picture and the human costs, won't that perception include his likes and dislikes?"

You mean, won't he shy away from ""harsh results" like most people would?

Depends on how much slaver he has in his blood,...

AustinRoth said...

It is the difference between believing judges' role is to actually rule on the law vs. believing that judges' job is to legislate from the bench.

damikesc said...

But if you go by the texts, everybody knows the rules up front which is pretty key for the whole law thing. If you look at legislative intent, then legislators can lie about what they want and have unelectable judges and bureaucrats subject us to bad lAws.

Fernandinande said...

But if a judge is going to look at the big picture and the human costs, won't that perception include his likes and dislikes?

Of course; it really means the judge is "winging it" to get the answer he likes. Using the phrase "big picture" is supposed to make it sound like a Good Thing.

Dad29 said...

Does Professor Hasen really want this character's "big picture" trumping the words of legislatures?

If that happens, does Prof. Hasen mistakenly assume that the courts will retain authority? Under which U.S. Constitution?

Matt Sablan said...

The problem is when you leave textualism, judges get a lot less consistent. Mattering on how non-textual you get, it makes hard to follow the law. If a judge will reinterpret the statute's plain language, I could be a criminal despite following the letter of the law. That's not good for society.

Matt Sablan said...

"You mean, won't he shy away from ""harsh results" like most people would?"

-- If a law is bad and leads to harsh results, but is constitutional, the legislature needs to fix it. To ensure the legislature fixes it, we vote the bums out until it is fixed.

That's the check and balance on bad laws, not "Judge Wishy-Washy will fix it."

Saint Croix said...

Is he oblivious to Hugo Black? Or, for that matter, Akhil Amar or James Boyd White? There are liberals who like the Constitution and read it carefully.

I believe it's Roe v. Wade that has corrupted our nomination process. Liberals cannot nominate serious readers of text, because serious readers of text know Roe is absurd.

Conservatives, meanwhile, stay away from the John Marshall Harlans or Felix Frankfurters of the world, because who knows what they will say about anything? Judicial philosophy might constrain you, but text always does.

That's why so many liberal scholars spend so much time trying to deconstruct the words of our Constitution. And yet these same scholars know with utter assurance that their arguments (made up of words) can be read and understood. You'd think their inability to read and understand words would make them give up on communicating altogether. But they are not serious about their arguments. It is dishonest posturing designed to free the judge to dictate whatever result he deems best.

timb said...

I'm not sure why you think he says that's wrong. Yes, testualism is stupid, but Republican politicians can appoint anyone they wish, as long as the Senate approves.

Pettifogger said...

Justice Pettifogger wrote the opinion striking down the underpinnings of much of the regulatory state because of excessive delegation of legislative power. Pettifogger explained that, looking at the big picture, the regulatory state was bad for the economy and bad for individual liberty.

The usual suspects would acquire an instant fondness for strict textualism.

traditionalguy said...

The reason we care is that textual reasoning actually is about law. But results oriented reasoning actually is a two step governance game that allows changes to the hard laws.

First the results oriented skilled writer of the decision provides a cover for Congress persons second allow it to stand. They would rather avoid voting on these hard cases. They need to get reelected, silly.

The remedy is a Tea Party that elects Congress persons who will overturn the two step games.

Gahrie said...

But I think most laypersons think textualism is what a judge should do

Isn't textualism the reason why laws are written down in the first place? So that both the people and the judges may kno what the law means by a plain reading of the text?

SJ said...

I'm trying to imagine what this out-and-proud conservative creative-rewriter of statutes would do. Imagine an arch-conservative President appointing stalwart conservatives with strong visions of the good who feel free to fix statutes to save us from harsh results and human costs.

Imagine a judge finding a case contesting many Congressional actions...and finding that the Congressional Intent over-rules the Commerce Clause limitation on what Congress can do.

If the intent of Congress is to protect under-age women from making uninformed decisions related to their reproductive health, than laws which require waiting periods for underage mothers at abortion providers, multiple medical
consultations, and medical discussions of adoption vs. abortion may pass Constitutional muster.

Would those laws remain Constitutional under Textualist discussion of the Constitution and Federal authority?

SteveR said...

Working from the answer backwards. Makes for bad science and bad law. The other branches can do that.

Richard Dolan said...

The focus on text, statutory and constitutional, was always intended to restrict judicial policy-making, as textualism's proponents have said many times. The cases that really got it going, in addition to Roe v. Wade, were the death penalty cases of the '70s (Gregg v. Georgia), the race-based cases, the invocation of 'penumbras', and on and on with the usual litany.

Of course, before there was a Warren court, there was a court of old men who used the constitution to strike down a host of social welfare laws, often by invoking the contract clause of the constitution. That ended, more or less, with the switch in time that saved nine.

One problem is that overarching principles -- whether derived from sources preferred by left or right -- are often quite inflexible, and have a way of taking on a life of their own. Equal protection, due process, cruel and unusual punishment, to pick just three, get extended according to their inner logic, which rarely makes room for the messier realities of life. When the judges doing the extending are true believers in that inner logic, it's inevitable that things will go too far.

Textualism tries to provide a way to stop that cycle. It's got a lot of problems of its own, but it's great advantage is in offering an objective focus for the legal analysis other than the internal logic of grand, overarching principles.

Nonapod said...

"Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law"

This is the specific area where I (and most others on the right) take exception. Essentially there is this assumption on the left that these judges, these human beings, are greater than the sum of our legislative parts. They are greater than the constitution, greater than the congress (low bar, I know), and greater than the people. The underlying assumption is that they are a more wise and better class of people. It's a very unAmerican idea.

Judges are human beings, and human beings are bad and stuff.

B said...

What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?

The court will only bend the language one way. In a liberal's favored direction.

I suppose if you want to err on the side of a liberal's feelings, then that's good. If you think liberal thinking is fallible, then this could lead to some nasty outcomes created by a misguided judge.

bleh said...

I believe "harsh results" are necessary for a democracy to properly function. As others have said, if judges faithfully interpret laws no matter the consequences, then legislatures will have to step up their game and write better laws. No bailouts.

A related problem is the executive discretion as practiced by the Obama administration. See, e.g., immigration and drugs enforcement.

One reason I can never get behind the Democratic Party is that it's the party of (a) lawlessness and (b) government power. One or the other would be tolerable, but the combination of both is a recipe for tyranny.

rhhardin said...

The law was a piece of shit before Scalia got to it.

Hagar said...

A stinking pile of shit.

It was written by Harry Reid.

The Godfather said...

Textualism is only a secondary issue. The primary issue is the Constitution (even in this supposedly statutory case).

Hasen says that "In this time of political polarization, Congress is much less likely to fix any statutes, much less a statute as controversial as Obamacare" so judges should do so. He would effectively repeal the central feature of our government structure: the division of powers among three branches, and the division of the legislative power between two houses. If you can't reach a compromise, then the WAY IT'S SUPPOSED TO WORK is that nothing gets done. Judges aren't supposed to trump the Constitution.

In fact, of course, Congress is perfectly capable of fixing the "exchange" issue, just as it was perfectly capable of deferring the deadlines for the various mandates, etc. But the House would have insisted on a quid pro quo. Obama and his supporters don't want to have to compromise, so they applaud judges who will fix "problems" for them without requiring any compromise. But that's not how the Constitution is supposed to work, and in the long run we are going to have to decide between the Constitution and the convenience of liberal politicians.

Ann Althouse said...

"You mean, won't he shy away from ""harsh results" like most people would? Depends on how much slaver he has in his blood."

You're missing the point that a truly pro-slavery person would picture the abolition of slavery as a harsh result with human costs.

Chance said...

Scalia in Gonzalez v. Raich? Catholicism or textualism?

gspencer said...

"What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?"

Article I, section 1 gives the explanation of why nontextualism is wrong.

"All legislative powers herein granted shall be vested in a Congress of the United States,"

"All" means all, and that's all that "all" means. The judiciary has NO law-making authority.

If the legislature wrote it incorrectly, then it's to the legislature to go back and do it right.

Ann Althouse said...

"It was written by Harry Reid."

Written by him?!

I don't believe he even read it.

I don't believe any one person has read the whole thing, and I don't think we know the names of the writers of the parts of the thing. The legislative plan was to get some big thing through and then to make it into something that would begin to work, to crank forward enough so that it couldn't be reversed, and then to fix it one way or another, in the depths of the executive branch or with the help of helpful judges, to keep it moving forward, dragging us all in until we were so caught up that we would only cry "keep going" like a person three-quarters run over by a car.

Saint Croix said...

Isn't textualism the reason why laws are written down in the first place? So that both the people and the judges may kno what the law means by a plain reading of the text?

Imagine an unwritten criminal law!

Delayna said...

"a truly pro-slavery person would picture the abolition of slavery as a harsh result with human costs."

Which is why leftists scream in agony whenever any of their initiatives are delayed.

The Crack Emcee said...

"conservatives with strong visions of the good"

ROTFLMAO!!!!

I'm thinking of y'all trying to elect Romney again.

And not doing shit about slavery, either.

Whites have given me strong visions of a lifetime of torture,...

The Crack Emcee said...

Ann Althouse,

"You're missing the point that a truly pro-slavery person would picture the abolition of slavery as a harsh result with human costs."

No, like most whites, they'd see costs - but not human - we already did that, and have the written narrative, remember?

No people who would allow a slave's eyes be gouged out, over a broken dish, thinks of the human costs,...

Hagar said...

@AA

Quite so; no human bean has "read the whole thing," including cross references to itself and other legislation. Also I think I remember reading that in the final version, the one they voted on and passed, there were penciled in provisions in handwriting not recognized as belonging to any known participant in the negotiations.

However, Harry Reid personally ramrodded the process, and it was run out of his chambers with even his own party's Senators and Representatives kept in the dark.

So in that sense Harry Reid "wrote" the bill.

(And that is also largely how he "runs" the U.S. Senate. The rest of them might as well go home for all the say they have about what gets legislated.)

The Crack Emcee said...

Delayna,

"a truly pro-slavery person would picture the abolition of slavery as a harsh result with human costs."

Which is why leftists scream in agony whenever any of their initiatives are delayed.


Y'all will complain about my black/white attack as long as you insist on spinning (AKA twisting, lying, deceiving) everything into a liberal/conservative paradigm.

It's your choice.

At least mine serves a real purpose.

Fucking knee-jerk reactionary assholes,...

Peter said...

Can one reconcile anti-textualism with marbury v Madison and still retain a constitutional republic?

Well, yes. By impeaching imperial judges.

tim maguire said...

The difference between textualists and "big pictureists" is the difference between a republic of laws and a totalitarian state of men, the difference between human liberty and fascism, the difference between post-enlightenment and pre-enlightenment thinking.

Hasen is the officious busybody who will harass you night and day, make a hell on earth, for your own good.

mccullough said...

Since this is legislation and not an interpretation of the Constitution, the statute could be amended. So why blame the judges for following what the statute says. Obama can blame Republicans for not amending the statute to allow subsidies in the federally-run exchanges and Republicans can say they'll pass the subsidies if Obama and the Dems agree to other changes in the statute.

Guys like Hasen are fixated on the judiciary. This is a legislative problem so it's up to the legislature, just like Hobby Lobby was.

Larry J said...

What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?

The first is what is required for "rule of law" and the second results in "rule by law." Instead of following the law as written, different judges would be free to come up with their own rulings, essentially making up shit as they go. That would certainly undermine the whole (already absurd) notion that "ignorance of the law is no excuse." How could anyone, even if they consulted with lawyers, know what the law is when in practice it all depends on which judge rules on any given matter.

Judges aren't special. They're just as human as everyone else. Many are little more than failed lawyers with sufficient policial connections to get appointed/elected to the bench.

Ann Althouse said...

"No people who would allow a slave's eyes be gouged out, over a broken dish, thinks of the human costs,…"

It's a matter of selecting the costs that befall various humans. It no humans were experiencing the effects, no one would be in court over it. In federal court, you aren't even allowed to have a case that doesn't have a concrete effect on people.

harrogate said...

"If a law is bad and leads to harsh results, but is constitutional, the legislature needs to fix it. To ensure the legislature fixes it, we vote the bums out until it is fixed."

Our political system has long been so owned by corporate and financial interests that the ninth-grade civics class synopsis, the idea that the voters own the country, seems bizarre.

And no, this is not an endorsement of judges "legislating from the bench," as the talking point still seems to go. I just think we are long past the point where we can credibly pass off things like you have written. The unironic positivism of it all is hard even to read.

machine said...

"In fact, it was Justice Scalia himself, together with Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, who interpreted the health reform statute precisely this way in the 2012 health reform case—holistically, and assuming the statutory text makes subsidies available on state and federal exchanges alike.

In their joint dissent, they wrote:

“Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.”"

Hagar said...

It used to be that U.S. Senators were all over the news with pronouncements and clips from their committee hearings, etc.

Now it is all just Harry Reid, with only Schumer and Durbin trotted out for ceremonial occasions to stand a little behind and to either side of him, but they do not get to speak.

What happened?

(And this must be very hard on some of them, especially Schumer!)

bgates said...

A textualist may think he can discipline legislators into writing their statutes clearly, but what can such a project mean with a sprawling text like the Affordable Care Act?

http://en.wikipedia.org/wiki/Void_for_vagueness#Unconstitutional_vagueness

MountainMan said...

I am totally with "The Godfather" at 10:23 AM. He nails it.

These issues always bring to my mind the following:

"The Constitution was made to guard the people against the dangers of good intentions." - Daniel Webster

Unknown said...

What of the human cost when the law is just so much silly putty?

Probably I lack standing even to ask.

Matt Sablan said...


“Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.”"

-- A federally run exchange in a State is not a State run exchange. If I run a business out of your house, you are not running my business. Unless there's a lot of context missing, I think the quote has been misread.

Here, by the way, is the site I think you plagiarized from.

Reading the rest of the same paragraph in the dissent leads you to this, though at page 170: "Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens."

In other words, those not part of a State program are not eligible for subsidies, specifically related to Medicare. Not only that, the number cited is not just STATE exchange subsidies, but ALL subsidies provided by the government. Further in the dissent, it states: "Thus, the federal subsidies must be
invalidated."

If the original author bothered to read, they'd realize that the justices HAD already spoken about the subsidies, but not the way the author had wanted.

Saint Croix said...

I'm trying to imagine what this out-and-proud conservative creative-rewriter of statutes would do.

That's easy. He'd bring back Lochner!

In fact Roe excites some on the right (e.g. Richard Posner) who would love the opportunity to impose his economic solutions on the country.

I believe Posner was kept off the Supreme Court by pro-lifers. In fact it might have been healthier to put Posner on the Court (instead of, say, Souter or Kennedy). Posner would have shaken things up quite a bit. The man's capable of creating baby markets.

Roy Lofquist said...

Damikesk (9:14)

"But if you go by the texts, everybody knows the rules up front which is pretty key for the whole law thing. If you look at legislative intent, then legislators can lie about what they want and have unelectable judges and bureaucrats subject us to bad lAws."

Which is precisely what Justice Roberts did in his opinion which ruled that certain revenue raising provisions of the ACA were in fact taxes despite the accompanying, adjacent language stating that "this is not a tax".

Federalist #78

http://www.constitution.org/fed/federa78.htm

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

"But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body."

Further:

"The Federalist Papers, as a foundation text of constitutional interpretation, are frequently cited by American jurists. Of all the essays, No. 78 is the most cited by the justices of the United States Supreme Court."

http://en.wikipedia.org/wiki/Federalist_No._78

I'd say that #78 makes very clear that the founders were strict textualists.

The Federalist Papers achieved their primacy due to the fact that the ratification of The Constitution was a precarious process. The papers were written to sway the States legislatures by explaining its meaning and answer the objections raised by various factions.

See: http://en.wikipedia.org/wiki/Anti-Federalist_Papers

It can be argued that since the Papers were a decisive factor in achieving ratification that they should be considered an extension of The Constitution because that's what the States agreed to.

Left Bank of the Charles said...

Let me get this straight. No tax credits for red states who refuse to set up state exchanges, but only because Republican judges insist upon that result.

Maybe this was a drafting error, or maybe it is a Trojan horse.

Anonymous said...

" It is because Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will ignore the law, the Constitution, and respect for democracy, and instead go with their personal political desires."

FIFY, Rick.

Ann writes:
What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?

Because the clearer way to put it is: Republicans appoint honest judges, and Democrats appoint black robed politicians who routinely violate their oaths of office.

It is not legitimate for a judge to ignore the law or Constitution just because it violates that judge's preferences or beliefs. It is not legitimate for a judge to substitute his or her judgment in place of the democratic process.

You want to make decisions about what the law should be based on your personal beliefs? Great. Run for office. If you win, you get to do that. IF you violate the voters beliefs, they get to vote you out.

Anonymous said...

"Does Professor Hasen really want this character's "big picture" trumping the words of legislatures?"

Of course he does, so long as that character agrees with Professor Hasen.

Like most if not all leftists, Professor Hasen has no respect for the concept of rule of law, no respect for democracy, and no respect for the Constitution. All that matters to him is getting what he wants.

It's why I no longer trust anything he writes. Because you can never trust someone who has let it be know he respects no objective bounds.

Ann Althouse said...

My question "What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?" is primarily aimed at Prof. Hasen as the next question indicates: "Why isn't that what a liberal should like best (aside from preventing any Republican Presidents from ever appointing any judges)? "

cubanbob said...

Ann Althouse said...
My question "What, if anything, is wrong with Republican Presidents choosing textualists and Democratic Presidents choosing nontextualists?" is primarily aimed at Prof. Hasen as the next question indicates: "Why isn't that what a liberal should like best (aside from preventing any Republican Presidents from ever appointing any judges)? "
7/24/14, 1:49 PM "

Just imagine if the next president is a libertarian-conservative who decides to selectively enforce the whole edifice of the welfare state along this lines? What's to stop him if the laws only mean whatever the administration in charge thinks it means? Professor Hassen symbolizes what is wrong with legal education and scholarship. As for Congressional intent, as per Nancy Pelosi-we have to pass the legislation to see what's in it- how can a court determine what Congress intended if the Congress itself didn't know what it passed? The reality is they knew what they passed, they just didn't realize the majority of the States refused to buy the pig-in-the-poke.

Unknown said...

Could someone contact Crack and tell him a bad tempered, ignorant, and stupid child has hacked his account and he needs to change is password?

machine said...

"nontextualists"

"...ignore the law or Constitution just because it violates that judge's preferences or beliefs."

"...substitute his or her judgment in place of the democratic process."


hmmm...easy to win arguments when you make up the other side's arguments.

Saint Croix said...

Here is Posner v. Scalia

Michael said...

Hasen's position (and Crack's) only make sense if you assume, as they do, that the "Progressive" view of any issue is necessarily correct and that how we get to this correct result is unimportant. But if you believe that none of us can see the big picture with clarity, and that we inevitably proceed through trial and error, then process and the rule of law become more important in the long run than immediate policy outcomes.

Rich Rostrom said...

The turning point wasn't Roe v Wade, it was Griswold v Connecticut.

That case established the precedent that the courts are the proper venue for removing bad laws.

Which is evil. The merits of a law should be decided by the people, through the legislature. Sliding any part of this to the courts is treason to democracy.

Anonymous said...

The fools of the left never cease to amaze me. They are convinced there will never be another conservative president. This clears a path for them to come out of their closets. No more pretending like the constitution actually matters. Or means what it says.

Oh, but just wait until the next conservative or libertarian gets in. The howls of outrage when they disagree on interpretation.

The hypocrisy, thanks to the internet, is going to be epic.

Saint Croix said...

Republican presidents now appoint judges who stick to textualism even when it leads to harsh results while Democratic presidents are more likely to choose judges who will look at the big picture and the human costs, when they’re parsing the words of a law.

Posner has always been the latter. He's always been a right-wing "big picture" guy, somebody who wanted to impose his economic theories on our country. Kind of a right-wing version of a Marxist. He clerked for William Brennan, so maybe that is a clue about his thought process.

I swear to God I thought I was making up the baby market insult as something that Posner might do, because he's so obsessed with money. Turns out the damn idiot has already advocated baby markets. I'm sure that went over well with pro-lifers.

Posner's support for partial-birth abortion ended any hope he might have had that a Republican would nominate him for the Supreme Court. You can sense his antipathy to pro-lifers here.

To me that article is really embarrassing. The case he is criticizing, McCullen v. Coakley, was a 9-0 opinion. Posner is attacking free speech, attempting to silence pro-lifers because they are pro-lifers. He calls them "nuts" and says that people have a right not to be upset by speech. He says conversations can't happen on sidewalks.

It's maybe the most disgraceful article I've ever read by a federal judge. It stinks of prejudice, of anti-democracy, of rancor, of unfairness. None of that would matter, actually, if he felt bound to follow the law. The original John Marshall Harlan thought white people were superior to black people, but he knew what the law said.

Reading and respecting the words of other people are critical to law. If Posner can't do that, he really should not be a judge, regardless of how smart he might be.

Anonymous said...

Left Bank of the Charles said...

Let me get this straight. No tax credits for red states who refuse to set up state exchanges, but only because Republican judges insist upon that result.

Ah, yes, those "Red States" like Oregon ad Maryland, which are both dumping their State Exchanges and going on the Federal one, because they're just too damn incompetent to put together a working Exchange.

Unknown said...

"Did anyone even read it?"

“But we have to pass the bill so that you can find out what is in it – away from the fog of the controversy.”

Because people can't read and figure out what the likely (or even just possible) consequences might be.

Just remember, Althouse, your judgement led you to vote for them to have the Presidency.

Unknown said...

-----At least mine serves a real purpose.

Fucking knee-jerk reactionary assholes,…---

This entire thread is a surreal mix of abstract and Crack's concrete, drooling racism.

Thanks for making it real, whack job.

Michael The Magnificent said...

A textualist may think he can discipline legislators into writing their statutes clearly, but what can such a project mean with a sprawling text like the Affordable Care Act? Did anyone even read it? Was any legislator in a position even to perceive the loose ends that needed tying up?

This mouth-breathing, knuckle-dragging, extra chromosome, troglodyte, Neanderthal, regressive, reactionary conservative had the audacity to read the first 300+ pages (which was all it took to guage the disaster that was to unfold), and I wrote lengthy emails to both Feingold and Kohl pointing out the many perverse incentives and the likely (unintended?) consequences of them that I had run across, but neither of those arrogant pricks seemed the least bit interested.

And to answer your question, both of those assholes were in a unique position to demand a fix to the legislation, had they the faintest interest in doing so, especially given that they had precisely 60 votes, and not one vote to spare.

Good, bad, or otherwise, they were eager to jam this monstrosity, with all of it's obvious flaws to anyone with the ability and willingness to read it, straight down our throats, consequences be damned.

Questions to you, Professor: How many pages of the legislation did you read, and how many letters did you write suggesting amendments?

machine said...

Where in the Constitution does it state that corporations are persons entitled to constitutional rights?

Matt Sablan said...

"Where in the Constitution does it state that corporations are persons entitled to constitutional rights?"

-- Not word for word, but that is an obvious reading of freedom of association. Simply being part of a club doesn't mean the government can raid your clubhouse or quarter troops in your club lodge, ere go, being a club doesn't cause you to "lose rights."