Judicial reasoning: and then there’s Janus v. AFSCME
The Supreme Court finished up the liberty trifecta with Janus:
…[H]as there been a bigger win for small-government, real-life conservatives over the past few decades than the Janus v. AFSCME ruling? The decision not only fortifies the First Amendment by explicitly finding compelled speech unconstitutional, but also calls out the Left’s authoritarian political machinery, which has been holding many American communities, school systems, and workers hostage for decades.
“It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment,” Justice Samuel Alito wrote in the majority. “Those unconstitutional exactions cannot be allowed to continue indefinitely.”…
The Janus ruling also stipulates that employees must now affirmatively opt-in — rather than having to opt out — of unions before having to pay fees.
But in a dissent,
“The First Amendment,” writes Justice Elena Kagan, “was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.” The idea that the court should decide who deserves First Amendment protections, or that those protections should be contingent on the vagaries of “democratic governance,” whatever that means, is as corrupt as any of the dumb things Trump has ever said about free expression. The Supreme Court is built to withstand the whims of democracy, of majoritarianism, not to surrender to them.
The strange thing about the cases decided recently is that they don’t deal with difficult, complex, or esoteric legal principles, as so many SCOTUS cases do. These particular ones are relatively simple and easy for the layperson to understand.
A bit of personal reflection here. I’m not a practicing lawyer and never was, but I graduated from a well-known law school (long ago) and have more than a passing familiarity with law, legal reasoning, and appellate opinions. When I was in law school and read those opinions and dissents, I often leaned one way or the other in terms of the way I thought the case ought to have turned out. But I usually found the reasoning on both sides to be fairly convincing and fairly tight, especially in SCOTUS cases. Sometimes an opinion would be a bit of a stretch, but it was still recognizably smart. Only a few were what I’d call bad in the quality of their reasoning, even if I disagreed with the outcome.
But that quote from Kagan seems to me to be a travesty. The protections in the Bill of Rights were meant to act as a check on the tyranny of unbridled democracy. That’s a basic, basic principle of our system of constitutional law and our history.
Does Kagan not understand that? Of course she does. But when people desire a certain outcome they can convince themselves of almost anything. Perhaps lawyers are especially good at that.
[NOTE: Likewise, the travel order case Trump v. Hawaii features dissenting opinions that are simply awful in terms of their legal reasoning. I don’t usually say that, even about opinions with which I disagree, but that case should have been a 9-0 decision in Trump’s favor. The dissenting justices stretched the law to the breaking point:
The dissenters, led by Justice Sonia Sotomayor, try to get around this by claiming that the law has no rational basis. But they do so, as Roberts notes, “by refusing to apply anything resembling rational basis review.” What they are really doing, as Roberts writes, is expressing their disapproval of the order and their opinion of the man issuing it. They “challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters,” the chief justice concludes.
There is a difference between thinking something is a bad idea (and you could easily argue that the travel ban is a bad idea) and claiming it has no rational basis and is therefore void. The plaintiffs, the district court, the Ninth Circuit, and Sotomayor are committing a cardinal sin of jurisprudence: coming up with the answer they wish was true and working backward to invent a legal justification for it.
But even if they are correct that the travel ban order is terrible, that does not mean it is illegal or unconstitutional. We in this country are governed by laws, not by a judge’s personal morals.]
And terrible decisions like Filburn, Kelo and King v. Burwell bear all the hallmarks of that kind of reasoning.
This decision makes me happier and more hopeful than any SCOTUS decision in my lifetime.
Wasn’t Kagan at Harvard law when Tribe was caught plagiarizing his book? I don’t recall anything happening to Tribe when Kagan was in charge, not even a little admonition of “naughty, naughty”.
Just as the Democrats in congress have been voting in lockstep, with no or at least almost no, defections, the liberals on the court have done the same.
How sad that the premier legal entity in the U.S. is populated by so many who vote their preferences rather than the law or the Constitution.
Those opinions you referred to are real travesties and should embarrass the law schools of those who wrote them. But of course they don’t so it’s doubly sad.
“The plaintiffs, the district court, the Ninth Circuit, and Sotomayor are committing a cardinal sin of jurisprudence: coming up with the answer they wish was true and working backward to invent a legal justification for it.” [Neo]
and that is no different than believing that regret after consensual sexual intercourse is rape.
As Brian Swisher points out about (@3:05) there are too many examples of that kind of reasoning on the left.
“Those opinions you referred to are real travesties and should embarrass the law schools of those who wrote them. But of course they don’t so it’s doubly sad.” [Irv @3:51]
Amen to both points.
This decision sounds like a biggie. I wonder if it will cause as much apoplexy as Citizens United. Remember that one caused Pres. Obama to publicly slam the SCOTUS, while standing in front of them, in his SOTU speech. Is that unprecedented; did FDR do it?
Here is another big overreaction to Citizens United that no one is talking about, though I guess the main part is old news.
John McCain was so flipped out over Citizen United undoing part the McCain-Feingold law, that he had his top aid, Henry Kerner, collaborate with Lois Lerner to harass tax-exempt advocacy groups out of existence. I wonder if Kerner expressly asked her to target conservative groups only?
This scandal should be rebooted as the Kerner-Lerner scandal.
IANAL and thank my stars every day for that, but even I could see that the Sotomayor dissent in the travel order case was nothing more than a pissy rant. And the Kagan bit is no better.
They sound like a wailing 2-year old stomping his foot and crying, “But I WANT it,” when told he can’t have it.
They truly have no legal arguments for the perpetuation of most of the decades-long government explosion (be it in the form of statute, regulation or policy), because little of it was legally underpinned from the git-go — it just sounded good. And bought votes.
Ray, it was worse than that. Tribe had the book ghost written by an assistant, in addition to the plagiarism. An assistant prof would have been out of there the next day, but the fix was in for Tribe. Kagan, a former student of his and also one of his ghostwriters, was Dean of the Law School. There was six months of “investigation” and then it died.
Once again, we let them frame the discussion about the travel ban with the term Muslim-majority countries. Why wasn’t this countered at every chance with “No, dysfunctional countries. Many Muslim-majority countries have functional governments that can provide the data we need for vetting.”
A DC attorney named John Banzhaf has written about “Trumplaw”.
Whatever the real law is, you make something up to hinder Trump, and call it law.
They both demonstrate their incompetence and serve as a definitive example of author R.A Heinlein’s maxim: “Man is not a rational animal, he is a rationalizing animal” “Stranger in a Strange Land”
“The strange thing about the cases decided recently is that they don’t deal with difficult, complex, or esoteric legal principles, as so many SCOTUS cases do. These particular ones are relatively simple and easy for the layperson to understand.”
* *
And a lot of them that seem to be complex are only that way because the Court twists themselves into pretzels to make the decisions.
Brian mentioned a few; I’m sure we all have a little list — but it seems to me maybe GWB had the right idea about Harriet Myers: maybe a bit more “mediocrity” (she wasn’t) and less stellar “credentials” would make for more common sense rulings.
TommyJay Says:
June 28th, 2018 at 4:46 pm
Saw that about McCain and Lerner — I wonder sometimes if he would have been any better for the country than Obama — at least we could honorably dissent from the Democrats’ agenda.
Would there have risen up a Never McCain wing of the GOP?
Doubtful.
expat Says:
June 28th, 2018 at 5:02 pm
Once again, we let them frame the discussion about the travel ban with the term Muslim-majority countries. Why wasn’t this countered at every chance with “No, dysfunctional countries. Many Muslim-majority countries have functional governments that can provide the data we need for vetting.”
* * *
It hasn’t worked for other rhetorical hay-makers, like calling pro-choice the more accurate “pro-abortion,” or labeling the left’s Dreamers as “illegal aliens.”
The attempts to relabel are smothered by the media, every time.
“The First Amendment,” writes Justice Elena Kagan, “was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”
What a frightening statement. What is equally frightening is the thought of Hillary winning if this is an example of leftist thought.
This isn’t Janus, it’s the pregnancy clinic, and it’s old, but I hadn’t seen this report about Sotomayor – the wise Latina who goes to the internet to get her rulings.
https://www.nationalreview.com/corner/justice-kennedy-rightly-rebukes-justice-sotomayor-for-surfing-the-web/
“Yesterday’s oral argument in National Institute of Family and Life Advocates (NIFLA) v. Becerra featured an interesting and important moment unrelated to the core First Amendment issues in the case. Early in the oral argument, Justice Sotomayor went outside the evidence submitted to the court to ask NIFLA’s attorney, Mike Farris, questions about a website of a pro-life pregnancy center. Apparently, she’d been cruising the web on her own.
Moments later, Justice Kennedy responded, telling Justice Sotomayor, “Well, in this case I didn’t go beyond the record to look on the Internet because I don’t think we should do that, but I do have a hypothetical.” .. ‘
I’m a lawyer (though I write about the law rather than practicing it) AND a public employee — I’ve been paying agency shop fees to the union for a long time. It’s going to be such fun to stop. You should see the sulky emails the union has been sending out for the past few months as this decision loomed. Tee hee.
What struck me about the majority is that line Neo quoted about the “billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment” and the “unconstitutional exactions.” Pretty strong words — and almost calculated, it seems to me, to fuel the class action suits going on in the various agency shop states seeking to get that money back.
As for Kagan and the proposition that the First Amendment was intended to protect government rather than to “undermine” it, the stupidity is breathtaking – but not surprising at all. The Left has had it in for the First Amendment for quite some time now.
The edit function in the comments sometimes works these days and sometimes doesn’t, it seems. Today is one of the days when it doesn’t.
I just want to add that what the Left hates about the First Amendment is precisely the opposite of Kagan’s interpretation: that it strengthens citizens AGAINST their government. That’s how it “protects democratic governance” – by empowering the people to speak and act without governmental controls, so that they think and vote as free people rather than as sheep. And that’s exactly why the Left, in its current authoritarian guise, fears it.
“coming up with the answer they wish was true and working backward to invent a legal justification for it.”
This “mortal sin” is the essence of liberal jurisprudence in general, including the most resonance opinions of Antony Kennedy. And this includes his verdicts on abortion and same-sex marriage.
I avoid going to court as much as possible, because my experience has been that in any case in which there is the tiniest bit of wiggle room in the law, the judge will “com[e] up with the answer [he or she] wish was true and work backward to invent a legal justification for it.”
Sergey said…
Exactly.
And I would go further: The problem with Kennedy and the left is not merely that they start with the case-outcome they wish for and reason backward from it, adopting whatever tendentious quasi-legal, quasi-philosophical jargon will justify that outcome.
If that were the whole of the problem, it would still be possible that the cases had good outcomes, albeit outcomes achieved through dishonest argument.
But that’s not the whole of the problem, because there is also the issue of how they decide what case-outcome they hope to justify.
For example, Kennedy wanted American courts to treat gay “marriage” as a right. So he responded by “reasoning” his way from a hodgepodge of sophomoric philosophical speculations.
But, why did he want that outcome?
Simple. He wanted the outcome which would bring the most approval, and the least emotional upset, from the social set and class to which he belongs. This is how he, and that social set, derive their sense of “the good” (in the Nicomachean Ethics sense of “the good”).
Now even that might have worked out okay, had Anthony Kennedy’s social set and class been chock-full of sober-minded moral philosophers with a deep, insightful, logically-consistent grasp of what is good for human beings, families, and societies.
But it isn’t.
Anthony Kennedy’s social set and class, unfortunately, arrive at their own notions of “the good” in exactly the same way as Kennedy arrived at his desired outcome: On the basis of what plays well, socially! They don’t arrive at their ideas of “the good” via any rational or principled methods. No, they just emote their way to their notions of “the good” by seeing which comments or notions play well, or poorly, in conversation with others.
(If one has a principled opposition to treating homosexual partnerships as identical to traditional marriage, those principles will inevitably result in hurt feelings or awkward pauses at dinner parties! We can’t have that! It’s far better — it plays better — to have different principles.)
The telos of human beings qua human beings, or of human sexuality, or of the family, or of the larger society, or of government, or of law, is simply not considered. Most of them have no notion how to talk about such things. They are putatively our “educated class,” but in this area, they are mere “skulls full of mush.”
Consequently, the opinions of this class about legally obligating states and businesses to recognize “gay marriage,” or about immigration law, or any other such issues, has no necessary connection to what is good for humans, families, or society. The whole social set could have just flipped a coin to arrive at their collective opinion: The outcome would have been equally justified.
Anthony Kennedy’s desired-outcome-of-the-case, likewise, is equally disconnected from “the good.”
So what we have here is judges, who wield astonishing power over the future of our country, adopting their desired outcomes for largely random reasons, and then achieving those outcomes largely via sophistry.
Sigh.
R.C.: This is because their idea of “good” is purely pagan, divorced from higher meaning of human life which is beyond sensual or simple emotional satisfaction. This is common failure not only of liberalism, but of humanism as such. European Enlightenment of 18 century was in large part a historical regress from Christian moral philosophy to a pagan one.
Sophistry was a prominent feature of the late Antiquity during moral and political decline of Athene in time of Socrates and Plato. So modern Progressives only mimic and repeat this downward trend of late-stage Hellenistic paganism.
Sergey – the cycle through spiritual (religious) beliefs to humanistic ones and back again (with side trips through quasi-religious paganism) is very ancient, and always happening, although at different times in different cultures. This creates undulating waves that sometimes bottom out at the same time (like economic cycles), which is when we really notice the declines.
Roberts does an excellent job of destroying the Sotomayor/Kagan dissent in the travel order case. That couldn’t have been too difficult because they simply argue by assertion and offer no proof any of their assertions are true which is childish. Even a non-lawyer can see that their dissents (and their decisions should the be in the majority) are simply expressions of their politics and have nothing to do with the Constitution or subsequent statutes.
One of their assertions in the travel order case is that the travel order is over broad. In fact it’s not broad enough. Islam has from the start defined itself as in opposition to Christianity. And Judaism, but primarily Christianity. And there’s a political reason for that. All the evidence points to Caliph abd al Malik who reigned from 685 to 705 as the man who initiated the fabrication of Islam. And that Muhammad if he existed at all had nothing to do with Islam or the Quran during his lifetime from 570 to 632.
Abd al Mailik built the Dome of the Rock mosque by 691. The only part of the original building that remains is the inner ambulatory. There are a great many inscriptions on it. Muslims will tell you the Dome of the Rock is sacred because that is the spot where Muhammad ascended to heaven during the Miraj or night journey. Funny; if that’s the reason it was built you’d think at least one of the inscriptions would mention it. But none do. Instead almost every single one is a screed against Christianity. Because by then the Persian empire had been utterly defeated but the Byzantines had not. So they naturally were Abd al Malik’s enemy number one. And the Byzantines were Christian.
Back before there were constitutions it was religion that held empires together. This is the main reason that Christians were so heavily persecuted by the Romans before Constantine. Christians refused to worship their pantheon, refused ot participate in the pagan religious festivals, and worst of all refused to worship the emperor as a god. This constituted treason in Roman eyes.
Abd al-Malik understood that the Arabs had created an empire, but didn’t’ have a religion that would hold the empire together. So he set about inventing one, and that religion needed to breed hatred for his Byzantine enemies and indeed the entirety of Christendom. The first mention from an Arab source of Muhammad is in fact in the inscriptions in the Dome of the Rock, but again there is no mention of the miraj. There were non-Islamic sources that mentioned a Muhammad back in the mid seventh century. But they only mention him as a warlord. And we don’t know which Muhammad they were talking about; you have to remember that Muhammad was not yet a proper name but a title. It means “the praised one. At the time Arabia was over run with men calling themselves Muhammad. There are even coins collected by various museums that show Christian rulers that call them Muhammad.
By 637 the Arabs had conquered both Damascus and Jerusalem. The conquered people chronicled the Arab conquests in great detail. Yet neither John of Damascus and Sophronius, Patriarch of Jerusalem at the time, ever mention the idea that the Arabs were doing it in the name of some new religion. The Arabs never referred to themselves as Muslims. Both these chroniclers recorded how the Arabs did refer to themselves and it was always as Ishmaelites since they believed they were of the line Ishmael, Hagarines after Ishmaels mother, Saracens, and a couple of other terms. But never Muslims. They never mention anything about a Quran, a prophet Muhammad, or Islam. You would think if the Arabs were conquering in the name of a new religion they would have mentioned Muhammad since it was only five years after the theoretical prophet theoretically died. As far as religion goes, based upon their observations John and Sophronius thought they practiced some sort of perverted, heretical version of Christianity.
But if they now had a prophet, then their prophet needed a book. The traditional Islamic narrative is that the Caliph Uthman compiled the Quran circa 650 but there is no Quran in existence that dates to that era. And there should be. There are complete Bibles as well as copies of the New Testament in the British museum in London that are centuries older than even Muhammad’s birth. The secret to their longevity is they were written on Vellum or Parchment; specially prepared animal skins. These last a long time and is why important documents were traditionally written on them. It’s the reason, for instance, that diplomas are nicknamed “sheepskins.” The Caliphs maintained records that predate Abd al Malik, they still exist because they’re written on vellum. If Uthman had compiled the Quran his Qurans would have been written on vellum. And the provinces he supposedly distributed copies to remain, with the exception of Jerusalem, firmly under Muslim rule so there is no earthly reason they shouldn’t still exist. Where are those Qurans?
In fact Turkish Muslim scholars have examined the earliest Qurans extant and have determined there is no Quran that predates the reign of Abd al Malik. The Sanaa manuscript is the oldest Quran. It may have begun to be written in the last two decades of the seventh century. And we only know this because it only exists as a palimpsest! Vellum is extremely expensive so it was often washed off and reused. The undertext is called a palimpsest. Scholars have learned that if they use UV light they can sometimes read the palimpsest without damaging the document. This is the case with the Sanaa manuscript. The problem for Muslims is that the palimpsest completely disagrees with the Quran that overwrites it. And no page of that Quran is older than the early eighth century. In other words they possibly date to the last year or two of Abd al Malik’s reign or the first few years of his son’s reign. And based upon examination of the script, as some of the pages are written in script that didn’t exist until the Abasid dynasty came to power in the latter half of the eighth century, there can be something close to a century difference between one page and the next. Others of the earliest Qurans date from the mid eighth century to early ninth century and they too show constant revision. And just as the palimpsest disagrees with text that overwrites it in the Sanaa manuscript, all these early Qurans differ with each other. It would be a while before the Muslims got their story straight.
I went through all this history to demonstrate that rather than some sort of scripture the Quran is primarily a political document. And it was constantly being altered during the first two centuries or so of its development to suit the political needs of the reigning Caliph at the time. And one constant need was waging jihad against Christian Europe.
Yes, they waged Jihad against others as well, primarily in India. But they didn’t invade India until 1000 A.D. and by then they had completed the Quran’s development and Muslims had come to believe that it was the eternal, uncreated word of Allah. After all, you can’t tell the adherents that the Quran is the eternal, uncreated word of Allah and continue to revise it.
So the question is, can we let any Muslims into this country since they believe in a creed that commands them to oppose the values of the very countries the are flowing into since they have the superior system? They believe that the Quran is a perfect copy of the eternal Quran that has always existed with Allah on tablets in heaven. It isn’t true, as I’ve demonstrated, but they believe it.
I agree with this excellent article by Ed Driscoll.
https://pjmedia.com/homeland-security/can-muslims-in-the-west-ever-really-be-de-radicalized/
We have of course been lied to about Muslims. We are constantly told that ninety nine percent of Muslims are peaceful and tolerant. Numerous polls of Muslims both in the Islamic world and the West show that isn’t true. In Britain, the country discussed in Driscoll’s article, the government used to poll Muslim attitudes beginning shortly after 911. At first only fifteen percent of Muslims had what they called radical beliefs. By 2006 that number had risen to forty five percent and they stopped polling Muslims at that point. Because they didn’t want to know the truth, and they certainly didn’t want the public to know the truth because that conflicted with their lies. Twelve years on after the last British poll what do you imagine the number of radical Muslims happens to be. Considering how rapidly it rose in the five years they did polling it’s certainly well over fifty percent.
One stat Driscoll doesn’t mention is that in addition to all those radical Muslims that pose a danger in Britain two thousand Muslims have left Britain to join IS in Syria. Another two thousand are in prison for trying to join IS in Syria. How many Muslims are serving in the British armed forces? Four hundred and fifty. So, where to these fulls running the British government imagine the loyalty of the vast majority of Muslims in Britain lies?
In the Islamic world, polls show that about half of the world’s 1.6 billion Muslims share the beliefs of terrorist groups (including the Muslim Brotherhood which IS a terrorist group despite the Obama administration’s denial of that fact). They believe it’s their duty to impose Sharia wherever they go, they believe adulterers must be stoned to death, they believe in honor killings, they believe that apostates should be killed, they approve of suicide bombing, the whole program that AQ and IS believe in. They just haven’t taken up arms. Yet. And there are many reasons to believe they will one day, as per the Quran and ahadith Jihad is a duty imposed on all Muslims. As far as the other half goes we shouldn’t take too much comfort in the fact they aren’t on board with the full Jihadist program since they are onboard with parts of it to a greater or lesser extent. And they don’t have a theological leg to stand on for not accepting it all.
So since Erdogan is right and to be a Muslim means to believe in Islam in its entirety, what must we expect as we keep importing Muslims?
Of course the SCOTUS would never go as far as we really need to go since they refuse to believe that Islam is violent and moreover they refuse to even study the matter, and insist it’s just another religion, they like the British government would insist on suicide.
Excuse me. The article I cited was written by Michael Walsh.