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Judges Standing Up to Unfairness:
I was very interested in Barack Obama's statement last night about what kind of judge he would appoint to the bench:
If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.
  The notion that a court should craft a legal remedy if doing so "stands up" to "unfairness" brings to mind the poll about the proper role of the Supreme Court that I linked to a few weeks ago. Recall that Rasmussen Reports conducted a survey of 1,000 likely voters and asked survey respondents the following question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
  Recall that the responses revealed a sharp difference between the views of McCain supporters and the views of Obama supporters:
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama's supporters agree. Just 11% of McCain supporters say judges should rule based on the judge's sense of fairness, while nearly half (49%) of Obama supporters agree.
  On this issue, it looks like the candidate and his supporters are very much on the same page.
FantasiaWHT:
I wonder how much of this is related to people's limited understanding of the differences in trial and appellate courts.

I have absolutely no problem with trial court judges using fairness, empathy and mercy to make decisions about which they have discretion.

I absolutely do not want appellate courts considering those issues (except the consideration to back out of the way when a trial court has discretion)
10.16.2008 1:36pm
Viceroy:
I think there's a middle ground that the survey does not encompass. Then again, simplistic survey - make it easy to make a simplistic point.
10.16.2008 1:37pm
Steve:
I think there's a lot more common sense and fairness in statutory interpretation than people are willing to give credit for. The Ledbetter case is a good example. The statute was ambiguous, and reading it as the majority did achieves a manifestly unfair result, where the time for you to challenge a discriminatory pay decision can easily expire before you have any idea you've been discriminated against.

If Congress clearly wrote the statute to mandate that result, then so be it, but they didn't. It could have been interpreted either way, and I want judges who will make the common-sense interpretation that avoids an unfair and unjust result, not judges who will strain to find a pro-business outcome no matter what it takes.

I liked Roberts' common-sense dissent the other day where he opined that we ought to recognize that experienced cops know a drug deal when they see one. I wish he would show the same capacity for common sense in other contexts.
10.16.2008 1:42pm
APetersen (mail):
Shouldn't Obama also say that he supports judges who enforce the Constition? And, if asked to clarify, remind us of the invisible Constition as Professor Tribe recently wrote about. If you can't see it, it is simply because you are too ignorant or not worthy enough. - HC Andersen
10.16.2008 1:47pm
NI:
Anyone with a law degree knows that a judge can always find a rationale to do pretty much whatever he likes. Maybe that shouldn't be true, but that's life. Since that is cold, hard reality, I'd far rather have judges do as they damn well please in such a way that it produces a fair result than not. On this issue, I agree with Obama.
10.16.2008 1:47pm
HoyaBlue:
It can't do both?
10.16.2008 1:48pm
HoyaBlue:
Also, the question presumes a static 'what the Constitution says' that is incompatible with justice and fairness.

Plessy and Brown are both theoretically about 'what the Constitution says." One is fair and just, one is not.
10.16.2008 1:51pm
FantasiaWHT:

Maybe that shouldn't be true, but that's life. Since that is cold, hard reality, I'd far rather have judges do as they damn well please in such a way that it produces a fair result than not.


Wow. Just, wow. So would you favor complete abolition of a legislature then?
10.16.2008 1:52pm
Law student:
Wow. You have to wonder what happens to the liberals' sense that judges should decide according to what's "fair" when confronted with conservative judges disregarding the law to be "fair"...
10.16.2008 1:52pm
John Burgess (mail) (www):
FantasiaWHT: Of what use is a legislature when there's the proletariat to determine what is fair? The proletariat's will is made manifest in the person of The One. All is in order; all is under control. Don't worry your sweet little head about it.
10.16.2008 1:58pm
Terrivus:
I'd far rather have judges do as they damn well please in such a way that it produces a fair result than not.

No matter what might be written down according to a previously agreed-upon agreement?

If X, a lower-income worker, takes out an auto loan, but because of a completely unexpected health scare doesn't have the money to make the payments, should the bank be unable to repossess the car for failure to make payments on the loan, despite the terms of the contract? After all, that's the "fair result," right? X's medical situation was entirely unexpected, and the car is necessary for her to get to her job. The bank is a huge corporation that won't miss the few hundred dollars a month in payments. That's fair, right?

But, um, what about what was written down in the contract? Do we just ignore that? If so, why? And if that becomes the law, how is this fair to the bank's shareholders -- which, via pension funds, mutual funds, etc., covers a lot more people than just X?

I'd love to hear your response.
10.16.2008 2:00pm
FantasiaWHT:
Isn't the Ledbetter decision "fair" to the employer? Why does fairness always have to work out in favor of the plaintiff in a liberal's mind?
10.16.2008 2:00pm
Crazy Libertarian:
"On this issue, it looks like the candidate and his supporters are very much on the same page."

What?!?

I don't see how you can say that, when not even a majority of his supporters agree with him.

Maybe you were talking about McCain.
10.16.2008 2:00pm
DangerMouse:
Wow. You have to wonder what happens to the liberals' sense that judges should decide according to what's "fair" when confronted with conservative judges disregarding the law to be "fair"...

As I said in the other thread, liberals think "fairness" is a synonym for "liberal." You can't be fair if you're a conservative. It's axiomatic for them.

I could easily argue that it's "fair" to let a baby live and that the side of "fairness" should fall to the baby if a mother is pondering an abortion, because the mother would experience an inconvenience for 9 monthsd while the baby is dead forever. But as I said, "fairness" only means "liberal."
10.16.2008 2:02pm
DiverDan (mail):
This is the stark difference between those Americans who believe we ought to be a "Nation of Laws" and those who believe we ought to be a "Nation of Men". Someone ought to remind them that there is no such thing as equality under the law if the law itself becomes meaningless. And for those who admire judges who will seek "fairness", they would be well advised to remember that there is no objective definition of what is "fair." There were a whole slew of judges in the South during the 1940s, 1950s and 1960s, even well into the 1970s, who thought it was perfectly fair to vigorously enforce Jim Crow laws, and keep Blacks out of the voting booth and out of the white public schools. I'd much rather trust the law than the personal opinion of fairness of someone politically connected enough to get a judicial appointment.
10.16.2008 2:03pm
Jer:
wow. I never thought I would see the day when a national election turned on the policy rational for in rem jurisdiction.

Perhaps VC could host a 4th presidential debate on whether it should be "traditional notions of fair play and substantial justice" or "living notions of fair play and substantial justice."
10.16.2008 2:04pm
autolykos:
The problem with using "fairness" is that everybody has a different idea of what is fair. That's why we defer to the Constitution and statutes, because they allow the legislature to establish by majority vote what they believe to be fair.

As for the legal precedents aspect, that's a liberal talking-point meant to defend Rowe. I don't see any particular reason to defer to precedent from a fairness standpoint.
10.16.2008 2:06pm
Ex parte McCardle:
DiverDan, there is also a stark difference between those for whom law is a tool to achieve certain practical purposes, purposes which change all the time, and those for whom there is out there in the universe some occult entity called "The Law" which can be divined with the right incantations.
10.16.2008 2:11pm
Suzy (mail):
I thought his reference to a woman being treated unfairly was supposed to be a direct reference back to Ledbetter. I take it that this case is supposed to be an illustration of the qualities he values in judges, when he talks about judges employing a sense of fairness when interpreting legislative intent and court precedents. The majority in Ledbetter seemed rather determined to read things one way, based on an overall sense of what they thought was fair, and the minority seemed to want to take other information into account about how the systematic unfairness in salary arose. I don't think you can say that one side or the other was adhering more closely to interpreting the law or the precedents; each side clearly thought that they were doing that. The decision seems to come down on both sides to an overall sense of how pay equity arises and what would be required for fairness.
10.16.2008 2:12pm
RandomGuy (mail):
Many people who agree with the position that ScotUS should make decisions "based on what's written in the Constitution and legal precedents" rather than by utilizing a "sense of fairness and justice" may not understand exactly what following the Constitution and legal precedent means. The respondents who favor justices who follow the Constitution may believe that the Constitution is a static document that protects the rights that they believe are important. The respondents who favor justices who rule in favor of fairness and justice may believe that these are constitutional principles. Indeed, it could be argued that there is some tension between following the Constitution and following legal precedent (Justice Thomas has been complaining about this for years). Basically, the question that the survey asks really just asks people to pick which platitude they prefer -- do courts follow rules or do they do justice? I would argue that this is largely a function of political affiliation. I think that the survey question would need to be more specific in order to get useful responses.
10.16.2008 2:14pm
Ben P:

As I said in the other thread, liberals think "fairness" is a synonym for "liberal." You can't be fair if you're a conservative. It's axiomatic for them.


And a great many conservatives think "what the constitution says" is a synonym for "conservative."

If you remove possible lawyer respondents from the equation, I'd wager that more than half the respondents to the poll mentioned in OK's post above would end up hopelessly confused as to "what the constitution and law" actually say after listening to members of the Supreme Court Bar argue about it for an hour. Nor could they figure it out from a casual reading of the relevant statutes, if the statutory text even exists as such.

Cases make it to the supreme court precisely because they aren't easy. If the question was easy it wouldn't have made it through 2-3 levels of appellate review.

I won't deny that there are cases where the court has more or less "made stuff up" to create a ruling, but to assert that cases reaching the supreme court only consist of arguments between "What the law says" and "making stuff up" is laughable.
10.16.2008 2:17pm
FantasiaWHT:

If the question was easy it wouldn't have made it through 2-3 levels of appellate review.


Have you read many 9th circuit decisions? They tend to get the easy stuff very wrong (and usually in a way that makes liberals very happy about the judges' consideration of "fairness"
10.16.2008 2:29pm
Loophole1998 (mail):
I think Obama was just trying to score political points with the middle class who naturally would want "fair" and "practical" judges and who have no idea whatsoever about concepts like judicial review.

He can't say "strict constructionist," so the opposite short hand talking point answer is "fair."

To get into any further detail regarding the role of appellate judges in our tripartate system would have been futile and counter-productive, given the venue.
10.16.2008 2:31pm
MJG:
That's a ridiculous questionnaire: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?"

It could have been rephrased: Should you follow your oath of office or act willy-nilly?

Now, many conservatives will argue that is what liberals far too often do, but is that what the dissenters in Ledbetter were arguing for? It was a pretty ambiguous statute, and there are not exactly good reasons for saying that women should forego their discrimination claims even if there has undoubtedly been discrimination, simply because the discrimination was done in such a clandestine manner that they were unable to discover it. When did upholding that become "following the Constitution and laws"?

McCain's answer was about the statute of limitations; yes it exists, but there's many examples of tolling the SoL on fairness/awareness grounds. I'm not even saying I agreed with Ginsberg's dissent, but that poll question is incredibly slanted.

The statute at issue in Ledbetter was not so clear that it was a firm choice between (1) the law, or (2) fairness. The text was ambiguous; there were a range of valid textual answers; why not let you answer be informed by what Congress surely meant in an anti-discrimination statute and the patent unfairness of the holding? (The majority didn't say their holding was fair, they thought they had the better reading. Fine, but that doesn't mean it was as clear as they held.)
10.16.2008 2:31pm
Brian K (mail):
Isn't the Ledbetter decision "fair" to the employer? Why does fairness always have to work out in favor of the plaintiff in a liberal's mind?

you might have except for the fact that the empoyer was discriminating. why do conservatives favor discrimination?
10.16.2008 2:33pm
Duncan C. Coffee (mail):
The reason "fairness" doesn't work as a criterion boils down to - the bully on the playground will think it's fair if every other kid gives him half their milk money. Fairness may or may not be compatible with property rights. As soon as property rights take a back seat to fairness, the incentive to complain that the status quo is unfair skyrockets. Fairness is determined by public opinion and public opinion is determined by slanted media coverage. If the TV decides it is unfair for a business to hire and fire who it wants, *poof* everyone decides that that is unconstitutional.

I'm certain if a state tried to establish a religion, put property qualifications on voting, or have its legislature select Presidential electors, current Supreme Courts would strike those things down. There is a part of the Constitution that is not just invisible, but is completely unstated, and that is: no state shall differ from what most states consider to be "liberal" (in the twisted American sense). (They'd probably invoke some stretched intepretation of the 14th Amendment, i.e. "equal protection of the laws means we all have an equal right to live in a liberal state.")

Ways in which it used to be Constitionally permissible for states to be different are no longer Constitutional, yet the people who wanted to annihilate those rights didn't have to pass an amendment to prohibit them. Thus the Supreme Court has executed exactly the kind of centralist / anti-federalist coup that the framers wanted to avoid. This coup has had more or less the effects the framers predicted - every issue being kicked into the judicial arena, and every election other than the Presidency being secondary to the ONE which determines which legislators we will have serving life terms on the bench.
10.16.2008 2:36pm
Mike& (mail):
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

Conservative judges decide cases based on their conception of "justice" all the time. Anyone who has taken crim pro realizes that judges barely pay lip service to the Constitution. Spend a day in criminal court, and watch judges allow prosecutors to commit misconduct daily.

You cons pervert the Constitution daily - when it sends "criminals" to prison. Liberals want to pervert the Constitution, too. They just want judges to cut the little guy some slack.

So who is right? I guess that depends on your First Premise. Should judges only ignore the Constitution when it means The State will be able to imprison people? Or should judges error on the side of protecting the weak (that's you and me) to the strong (The State). People can disagree about which principle should control.

Still, to suggest that somehow conservative judges are more dedicated to the Constitution or rule of law is just completely and totally silly.
10.16.2008 2:37pm
PDXLawyer (mail):
I've always been puzzled by the idea that oppressed minorities (racial, religious, sexual, or other) are better off in a system of flexible standards than one of rigid rules. After all, the more discretion there is in the system, the more likely it is that a disfavored group will come out badly.

I can see how this might work politicaly if your group was sufficiently cynical - that is if the group realized that it was in fact politically favored, but pretended it was oppressed in order to capture the "moral high ground" needed to prevail. But I don't see this happening in real life. Apparently many groups manage to convince themselves that "society" hates them but the government likes them. Perhaps someone with a broader mind can explain to me why this seems plausible.
10.16.2008 2:38pm
Doc W (mail):
McCain's supporters may be on the same page with each other, where they wish their candidate would stand. The McCain-Feingold assault on the First Amendment says otherwise.
10.16.2008 2:41pm
Greg Q (mail) (www):
Yay fairness!

It's unfair that some people should have rent-controlled apartments, and others not. It's unfair that a landlord should be forced to rent out a place at less than market rents.

So let's eliminate rent control.

It's unfair that teh government should be able to force me to give up my house just because they want to build something there. So let's eliminate eminent domain.

It's unfair that I should have to pay more taxes, while getting the same government services, just because I make more. So lets get rid of the graduated income tax.

It's unfair that I shoudl ahve to pay taxes to send other people's kids to public schools, while also paying to send my kids to private schools. Let's force vouchers on every state.

Shall I continue?

We have rule of law and democracy for many reasons. One of them is so we can find out what's currently "fair". If you're a judge, and you're not willing to let The People's decisions on that win, resign.
10.16.2008 2:42pm
Ben P:

Have you read many 9th circuit decisions? They tend to get the easy stuff very wrong (and usually in a way that makes liberals very happy about the judges' consideration of "fairness"


A couple points.

1. Like I said, I don't deny that some cases the court has decided that way. But I will solidly maintain it's a small minority of cases. That's one Circuit, and realistically only a portion of judges on that one circuit. (*cough* Reinhardt *cough*) I don't think it's entirely fair to pick the most liberal and IIRC the most overturned circuit in the country and present it as an example of the system as a whole.

2. I don't have actual statistics, but a great many liberal 9th circuit decisions reversed the lower court and are then themselves reversed by the Supreme Court. Assuming the Supreme Court reached the "correct" result, that's 2-3 that got it right.

3. The liberal bent of the 9th circuit and them being overturned is a self perpetuating cycle. Many litigants in the (very large) 9th circuit territory will make appeals that they wouldn't dream of wasting the resources on in, say, the 4th Circuit. That's not even counting people that deliberately file cases in the 9th to take advantage of a presumed liberal bias. So the 9th circuit will see far more questionable cases than other courts as well.
10.16.2008 2:44pm
DangerMouse:
Shall I continue?

On this blog? Yes, you'll probably have to.
10.16.2008 2:51pm
FWB (mail):
Please point of the "good intentions" clause in the Constitution that gives judges the authority to rule based on what is fair. Is not the law, the law? What is fair to one person is often unfair to another. Thus we reach the point where the law waves in the whims of the people and the judges depending upon the direction of the flow. Or wait, we are already there. Predilections and all that.

Rule of Law or rule of man? Perception or statute?
10.16.2008 2:54pm
Steve:
There appears to be an endless supply of people who believe that the Rule of Law always dictates a crystal-clear answer to every dispute, and the only question is whether we're going to appoint judges who will supply the proper answer or judges who are simply going to make it up out of nowhere.
10.16.2008 2:56pm
c.gray (mail):

I don't see any particular reason to defer to precedent from a fairness standpoint.


One of the primary purposes of the law is to make human affairs predictable. People can plan and order their affairs while on notice of what the rules are, and what the consequences of their decisions will be. A legal system that defers to precedent assists in this goal. A system that ignored precedent would be more unpredictable.

This is NOT an abstract issue. People and institutions often suffer real, quantifiable losses whenever the law gets changed, and those losses rise in inverse relationship to the amount of notice they receive. Insurers find themselves on the hook for billions of dollars in coverage they thought they had excluded, manufacturers find themselves forced to close or even bankrupted, businesses, governments and school districts find themselves stuck paying for expensive remedial measures.

A court overruling a solid precedent provides just about the least amount of notice of a legal change possible. It generally comes as a surprise to those who relied on the precedent. As people generally consider, that's hardly "fair". People are not supposed to be punished for following the rules.
10.16.2008 2:56pm
Ben P:
I also think it's time to introduce an as yet unused word into this debate. Formalism.

There's certainly room for disagreement on this, but I think rants about the supposed outcomes of "fairness" in decisionmaking are somewhat out of place.

I don't see "fairness" and "justice" as necessarily being political means.

I see "fairness" and or "justice" as being the opposite of formalistic legal thinking. In extreme both are bad, but the middle is entirely shades of grey.

If one rigidly applies a rule without any regard to individual circumstances in a case and or the motivations of a rule and why it should apply in a particular case, one could be called formalistic.

On the other hand, if one gives no accord to rules at all to decide on personal preference, one is simply not following the law.

Definitions of fairness and justice may vary from person to person, but I seriously doubt there's a lawyer here that didn't read one old case in law school that caused them to think "why in the world would the court have done that?" If you had a good professor a discussion probably followed about whether or not the court actually did do the right thing, and why they did it the way they did.

Where there's a statute with a substantial degree of ambiguity, (as I stated earlier, I believe the case to be in most statutory or constitutional cases that reach the supreme court) I think the grey area in the statute is necessarily filled in by any judge's notions of fairness and justice.

The difference is how big the particular justice percieves that grey area to be.
10.16.2008 3:02pm
Sarcastro (www):
Boy, fairness sure does suck! What does it have to do with the Constitution or laws? Text is always enough and never leads to absurd results! We don't need to look at Congressional intent ever!

Fairness! bah! It's nothing but a Communist Marxist idea and I'm sick of it! Unlike textualism, fairness can mean anything!

Ahh, textualism. Providing a clear and objective conservative answer to every problem.
10.16.2008 3:02pm
JA (mail):
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?


This is an easy one, folks. Think about it.

Let's say the Supreme Court, in a 9-0 opinion, establishes a new right based solely on its sense of justice and fairness. "Our sense of Justice and Fairness" is the only authority appealed to by the Justices in this opinion.

Thereafter, the People use their Art. V amendment power to specifically repudiate this ruling and the new right. A case arises, the Court grants cert. What do you think the Court should do? What do you think the Court can do, legitimately?

As I said, simple. The Supreme Court must be constrained by what the Constitution says; it must not appeal to a higher authority. Otherwise, the People are no longer sovereign.
10.16.2008 3:02pm
loki13 (mail):
Two comments- a quick one, and then the lengthy one.

To FantasiaWHT- Yes, I happen to read a *lot* of 9th Circuit Cases. Would you care to point me to the "huge number" they get wrong? Are you just repeating the en vogue talking point? Have you bothered working out the total percentage of cases the 9th Circuit handles overall with the number of reversals they have every year and compare it to another circuit (say, the 11th)? Puts it in perspective, doesn't it? Are you vociferously complaining about how the 5th Cir. routinely ignores what SCOTUS has ordered, to the point of getting benchslapped, in death penalty cases? No? Okay then.

(This is not to say that I don't think there's a structural problem with the 9th due to its size and the way they handle en banc; but this "the 9th Circuit is TEH WRONG!" meme is beyond ignorant. Sometimes I think they get a case wrong, like roommates.com, but it isn't for ideological reasons; they're tough cases.)

As for the broader perspective, I think what is lost is the nuance. The Constitution is the product of compromise, and is, thankfully, a short read. It was also drafted over 200 years ago. All of these factors add to one thing- it is extremely vague. Anyone who has read the jurisprudence on, say, the 1st Am. alone (paging Prof. Volokh) understand the difficulties inherent in applying that little bit of text to the countless real-world situations that arise. Let alone what happens when Consitutional provisions conflict (as there isn't a real lexical ordering). What if the freedom of the press is interfering with the right to a free and impartial jury, for instance (yes, Virginia, there;s ample caselaw on that).

As Prof. Kerr could doubtless instruct you, the vagaries of the limited text of the Fourth alone could drive you batty. I happen to think 4th Am. rights are underprotected in many areas (Terry, pretext searches, etc.); I am sure that Prof. Kerr in good faith would disagree with me.

Anyway, the long and the short of it is that there are many hard questions without easy answers. If you have a the circuits split on an issue (all of them fairly intelligent) and the S. Ct. decides the issue 5-4, that wasn't a slamdunk, was it? I remember once, in the day, in class we counted up the total votes of all the judges (original trial, DC, Circuit, En Banc, S. Ct) that went into a 5-4 decision. If you add them all up, the dissent had an overwhelming majority of 'jurists'. But, we now have the law as laid down by the five-judge majority on SCOTUS, and it has been extended since by similarly small margins. Go figure.

So in those interstices of the law where reasonable people can disagree, and where the constitutional text is a starting point, but not an answer, how do we want judges to rule? With regards to the underlying equity of the rule that will be made, or without it? None of which is to say they should ignore a clear textural mandate; but those cases rarely make it to SCOTUS.
10.16.2008 3:04pm
gerbilsbite:
c.gray: WWHD? What Would Holmes Do?

Tough call, but a blind deference to precedent he most assuredly would not hold.

The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.


Precedent shouldn't be ignored, but it isn't Holy Scripture. And when old rules interfere with present fairness, there exist grounds to revisit and revise.
10.16.2008 3:04pm
SenatorX (mail):
What we really need are Philosopher-Kings who will rule us all with their benevolent wisdom. /s
10.16.2008 3:05pm
AF:
The main argument for judges ruling making "decisions based on what's written in the Constitution and legal precedents" rather than their "sense of fairness and justice" is that judges are unelected and elected officials, not judges, should not be "making" law.

Won't it significantly weaken that argument if the voters elect the candidate who has made it clear that he wants judges to be guided by their sense of fairness and justice?
10.16.2008 3:05pm
Ex parte McCardle:
FWB, since you insist that "good intentions" and "fairness" are not legitimate factors in the decision of cases, please point to the clause of the Constitution which lays out explicitly what the standards are by which judges must decide the cases that come before them.
10.16.2008 3:06pm
FantasiaWHT:

you might have except for the fact that the empoyer was discriminating.


Was there a trial on the merits? Even if so, wouldn't a decision the other way have been unfair to every employer who has even been ACCUSED of discrimination?

Ben P - I did not put forth the 9th as an example of the whole system. I used the 9th to show that cases don't "make it to the supreme court precisely because they aren't easy." Regarding your second point, SCOTUS can only reverse so many of 9th's completely-wrong-on-the-easy-question decisions. That leaves most of them at a 1-1 tie, and ties go to the appellate court.
10.16.2008 3:06pm
RandomGuy (mail):
@JA

I think it would be important for the Supreme Court to be fair and just in their interpretation of the amendment.
10.16.2008 3:07pm
Ben P:

A court overruling a solid precedent provides just about the least amount of notice of a legal change possible. It generally comes as a surprise to those who relied on the precedent. As people generally consider, that's hardly "fair". People are not supposed to be punished for following the rules.


This seems to me to be just one more element of the question "what is fair" as a whole.

I don't necessarily like referring back to law school all the time because I'm sure not every commenter here is a lawyer, but I see the scope of this as very similar to a law professor asking his students "What's the policy behind this?"

A lot of first year students learn that if you're unprepared, that "judicial economy" is a reliable answer.

I think having a consistent rule of law is another such answer. Even if the end result is unfair to some, there is fairness in consistency.
10.16.2008 3:08pm
Gabriel McCall (mail):
Thus the Supreme Court has executed exactly the kind of centralist / anti-federalist coup that the framers wanted to avoid.

Originally, the anti-federalists were those who argued that the proposed Constitution would inevitably collapse into an all-encompassing central government, and that the federalists' assurances that this wouldn't happen were worthless. Turns out the anti-federalists were right and the federalists were wrong... but calling this centralization "anti-federalist" is somewhat ironic.
10.16.2008 3:08pm
Brian K (mail):
where were all of you rule of law people when we were discussing bush's numerous violations and "bendings" of said law?
10.16.2008 3:09pm
Thales (mail) (www):
"Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?"

This is a rather obtuse false alternative, one that ignores the areas in which legal or constitutional ambiguity exist and the idea that where one or more valid rules can be laid down, a judge ought to seek, well, justice and fairness in his decision. It is certainly possible to do both in many cases, and I don't recall Obama or any supporter of note having been asked, "will you ignore the text of the constitution or a clear precedent in an effort to reach what you believe to be substantive justice?" Conversely, I don't recall McCain or any prominent supporter having been asked, "if the Constitution or a legal precedent commands an unjust or unfair result, will you nonetheless adhere to it?"
10.16.2008 3:11pm
SenatorX (mail):
Someone please send Obama and his people this book so they can educate themselves as quickly as possible :

The Open Society and Its Enemies : The Spell of Plato
by Karl Popper
10.16.2008 3:17pm
Brian K (mail):
Was there a trial on the merits? Even if so, wouldn't a decision the other way have been unfair to every employer who has even been ACCUSED of discrimination?

before even asking either of questions you should read about the case. you can't answer the second question if you know nothing about the case. once you've done that, then can you explain why it would be unfair to every employer?
10.16.2008 3:18pm
Snaphappy:
Fairness &Justice vs. Constitution and Precedent. What a stupid, stupid question, the answer to which tells us nothing whatsoever. Which do you prefer, American public, Happiness and Light or Puppies and the laugh of the little children? These two are mutually exclusive you know.

My opponent's supporters hate happiness, as shwon by the poll results stating their support for puppies.
10.16.2008 3:19pm
byomtov (mail):
Obama's comment related to the Ledbetter case, where the interpretation (of a statute, not the Constitution) was certainly debatable, at least. It was part of his criticism of McCain for opposing legislation that would have explicitly allowed more time to file the sort of discrimination suit that was involved.
10.16.2008 3:23pm
NI:
Fantasia and Terrivus, I didn't say I like that judges do as they please, just that it's a fact of life that they will. See Raich as an example of conservatives doing as they please. So if we're going to have a choice between judges whose inclination is to rule against the little guy versus judges whose inclination is to rule in favor of the little guy, I'll take the latter.

I will agree with you that if something is clear and unambiguous, like a consumer contract, it should stand. But most of the time things aren't so clear cut. What exactly is "due process" or "equal protection" anyway? Why should race be a protected class but smoking shouldn't be? Questions like that will always come down to what a judge thinks it means. And I'm getting tired of judges who consistently interpret ambiguities in such a way that little guys get screwed.
10.16.2008 3:26pm
Sarcastro (www):

My opponent's supporters hate happiness, as shown by the poll results stating their support for puppies.


Goddamn puppies! I deny that puppies have any value. You start liking puppies and they'll run all over you!

Happiness, on the other hand, has no downside, which is why anyone not for it has some sort of evil agenda to rule us all.
10.16.2008 3:31pm
JA (mail):
And when old rules interfere with present fairness, there exist grounds to revisit and revise.

Yes, that is the power vested in the Legislature by Art. I. Neither the Supreme Court nor the Executive have the power to substantively change the law.

...please point to the clause of the Constitution which lays out explicitly what the standards are by which judges must decide the cases that come before them.

Art. VI -- "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..."

Interpretation of the boundaries provides some leeway, since the "Set of Reasonable Interpretations" is oftentimes larger than one. However, at any time the People may choose to overrule a particular judicial interpretation via the amendment process. Thereafter, such interpretation would be out of bounds.
10.16.2008 3:31pm
Sarcastro (www):
JA:

Neither the Supreme Court nor the Executive have the power to substantively change the law.



you may want to check with some people on that...people at the FCC, FDA, EPA...Oh, and Cheif Justice John Marshal too.
10.16.2008 3:40pm
SeaDrive:

Someone please send Obama and his people this book so they can educate themselves as quickly as possible..


Be a mench; pay for it yourself.

Lacking some comprehensive definition, all the palaver about fairness merely begs the question. It doesn't advance the discussion. However, in the context a political campaign, it's clear what Obama is saying. He wants the civil and social rights of the little guy accorded the same weight as the property rights of the big guy.

There is a very interesting talk here
http://tinyurl.com/5mwc73
that illuminates these discussion better than all the comments above.
10.16.2008 3:41pm
J. Aldridge:
Doesn't sound like Obama wants or needs judges.
10.16.2008 3:47pm
Milhouse (www):
Of course a judge must stand up for a woman raising a family if she is being treated unfairly, just as he must stand up for a multi-billionaire who is being treated unfairly. That's what judges are for, isn't it? But Obama gave the easy example - it's easy to stand up for the victim if he's poor, but it's much tougher to stand up for the victim when he's a rich person being exploited by a poor one. That's why the Bible warns judges neither to favour the poor nor to show respect for the great.
10.16.2008 3:47pm
byomtov (mail):
where were all of you rule of law people when we were discussing bush's numerous violations and "bendings" of said law?

Indeed. To hear conservatives claiming to be great champions of the rule of law after eight years of Bush is laughable.
10.16.2008 3:50pm
gerbilsbite:
Neither the Supreme Court nor the Executive have the power to substantively change the law.
Uh, yeah, they actually do. Regulatory regimes within their purview can be altered by Executive agencies (and frequently are), subject to legislative reversals. And the common law has always been under the purview of the courts. If you really want to argue against judicial review AND common law, you're in for quite an uphill struggle.
10.16.2008 3:55pm
Joe Bingham (mail):
"hard cases make bad law."
10.16.2008 3:58pm
OrinKerr:
Byomtov,

Perhaps we can agree that two groups are equally inconsistent and result-oriented: Those who criticized the Bush Administration for bending the law who want the Supreme Court to bend it, and those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it. Of course, there are possible theories for why it's okay for one branch to bend the law and do what they want while another branch shouldn't, but that would at least be a principled starting point.
10.16.2008 3:59pm
NickM (mail) (www):
A 30-year statute of limitations is most assuredly not fair to defendants. Witnesses and evidence are probably long gone. Oh, and good luck getting your insurance carrier to accept defense of a suit from your 1978 policy - assuming you still have a copy of the policy somewhere.

Does any lawyer here think it would be fair if in 2038, one of his clients could come forward and say that he had just discovered the lawyer had defrauded him in 2008, and sue over it?

Nick
10.16.2008 4:05pm
Steve:
But in fact, Nick, that's typically how a statute of limitations works in the case of fraud. It's not as if you merely have to conceal your fraud for the duration of the limitations period and hooray, you've gotten away with it.

Remember, in Ledbetter's case, we're talking about a statute of limitations of only 180 days. If you don't discover that you're the victim of pay discrimination within the first 180 days after a pay decision is made, you're permanently out of luck. Considering that it is typically not common knowledge in the real world how much your co-workers make, expecting people to research their co-workers' pay and determine if they're being discriminated against with 180 days of a pay decision is simply unreasonable. If the statute had clearly been written to mandate that result, then fine, but where there's an ambiguity it shouldn't be interpreted to achieve such an unreasonable result.
10.16.2008 4:12pm
Steve:
Also, recall that Ledbetter wasn't challenging discrimination she experienced 30 years ago, she was challenging discrimination that started 30 years ago and was still ongoing.

If I've had a 30-year relationship with a client and I've been continuing to defraud him the entire time, I would hardly expect to be able to defeat his lawsuit by saying "but I've been cheating you for 30 years now! the statute of limitations ran out and I'm now entitled to continue cheating you indefinitely!"
10.16.2008 4:14pm
Brett:
[Deleted by OK on civility grounds]
10.16.2008 4:24pm
MarkField (mail):

Does any lawyer here think it would be fair if in 2038, one of his clients could come forward and say that he had just discovered the lawyer had defrauded him in 2008, and sue over it?


Assuming that the client was reasonable in taking so long to discover the fraud, that is in fact the law.
10.16.2008 4:41pm
Anon Y. Mous:
Orin, you're coming dangerously close to acknowledging the true definition of "judicial activism", prior (deliberate) obtuseness notwithstanding.
10.16.2008 4:46pm
Terrivus:
Talk of "what's fair" should begin and end with this point:

If the decision in Ledbetter was so obviously unfair to the employee -- and no other parties -- then why has Congress not yet passed a law that would rectify the situation?

(I realize it has tried to do so; but it hasn't, even when controlled by Democrats.)

The answer is because, lo and behold, there are two sides to every "fairness" argument. If it were that cut-and-dry, it would have sailed through by now.
10.16.2008 4:56pm
Terrivus:
before even asking either of questions you should read about the case.

Even better, you could read the opinion itself. There, you will learn that the Court of Appeals overturned the jury's decisions on the merits as to the few paychecks that fell within the 180-day period (and were thus actionable). The jury had found there to be discrimination; the appellate court reversed. Ledbetter didn't challenge that finding in the Supreme Court. Thus, as a matter of law, there was, in fact, no discrimination on the actions that actually went to trial.
10.16.2008 5:02pm
K:
So why would judges or law schools be needed? Are judges the models of fairness? Perhaps I didn't notice when they were injected with moral superiority.

So, the legislature isn't needed. I can't see why police are needed either; how can they know what the law is? Perhaps from rumors or briefings about the whims of local judges?

Maybe a Huggy Bear type character can tip the police about the "word on the street?"

e.g. "I'm hearing movie prices are unfair to the poor. So we can just walk in and sit. We don't need no stinking tickets."

Why not let the judge appoint deputy judges? Perhaps wives, husbands, sons, neighbors, or boy scouts could serve? The judge can choose agreeable people who behave fairly and let them decide cases from time to time.

That sure sounds like social justice to me.
10.16.2008 5:02pm
Brian K (mail):
Orin,

Perhaps we can agree that two groups are equally inconsistent and result-oriented: Those who criticized the Bush Administration for bending the law who want the Supreme Court to bend it, and those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it.

I may not be byomtov, but i was the person who made the original statement.

I've made your point numerous times in conversations about judicial activism. both sides have a tendency to reach the conclusion they want first and then reason backwards. The difference seems to be in the way that each side's words line up with their actions.

As to your specific bush vs. scotus statement. the difference, i think, is that bush is supposed to execute the law as written while scotus is supposed to interpret it. the executive branch, regardless of who runs it, should not be decided that it doesn't have to follow the law just because they don't like it.
10.16.2008 5:04pm
OrinKerr:
Anon Y, Mous,

I have written about the true meaning of judicial activism here.

As for my deliberate obtuseness, I don't follow, but maybe it's the kind of thing that is supposed to be over my head.
10.16.2008 5:04pm
byomtov (mail):
Orin,

Perhaps we can agree that two groups are equally inconsistent and result-oriented: Those who criticized the Bush Administration for bending the law who want the Supreme Court to bend it, and those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it. Of course, there are possible theories for why it's okay for one branch to bend the law and do what they want while another branch shouldn't, but that would at least be a principled starting point.

We can agree that there's an awful lot of inconsistency running around, though I'd elaborate a bit. I think that many of those who claim to want the Supreme Court to "adhere strictly to the law, etc." don't really mean it. It's just handy prefabricated rhetoric. I think most people (and many judges, including SC justices) are heavily results-oriented. So I think that for many in your second group:

" those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it"

the inconsistency is more rhetorical than real, but that doesn't conflict with what you wrote.

As to the first group, it depends on what you mean by the Supreme Court "bending the law." I'm not a lawyer, but I am dimly aware that there are various theories of Constitutional interpretation running around. They do not all have the same definition of "bending the law." Still, unless you're plumping for a very narrow philosophy, I'll agree that there is inconsistency.

Whether all inconsistencies are equally blameworthy when discussing specific cases is another matter. There are important issues of degree. You use the term "bending the law" for executive actions. I think "breaking" is more accurate. No need to go through the entire litany, which will just start the 9,873,459th set of comments on the same topics, but I'd be curious to hear your opinion on the choice of verb.

Now, I understand that lots of Presidents, maybe all, have done things that could be construed as illegal. I'm going to guess that exigencies leading to that are part of what you're referring to when you speak of

possible theories for why it's okay for one branch to bend the law and do what they want while another branch shouldn't,

The trouble is, I believe that the Bush Administration has far exceeded the usual, or justified, if you like, level, both in quantity and "quality." The theories you refer to wouldn't justify Watergate, and they don't justify what Bush has done. So when people yelp about the sanctity of the rule of law in talking about courts, and at the same time staunchly defend the Administration, I don't take them seriously.
10.16.2008 5:09pm
Brian K (mail):
There, you will learn that the Court of Appeals overturned the jury's decisions on the merits as to the few paychecks that fell within the 180-day period (and were thus actionable).

yes, but only for the paychecks within the 180 day period. it made no determination that she did not suffer discrimination. hence the supreme court decision on how when the ambiguously defined 180 day period begins.
10.16.2008 5:10pm
Terrivus:
yes, but only for the paychecks within the 180 day period. it made no determination that she did not suffer discrimination. hence the supreme court decision on how when the ambiguously defined 180 day period begins.

Jeepers, Brian K, don't embarrass yourself. You originally wrote that "the employer was discriminating." Someone challenged you, asking, "Was there a trial on the merits?" You replied that one "should read about the case" before asking such questions.

The opinion in fact demonstrates that you are wrong. On the paychecks deemed actionable, there was a trial on the merits. The jury found there was discrimination. The appellate court overturned this finding. Ergo, on the merits, there was no discrimination. Your statement that the court of appeals "made no determination that she did not suffer discrimination" is flat-out incorrect.

The rulings on the claims that proceeded to trial are an entirely different matter than the legal question regarding what suffices to trigger the statute of limitations, and whether the previous paychecks should have been actionable. That question has nothing to do with the merits-based question of "was there discrimination," which was your original premise.
10.16.2008 5:26pm
SPO:
The problem is, of course, that if judges ignore the law, then what right does society have to tell people they have to obey the judge's decree? Raw power? Well, what if the loser can get away completely with revenge? How is that any different from a judge deliberately ruling contrary to law from a moral standpoint?
10.16.2008 5:28pm
Brian K (mail):
Ergo, on the merits, there was no discrimination.

No. there was only no discrimination within the last 180 days. that is a big difference from there being no discrimination at all. i think she made a pretty good case that there was discrimination at some point in the past. hence the debate about how to properly apply the statue of limitations.
10.16.2008 5:38pm
Sarcastro (www):
Well, based on the comments of SPO, K, et al. it seems that fairness means never paying any attention to the law. This is indeed what I hear liberals arguing for all the time.

And I'm glad so many people are familiar with the facts of the case. Though it seems a bit more like Rashomon v. Goodyear Tire and Rubber Company at this point.
10.16.2008 6:26pm
loki13 (mail):
Terrivus,

Your reading of the case would have might for a pretty quick day at SCOTUS, huh? Let's look at the opening of Alito's opinion:

Toward the end of her time with Goodyear, she
was being paid significantly less than any of her male
colleagues. Goodyear maintained that the evaluations had
been nondiscriminatory, but the jury found for Ledbetter
and awarded her backpay and damages.
On appeal, Goodyear contended that Ledbetter's pay
discrimination claim was time barred with respect to all
pay decisions made prior to September 26, 1997—that is, 180 days before the filing of her EEOC questionnaire.
And Goodyear argued that no discriminatory act relating
to Ledbetter's pay occurred after that date.
The Court of Appeals for the Eleventh Circuit reversed,
holding that a Title VII pay discrimination claim cannot
be based on any pay decision that occurred prior to the
last pay decision that affected the employee's pay during
the EEOC charging period. 421 F. 3d 1169, 1182--1183
(2005). The Court of Appeals then concluded that there
was insufficient evidence to prove that Goodyear had acted
with discriminatory intent in making the only two pay
decisions that occurred within that time span, namely, a
decision made in 1997 to deny Ledbetter a raise and a
similar decision made in 1998


Here's the summary:
1. Jury found she was discriminated against.
2. 11th Cir. (most employee-unfriendly circuit around) barred any findings that happened more than 180 days before the action was filed.
3. Because of this, although the discrimination was ongoing (in terms of reduced pay), there was no single discriminatory act within the last 180 days.

1, 2, and 3 did not disturb the jury's findings as to the previous acts of discrimination.

That is why the question before SCOTUS was the following:


"Whether and under what circumstances a plaintiff
may bring an action under Title VII of the Civil
Rights Act of 1964 alleging illegal pay discrimination
when the disparate pay is received during the statu-
tory limitations period, but is the result of intention-
ally discriminatory pay decisions that occurred out-
side the limitations period."

II could continue to quote further, but put simply you are wrong. The 11th did not disturb the findings of discrimination by the jury, but found it was time barred.

Feel free to add IANAL to your posts.
10.16.2008 6:26pm
Sarcastro (www):
According to SPO, K et. al. it seems fairness means total disregard for the law. Wow, Obama the anarchist! Who knew?

It's seeming more like Rashomon v. Goodyear Tire &Rubber Co. at this point. But then reading the facts of the case is a lot less fun than reading about it in World Net Daily!
10.16.2008 6:27pm
LM (mail):
DangerMouse:

Shall I continue?

On this blog? Yes, you'll probably have to.

Yes, because the "Volokh" in "Volokh Conspiracy" is Russian for "liberal activist black-robed overlord."


OrinKerr:

Perhaps we can agree that two groups are equally inconsistent and result-oriented: Those who criticized the Bush Administration for bending the law who want the Supreme Court to bend it, and those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it. Of course, there are possible theories for why it's okay for one branch to bend the law and do what they want while another branch shouldn't, but that would at least be a principled starting point.

The evilest part of your Marxist agenda is how artfully you conceal it in seemingly innocuous statements like this one. Sometimes I have to spend hours staring at this stuff before your true purpose reveals itself. But I know it's in there, so reveal itself eventually it will.
10.16.2008 6:29pm
c.gray (mail):

On the paychecks deemed actionable, there was a trial on the merits. The jury found there was discrimination. The appellate court overturned this finding. Ergo, on the merits, there was no discrimination.


This is distorted.

The 11th Circuit decided that since it was undisputed that the actual decision to pay Ledbetter less money occurred more than 180 days before the complaint, she was legally barred from pursuing the claim ... even with respect to pay during and after the 180 period itself...and even if she had been the pay decision was a product of discrimination.

That's hardly what anyone would call a decision "on the merits" of the claim.

It's also borderline idiotic. In a scheme where acts of discrimination are presumed to occur when the employer decides to commit them, rather than when the employee actually experiences the consequences of the discrimination, employers can discriminate with impunity as long as they can wait six months before actually implementing a policy change and notifying their employees. Plaintiffs can't even get prospective relief.
10.16.2008 6:35pm
Sarcastro (www):
My above comment was so awesome I thought I'd post it twice, since on this blog, I'd probably have to.
10.16.2008 6:35pm
loki13 (mail):
c. gray,

Very good point as well about the policy implication. I honestly have no idea where Terrivus is coming from, unless he is looking at a poorly ediTTTed casebook.

(Sorry, couldn't resist. But c'mon, is reading cases that hard?)
10.16.2008 6:39pm
K:
Sarcasto: my point wasn't that fairness means never having to pay attention to the law. The law may still punish.

The point was that fairness means you can't rely upon what the law is. It can mutate based only upon the judge's wish.

Fairness is sort of a drift toward "I think X is bad and Y is not bad, and that is the law in this court."

Of course you may not care for that definition of fairness. And I may not like yours.

Anarchy does not mean arbitrary law.

I don't think Obama has any inclination toward anarchy. I believe he intends exactly the opposite.
10.16.2008 7:17pm
Suzy (mail):
The point about Ledbetter also seems to be that the justices in the minority were looking at precedent from other cases to support their reasoning. So both sides are depending on their own notions of fairness to decide how to read the law and apply precedents. It's not like the majority is just reading the text absent any ideas about fairness, and the minority is just deciding that it's unfair despite grabbing that idea from thin air.
10.16.2008 7:24pm
Sarcastro (www):
[K I was being a bit sarcastic. Fairness does not preclude following the law or require making the law mutate. A given statue may be ambiguous, communication and Congress being imperfect.

In such cases, judges ideals are important.

Not to mention with the Constituion "Equal Protction" can mean a whole lot of different things!]
10.16.2008 7:27pm
MarkField (mail):

My above comment was so awesome I thought I'd post it twice, since on this blog, I'd probably have to.


We grade by quantity on this blog.
10.16.2008 7:45pm
Bleepless:
When it comes to any words liberals dislike, up to and including those of the Constitution, liberals suddenly pretend to be illiterate. Meaning? What's that? Doesn't exist.
10.16.2008 9:53pm
David Warner:
SenX,

"Someone please send Obama and his people this book so they can educate themselves as quickly as possible :
The Open Society and Its Enemies : The Spell of Plato
by Karl Popper"

Evidently, they're already familiar with it. The text evidently affords multiple interpretations.
10.16.2008 10:56pm
LM (mail):
MarkField:

We grade by quantity on this blog.

... making JBG the VC valedictorian. That's a commencement ceremony I'd pay to attend.
10.16.2008 11:00pm
David Warner:
Evidently, Sarcastro's evidently repetitiousness evidently is evidently contagious evidently.

SeaDrive,

"He wants the civil and social rights of the little guy accorded the same weight as the property rights of the big guy."

Given the relative weight given to civil vs. property rights in the jurisprudence over the last, say, hundred years, I'd say he'd do better to advocate that the property rights of the little guy be accorded the same weight as the civil and social rights of the big guy.

In his own way, this is what he's doing. Although Ledbetter's not a guy.
10.16.2008 11:03pm
MarkField (mail):

Given the relative weight given to civil vs. property rights in the jurisprudence over the last, say, hundred years, I'd say he'd do better to advocate that the property rights of the little guy be accorded the same weight as the civil and social rights of the big guy.


As James Madison said, "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."
10.16.2008 11:52pm
SenatorX (mail):
David that always bothers me but I chalk it up to projection. The dishonest and cunning, but not too subtle, tend to always project the furthest thing from their perceived reality. They seem to can't help but try to hide at the furthest point.

My point really was just about the failing the left seems to commonly fall into. That they think the problems with the socialist/progressive/collectivist societies throughout history are just that if the right people were leading then everything would be rosy. They somehow are unable to see the totalitarian justice system that arises when the rule of law is abandoned in favor of arbitrary judgments by individuals about what is fair or not.
10.16.2008 11:55pm
trad and anon (mail):
The answer is because, lo and behold, there are two sides to every "fairness" argument. If it were that cut-and-dry, it would have sailed through by now.
Because Congress always makes its decisions on the basis of what's fair rather than on the basis of what powerful special-interest groups think?
They somehow are unable to see the totalitarian justice system that arises when the rule of law is abandoned in favor of arbitrary judgments by individuals about what is fair or not.
You really don't want to live in a common-law country, do you?
10.17.2008 12:20am
Laura S.:
Doesn't this play on 'clever' wording? Many people would surely assume that fair means following the law, the constitution.

But Obama's remark is actually code. It refers not to 'fairness' but to changing the rules after fact to achieve a particular result--he specifically discussed the Goodyear case.

Incidentally, his summary of the Goodyear case was quite juvenile.
10.17.2008 12:21am
David Warner:
SenX,

I'd concur but add that the failing is more a human one than a "left" one. Considering that this failing is likely hardwired in our brains, overcoming it is a task to span millenia. Popper and Berlin offer a useful way forward.

"Principles are not less sacred because their duration cannot be guaranteed. Indeed, the very desire for guarantees that our values are eternal and secure in some objective heaven is perhaps only a craving for the certainties of childhood or the absolute values of our primitive past. 'To realise the relative validity of one's convictions', said an admirable writer of our time, 'and yet stand for them unflinchingly is what distinguishes a civilised man from a barbarian.' To demand more than this is perhaps a deep and incurable metaphysical need; but to allow such a need to determine one's practice is a symptom of an equally deep, and more dangerous, moral and political immaturity."

Isaiah Berlin, Two Concepts of Liberty
10.17.2008 12:34am
neurodoc:
Considering that it is typically not common knowledge in the real world how much your co-workers make, expecting people to research their co-workers' pay and determine if they're being discriminated against with 180 days of a pay decision is simply unreasonable.
If you want to know how much a federal employee is paid, just file a FOIA request. That information is yours for the asking. So ought we encourage private employers to disclose to their employees what their co-workers are being paid?

Employers who were forthcoming in response to requests by their employees for information about their pay in relation to that of co-workers and the factors used to set pay would be given the benefit of a relatively short statute of limitations for pay discrimination cases. The law would recognize that their employees could have known sooner that they were being discriminated against, so should have filed suit more promptly.

Employers who chose not to be so forthcoming in response to such requests by their employees would be burdened with a much longer statute of limitations. The law would recognize that their employees could more plausibly claim that they had been kept in the dark by the employer, and thus didn't learn until much time had passed that they were the victims of pay discrimination.

So, employers who try to keep employees from discovering what others are being paid, could continue to do so, but pay a price for it in the form of lesser protection against a discrimination lawsuit. Employers willing to share pay information with its employees, would be rewarded with greater protection against a lawsuit alleging pay discrimination going back years, or even decades.

Whadya think? (I was at a political fundraiser tonight with one of our senators, a Democrat. Had I thought of this earlier, I might have buttonholed him to share the idea and get his reaction to it.)
10.17.2008 2:39am
Ursus Maritimus:
"If you're a judge, and you're not willing to let The People's decisions on that win, resign."

No, you issue a restraining order against the government and hold them in contempt if they continue to willfully disregard your authoriteh
10.17.2008 9:44am
byomtov (mail):
Orin,

Perhaps we can agree that two groups are equally inconsistent and result-oriented: Those who criticized the Bush Administration for bending the law who want the Supreme Court to bend it, and those who supported the Bush Administration's bending the law who oppose the Supreme Court bending it. Of course, there are possible theories for why it's okay for one branch to bend the law and do what they want while another branch shouldn't, but that would at least be a principled starting point.

Thinking some more about this, it seems to me that you are saying that what might seem inconsistent really is OK, as long you have a theory for why it's OK for one branch or the other to "bend the law." That doesn't seem like much of a "starting point." It seems to go in circles. After all, if there are special circumstances that justify fudging by one branch then why not b y another? No. I may be overinterpreting, but I think you are trying to set up an argument that it's OK to criticize the courts for lack of strict adherence to law but that the President can do whatever he likes.

I don't buy it.
10.17.2008 11:15am
jukeboxgrad (mail):
lm:

That's a commencement ceremony I'd pay to attend.


Where did I go wrong? It seems like only yesterday you were saying things like this:

thanks for your good work. Keep it up.


It must be that you have a secret thing for hockey moms.
10.17.2008 12:15pm
hazemyth:
Without having read the preceding hundred comments...

It strikes me that this is not either/or issues, with the letter of the law and precedent on one side and "fairness and justice" on the other. It speaks poorly of the constitution to imply otherwise.

The most prominent example that I can think of would be Brown v. Board of Education. That unanimous ruling provided a more generous and just interpretation of constitutional law than prior courts (such as in Plessy v. Ferguson) -- true to the spirit and not just the letter of the Equal Protection Clause. In so doing, of course, they reversed legal precedent.

My take on gay marriage rulings is similar. I can accept the originalist argument that gay marriage may not have been intended by the authors of non-discimination clauses in state constitutions. Nonetheless, it is reasonable that justices should apply these clauses justly and impartially, even beyond the author's intention, or the example set by earlier precedent.
10.17.2008 1:19pm
LM (mail):
jukeboxgrad:

Where did I go wrong?

You misunderstand. What I found amusing was the idea of you being honored by the VC. I am indeed grateful for your contribution, without which a tremendous amount of unsupported nonsense on these threads would go unchallenged.
10.17.2008 2:33pm
David Warner:
LM,

"I am indeed grateful for your contribution, without which a tremendous amount of unsupported nonsense on these threads would go unchallenged."

There is that. There's also the tremendous amount of unsupported nonsense he contributes directly. Treating the VC comments section as a bargain basement Axelrod ad buy or, worse, as a courtroom sans defense counsel or judge, is unhelpful. More humanity, please.
10.17.2008 3:00pm
jukeboxgrad (mail):
lm:

What I found amusing was the idea of you being honored by the VC.


Thanks for explaining, and thanks for your kind words. I apologize for misunderstanding. I considered the correct interpretation, but then I thought about the idea that post-commencement, someone leaves, as in 'good riddance.' Anyway, my mistake.
10.17.2008 4:42pm
jukeboxgrad (mail):
warner:

There's also the tremendous amount of unsupported nonsense he contributes directly


Since there such a "tremendous amount," it should be no trouble for you to present an impressive list of examples. Or even one example?

as a courtroom sans defense counsel or judge


Yes, luckily for me there's no one here to present any kind of "defense," to counter the facts I present. Thank goodness I've got my special mind-control machine, which causes all the erudite 'conservatives' to clam up when I demonstrate they've been peddling baloney. Like I did here (to pick one recent example).

The idea that there's no one here to play "defense counsel" is one of the funniest things I've heard in a long time.

More humanity, please.


Letting bullshit go unchallenged is not my idea of enhancing "humanity."
10.17.2008 4:42pm
David Warner:
Juke,

"The idea that there's no one here to play "defense counsel" is one of the funniest things I've heard in a long time."

We are, in all our politically diverse wonder, the jury. You're the (brilliant) prosecutor. I spend way too much time online as it is, and I don't have the time, energy, or expertise to put all that together. So I venture a defense worthy only of a mistrial.

"Letting bullshit go unchallenged is not my idea of enhancing 'humanity.'"

That's in the "there is that" category. The ceaseless advocacy and prosecutory zeal, the other. BTW, have you ever laid out an affirmative belief of your own, or is challenging bullshit all there is?
10.17.2008 5:16pm
jukeboxgrad (mail):
warner:

We are, in all our politically diverse wonder, the jury. You're the (brilliant) prosecutor.


Then it's about time you told your pals on the jury that they're supposed to shut up, listen, and don't argue. For some strange reason a lot of them don't know the rules.

You recently said this:

There's also the tremendous amount of unsupported nonsense he contributes directly


And on another thread you recently said this:

the burden of proof is on the accuser, not the accused


But when I challenge you for examples of "unsupported nonsense," you say this:

I don't have the time, energy, or expertise to put all that together.


So I guess your accusation about "unsupported nonsense" turns out to be unsupported nonsense.

ceaseless advocacy and prosecutory zeal


Extremism in the defense of the truth is no vice. If you're accusing me of caring about the difference between fiction and non-fiction, guilty as charged.

have you ever laid out an affirmative belief of your own


Only very frequently. Like here and here, just to pick two recent examples. And your use of the term "affirmative" is probably more subjective than you would like to admit.
10.17.2008 7:05pm
SenatorX (mail):
David that is interesting quote and I haven't read him before. It took me a bit to parse it but I think its spot on. I agree the problem with the viewpoint, that Laura S. points out so accurately in the comment above yours, is based on immaturity and ignorance. I fear some of it is built into people as well as a function of their childhood authority figures but I prefer to hope its just ignorance. I think a lot of the left are functionally nihilists because they fail to understand what the rule of law even means and instead are convinced they know what is right at any given time, anything that achieve their ends is what is good. This problem is endemic to all the collectivist philosophies. These days the "right and left" as concepts are clouded by lots of garbage but for me the divide is between those that understand the rule of law and believe in the primacy of individual whenever possible and the collectivists/statists who don't. The libertarians vs. the Left.
10.17.2008 8:31pm
David Warner:
SenX,

"These days the "right and left" as concepts are clouded by lots of garbage but for me the divide is between those that understand the rule of law and believe in the primacy of individual whenever possible and the collectivists/statists who don't. The libertarians vs. the Left."

The problem there is that the majority of the Lefts in history have come from times and places where the only dichotomy is power/powerlessness, with the state having the power. Many are unaware that any other option exists. Many more that may be aware dismiss those options out of hand. I blame this.

The labels are indeed in flux. My guess is that the only tradition broad and deep enough to truly contest the concentration of power in the corporatist state is Liberalism itself. Forget the "Classical" kludge. Tragically mistitled book!
10.18.2008 1:22am
David Warner:
JBG,

Suffice it to say, whatever the quality of your faith, your cutting and pasting has missed my point entirely. It was an attempted surrender. Pointing out your hedgehogitude is no accusation. I myself have been quite the hedgehog here in my own JBG Derangement Syndrome. Most hedgehogs I've known with your talents aspire to more than mere muckraking with the occasional technical tip thrown in. Your life tho, not mine.
10.18.2008 1:44am
LM (mail):
David,

More humanity, please.

Context. If the choice was between partisan battles and collegial dialog and reflection, I'd opt for the latter. But that's not what's on menu. I've seen this place with and without JBG, and imho it's much the better for his participation.
10.18.2008 7:17am
jukeboxgrad (mail):
warner:

Pointing out your hedgehogitude is no accusation.


You're producing so many of them in multiple threads that you're having a hard time keeping track of your gratuitous insults. You called me a "hedgehog" in a different thread, and the context seems to indicate it was meant as an insult. Then again, clarity and directness aren't exactly your greatest strength, so it's hard to be sure exactly what you meant.

It was in this thread, though, that you accused me of producing a "tremendous amount of unsupported nonsense." Are you also going to claim that this was "no accusation?" More likely you'll just keep refusing to offer an iota of proof, even though it was you who recently said "the burden of proof is on the accuser, not the accused."

Most hedgehogs I've known with your talents aspire to more than mere muckraking with the occasional technical tip thrown in. Your life tho, not mine.


Although I appreciate the sideways compliment, you have essentially no idea what I've aspired to and achieved in meat world. So yet again you're offering an insinuation that's nothing but "unsupported nonsense."

And explaining that we can and should create a fraud-resistant voting system was not a "technical tip." It was offering an "affirmative belief," exactly what you suggested I never do.

lm:

If the choice was between partisan battles and collegial dialog and reflection, I'd opt for the latter. But that's not what's on menu.


Thanks again for your kind words. I find that "collegial dialog and reflection" take place here sometimes, against all odds. And I think my record shows that I enjoy it and support it as much as the next guy. But when I find trash in my mailbox I think it's proper to return it to the sender.
10.18.2008 1:10pm
David Warner:
LM,

"Context. If the choice was between partisan battles and collegial dialog and reflection, I'd opt for the latter. But that's not what's on menu. I've seen this place with and without JBG, and imho it's much the better for his participation."

False dichotomy. You're a partisan, and a good one, and many other interesting things, including collegial and reflective. JBG is the runny Terminator with added OCD. The ultimate irony is how closely his behavior tracks the Bush-hater's caricature of Bush: entirely unreflective or curious about views other than his own. Oh, well. Guess I'll just have to let silence do the job as I have with Smokey, Ace, et. al.
10.19.2008 3:37pm
jukeboxgrad (mail):
warner:

entirely unreflective or curious about views other than his own


As usual, you're full of it. I specifically asked you (multiple times) to defend your claim that I've posted "unsupported nonsense." That would indeed be a chance for you to present your "views," and challenge me to take into account "views other than [my] own." Your response? More pure wind.

Guess I'll just have to let silence do the job


Promises, promises.
10.19.2008 4:33pm