Does SCOTUS deserve its exalted status?

[psionl0]

A real world example: The state of West Virginia has no statute that defines murder. It has statutes about degrees of murder and the punishment, but it is silent as to what a murder actually is. By its silence the common law definition remains in place. Just as here the silence leaves necessity in place.

You clearly didn't read the words "in the absence of any ambiguity" in my post. There is no similarity in this example and a law that applies a blanket ban on all vehicles entering the park.

Everybody can also see that there is the law an already existing necessity exception to criminal acts and thus no need to repeat it in a statute.

You never discussed the possibility that another law may exist that allows emergency vehicles to disregard a law under certain circumstances. You only discussed this particular law in isolation.

 

[Suddenly]

You clearly didn't read the words "in the absence of any ambiguity" in my post. There is no similarity in this example and a law that applies a blanket ban on all vehicles entering the park.

There is no ambiguity in either.

You never discussed the possibility that another law may exist that allows emergency vehicles to disregard a law under certain circumstances. You only discussed this particular law in isolation.

Ah, yes, the need for more context. That might have been an idea to explore before flying off about how simple all this is despite the result being contrary to any sane person's idea of justice. "Wait, that can't be right can it?" etc.

My whole point, this entire time, and I will rephrase it again is that language of any sort is meaningless in isolation. It requires context. In this case this includes the context of being non-sociopathic humans who recognize that a statute forbidding vehicles from the park was never meant to apply to a ambulance giving emergency medical care. Based on that context it is not remotely reasonable to think that was the intent. That should be enough.

That even the generally stern and cruel Anglo/American common law tradition recognizes this as so obvious it goes without saying is more a point of illustration.

 

[psionl0]

There is no ambiguity in either.

Of course there is. You just made a big noise about "murder" being undefined in West Virginia. That means that either it is up to the courts to decide if a specific act constitutes murder or murder is such an unambiguous word that your example is irrelevant.

My whole point, this entire time, and I will rephrase it again is that language of any sort is meaningless in isolation. It requires context. In this case this includes the context of being non-sociopathic humans who recognize that a statute forbidding vehicles from the park was never meant to apply to a ambulance giving emergency medical care. Based on that context it is not remotely reasonable to think that was the intent. That should be enough.

You are just trying to rationalize judges making laws where non exist again.

 

[Suddenly]

Of course there is. You just made a big noise about "murder" being undefined in West Virginia. That means that either it is up to the courts to decide if a specific act constitutes murder or murder is such an unambiguous word that your example is irrelevant.

It's left to the courts. Just like the applicability of necessity is left to the courts. No ambiguity in either. At least to someone who understands how the legal system works.

You are just trying to rationalize judges making laws where non exist again.

Language not having meaning outside of context is just a reality of existence. It isn't some false rationalization for something that doesn't need explained away in the first place.

You seem to be laboring under the misapprehension that the idea of judge made law isn't a completely standard thing in the US legal system. They make law where no law exists. Yes. That is how the interpretive function in the US legal system works. Judges encounter novel issues and write opinions that form a hierarchy of precedents. Those precedents serve as a guide to help navigate these and similar issues in the future. The legislature has the power to abrogate these precedents when they are non constitutional in nature, but such abrogation needs to be direct. Silence in a statute about something tangential does not cut it. Usually the way this works is that a novel situation arises that is a gray area in a statute and the legislature doesn't like the court decision about it so they amend the statute to address the court's decision. That's clarity.

A judge made body of law is a only a problem when people uncritically adopt conservative talking points about the proper role of the judiciary with a total lack of understanding and of what law is as a concept and how it functions. The idea that judge acting like a super-legislature? This isn't what they are even talking about. Activist judges? Yep, not what they mean by that.

Of course, understanding that would require understanding context.

 

[psionl0]

You seem to be laboring under the misapprehension that the idea of judge made law isn't a completely standard thing in the US legal system.

I am well aware that it is the norm - even for legislated law or constitutional law and it is necessary whenever there is a question of how or whether a particular law applies to a situation. However, I don't believe that this should be an excuse to create new legislated laws or void existing legislated laws.

For example, it has been decided that the 5th amendment doesn't apply if your testimony can't (directly) convict you or if it is your property that is suspected of being involved in a crime - not you. Any sensible justice would have said "take that nonsense out of this court room!" but the SC simply said "Hyuk hyuk, sounds good to me"!

 

[Darat]

I am well aware that it is the norm - even for legislated law or constitutional law and it is necessary whenever there is a question of how or whether a particular law applies to a situation. However, I don't believe that this should be an excuse to create new legislated laws or void existing legislated laws.

For example, it has been decided that the 5th amendment doesn't apply if your testimony can't (directly) convict you or if it is your property that is suspected of being involved in a crime - not you.
Any sensible justice would have said "take that nonsense out of this court room!" but the SC simply said "Hyuk hyuk, sounds good to me"!

It's amusing that you want a hyper-literal interpretation to be used by judges but one part of your argument uses a non-hyper-literal example to make your argument!

 

[psionl0]

one part of your argument uses a non-hyper-literal example to make your argument!

Which part is that?

 

[Suddenly]

For example, it has been decided that the 5th amendment doesn't apply if your testimony can't (directly) convict you or if it is your property that is suspected of being involved in a crime - not you. Any sensible justice would have said "take that nonsense out of this court room!" but the SC simply said "Hyuk hyuk, sounds good to me"!

The exclusionary rule that allows the judge to "take that nonsense out of the courtroom" is completely judge made and an example of what you are arguing they shouldn't do. It has absolutely zero support from a textualist perspective. It was created by judges because the deterrent effect of the rule was the only way to get police to not violate people's rights.

Before that, a criminal defendant had at most the remedy of suing the police. Even ignoring the minefield of immunity this is a legal fiction of a remedy. Today's court would never develop an exclusionary rule. and just shrug about cops systematically violating the rights of the citizenry and cast blame anywhere as if it wasn't their decision.

You are throwing out bathwater and there are a lot of babies that go with it.

 

[Suddenly]

It's amusing that you want a hyper-literal interpretation to be used by judges but one part of your argument uses a non-hyper-literal example to make your argument!

He kind of is. His post is hard to parse but I think he's inartfully referencing civil forfeiture as violating the "takings" clause at the end of the fifth amendment. Civil forfeiture where property can be taken if it is an instrumentality or fruit of a crime and that power is used in sketchy ways.

This is completely separate from the right against self incrimination which has nothing to do with property. He seems to be arguing that it should also protect against non-incriminating speech which yeah there that's not exactly a textualist take.

 

[Planigale]

The exclusionary rule that allows the judge to "take that nonsense out of the courtroom" is completely judge made and an example of what you are arguing they shouldn't do. It has absolutely zero support from a textualist perspective. It was created by judges because the deterrent effect of the rule was the only way to get police to not violate people's rights.

Before that, a criminal defendant had at most the remedy of suing the police. Even ignoring the minefield of immunity this is a legal fiction of a remedy. Today's court would never develop an exclusionary rule. and just shrug about cops systematically violating the rights of the citizenry and cast blame anywhere as if it wasn't their decision.

You are throwing out bathwater and there are a lot of babies that go with it.

The interesting thing is that an originalist interpretation would favour the fifth amendment. Remembering that US law was originally just an adaptation of English law at that time (ie independence). Confessions weren't allowed to self incriminate in the 1700's this only became a concept in the 1800's. Confessions were allowed as evidence against others, not against self.

 

[theprestige]

The really funny part is where you're lecturing an actual former judge on how judges interpret the law.

It's not funny to me. There are lots of incompetent judges out there.

The questions of judges do interpret the law, and how they should interpret the law, are matters of public interest. They are well in the domain of laypersons to examine and debate and propose reform.

I say that Suddenly, as a former judge (allegedly), may have some standing to report how some judges have thought and behaved in recent times. I also say that Suddenly has no more standing than anyone else, to say how judges should think and behave, or even whether his own thoughts and behaviors as a judge were what his community wanted or needed.

 

[JayUtah]

It's not funny to me. There are lots of incompetent judges out there.

There are far more incompetent lay people.

 

[theprestige]

There are far more incompetent lay people.

Cool, now make that into a coherent justification for chiding psion because he decided to argue jurisprudence with Suddenly.

"Some people are stupid, so psion should know his place and keep his mouth shut when a bona fide anonymous alleged former judge is pontificating" isn't really it.

 

[JayUtah]

Cool, now make that into a coherent justification for chiding psion because he decided to argue jurisprudence with Suddenly.

It was fine until the argument broke down into psion’s claiming Suddenly’s well founded attempt to correct his miscenptions were “absurd” and accusing him of having an ulterior motive. Obviously arrogant bad faith arguments from an unqualified lay person.

 

[psionl0]

This is completely separate from the right against self incrimination which has nothing to do with property. He seems to be arguing that it should also protect against non-incriminating speech which yeah there that's not exactly a textualist take.

Asset forfeiture and testifying against one's self are both in the 5th amendment so I don't know why my post confuses you.

The 5th amendment clearly says, "nor shall be compelled in any criminal case to be a witness against himself". To say that there are circumstances where this doesn't apply is clearly "not exactly a textualist take".

 

[Suddenly]

Asset forfeiture and testifying against one's self are both in the 5th amendment so I don't know why my post confuses you.

You joined two ideas in the same phrasing and it reads on the surface like you are claiming that property falls within self incrimination. Which would be silly. That's what I was referring to as inartful.

The 5th amendment clearly says, "nor shall be compelled in any criminal case to be a witness against himself". To say that there are circumstances where this doesn't apply is clearly "not exactly a textualist take".

The words "testifying against himself" means incriminating testimony. If testimony is not incriminating then it isn't against yourself.

 

[psionl0]

The words "testifying against himself" means incriminating testimony. If testimony is not incriminating then it isn't against yourself.

Slick!

 

[Trebuchet]

Haven't read the thread. just because. But I have an answer.
Not any more.

 

[dann]

It's not quite how they do it. When they run the shadow Docket scam they put an instant hold on it but hear no legal argument and sit on it for a year or so, then the point is moot.
When states threatened to keep Trump out of the election they have an instant hold them gave their full response a short time later.
When Trump was claiming executive privilege for the stolen documents case they put an instant hold on it then sat on it for about a year.

The shadow docket is the main theme of this week's Last Week Tonight:

Epic Fury, Project Freedom & The Shadow Docket (Last Week Tonight with John Oliver on YouTube, May 11, 2026 – 38:17 min.)
John Oliver discusses moving past the 60-day mark of the war in Iran and what it has to do with kamikaze dolphins. Then, he turns to the shadow docket – a shortcut to the Supreme Court which is rapidly advancing the Trump administration’s agenda. Plus some stuff about Chet Hanks, for good measure.

It begins at 14:17-->

 

[dann]

The shorter version without all the extras:

The Shadow Docket (Last Week Tonight with John Oliver on YouTube, May 11, 2026 – 22:16 min.)
John Oliver discusses the shadow docket – a shortcut to the Supreme Court which is rapidly advancing the Trump administration’s agenda. Plus, some fun and unexpected facts about turtles! You know, to spice things up.