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The Courts under Trump - Mega Thread


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1 hour ago, BigRedBuster said:

It's one of those cringy things that you have to take emotion out of it and look at the law.

 

1 hour ago, Ulty said:

Hey, I agree with what you are saying. It is quite easy to imagine that someone being directly targeted with the n-word, especially from your boss, creates a hostile environment. A single incident can sometimes be enough in terms of severity to cross the "severe or pervasive" threshold.

 

But case law, across probably every circuit and including SCOTUS, has consistently put a very high threshold on determining harassment, and every case has to take into account the context surrounding the situation. I don't know the details of the case that was mentioned in that tweet, but as she states in her opinion, the evidence would have to show that the word itself changed altered the terms and conditions of his employment, and it sounded like there were other factors at play even before the word was uttered.

 

And that situation sucks, because I think we can all reasonably assume that someone who would call someone else the n-word is a racist a$$hole, and this view may have likely impacted other elements of his supervision over this employee. But the evidence has to bear it out, and actual evidence of this stuff is very hard to find.

 

That is why it is so important to change the culture in the workplace. Most racism at work is subtle, and a lot of bias is implicit. Workplaces need sound policies and training, leaders need to embrace a culture of inclusiveness, racism (even microagressions) need to be called out, uncomfortable conversations need to be had, and leadership needs to embrace a culture of inclusiveness (not just leadership as work, but also our public leaders, which is why Trump and the current crop of Republicans need to be tossed out). 

 

In this particular case, there are other things we don't know (maybe if I read the full legal report, but I don't plan to here): What else happened in the workplace with this employee? How did the company respond when it found out the supervisor used this word? How are their policies and practices?

 

Those of us who investigate cases of harassment and discrimination have to abide by the myriad court decisions that have already defined what is and isn't a hostile work environment to use as our legal standard. And we have to work damn hard to see if there are other clues that can substantiate harassment and discrimination. Because we want to find this $h!t and address it. 

 

1 hour ago, Ulty said:

 

In rulings involving freedom of speech, "fighting words" are not necessarily considered protected speech. Calling someone the n-word to their face can be considered a fighting word. 

We're talking about whether ACB should be a SC judge, where ultimately the laws of the land are interpreted. So saying that other courts have interpreted the law to mean this, isn't really a good defense of her ruling. We're looking at whether her ruling makes sense in terms of how the law should be interpreted. Basically, ACB will be in a position to overturn previous court rulings, so we need to be able to look past those and think about how her rulings would change the way laws are interpreted.

 

And @Ulty's last post above makes my point: somehow n***** is a "fighting word" not protected by free speech, but is not enough to make a "hostile environment". Think about the lunacy of that contradiction: if someone calls you n***** at work, you can punch them in the face and be protected from assault since that's "fighting words", but somehow that's not a "hostile environment".

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1 hour ago, TGHusker said:

He is wrong. And he uses a red herring to distract us from the truth of originalism.  It is this type of dishonesty that keeps us from trying to understand the perspective that we don't agree with.   As she said later in the hearings, after the dinner break, you look at the original intent and you 'modernize it' (my words) to today's realities.  She applied it to unreasonable searches - the founders could not see the day of the internet, police infra red scanners, airplanes etc.  But she said based on the original intent of the constitution, a policemen would be in violation if they stood outside your house without a warrant and was just randomly scanning homes in search of heat lamps that would reveal that you were growing weed.

 

A couple definitions:

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.

 

In United States constitutional interpretation, the living Constitution or loose constructionism is the claim that the Constitution and other constitutions, holds a dynamic meaning, evolving and adapting to new circumstances, without being formally amended.

 

So an originalist would argue that the constitution or a law needs to be amended for there to be a change in the intent of the law. This is different than application of intent of existing law to a present reality - as I noted above regarding unreasonable search and seizures.   Intent and application are 2 different things with application being reliant on the original intent.

 

Living constitutionist want to bypass the whole idea of amending the constitution or laws that are being evaluated.  It, in my opinion, makes the judge the law maker. It is the 'easy way' out.  The legislature branch of govt doesn't have to do anything, the court can take the heat for their new interpretations.  I think it is a way the congress gets off the hook but it also gives away its constitutional responsibility/authority to legislate and to amend.  This cuts both ways - conservatives and liberals can use the living constitution to their advantage.

 

He is not wrong. It's very clear the writers meant for black people to be counted as 3/5 of a white person as that was literally their intent. 

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9 minutes ago, RedDenver said:

We're talking about whether ACB should be a SC judge

If that's what we are talking about, then hell no, she shouldn't be a SC judge. For a variety of reasons. But I was responding to your "think about what you are saying" comment.

 

Her ruling in that racial discrimination case is really not controversial in legal circles at all and is consistent with hundreds, if not thousands of similar cases, following established precedent. Is there something remarkable in this particular case that should have led her to overturn well-entrenched precedent? If not, that would be judicial activism, right?

 

That's not to say that her other judicial opinions are good, or that she has adequate experience to be on the Supreme Court, or that every single member of the GOP shouldn't f#&% themselves, but this particular case doesn't move the needle for me. Now, if there are any particular facts about that case that show that the decision is wrong, or other bits of nuance that haven't been examined, I'm all ears and willing to discuss. I haven't read that case, is there some compelling piece of evidence that was overlooked?

 

Regarding "fighting words" and protected speech vs racial harassment in the workplace...those are apples and oranges and do not use the same legal standards for analysis.

 

 

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Based on an NPR article I just read, there's a lot of legal nuance to why she and the other two judges on the panel voted the way they did in that N-word case.

 

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The unanimous three-judge panel ruled that the employee had failed to prove that he had been fired because of his race. In her opinion, Barrett wrote that the N-word is an "egregious racial epithet," but she argued that the employee couldn't win by simply proving the N-word was said to him.

 

Booker noted that Justice Brett Kavanaugh, when he served on the U.S. Court of Appeals for the D.C. Circuit, argued the exact opposite, writing that being called the N-word in and of itself creates a hostile work environment.

Barrett defended her decision, saying that Booker mischaracterized what she said. The key part of that case was that the defendant did not "tie the use of the N-word into the evidence that he introduced for his hostile work environment claim," Barrett said. He based his argument on the use of expletives spewed at him, but those expletives presented to the court did not include the N-word.

"And so as a panel, we were constrained to decide based on the case the plaintiff had presented before us," Barrett explained. "So the panel very carefully wrote the opinion to make clear that it was possible for one use of the N-word to be enough to establish a hostile work environment claim if it were pled that way."

 

It sounds like the plaintiff and his lawyers didn't effectively argue their case more than anything else, at least in a way that would've made the use of the N-word more notable. It sounds like it wasn't even brought up as one of the primary reasons for the 'emotional distress' the plaintiff claimed. Kavanaugh's dissenting opinion is of interest, though.

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2 hours ago, RedDenver said:

He is not wrong. It's very clear the writers meant for black people to be counted as 3/5 of a white person as that was literally their intent. 

You totally missed my point.  Yes the original intent was 3/5 put subsequent to that we have new amendments (civil war amendments) which gave full right and privileges to African Americans.  So his point is wrong and my point is confirmed -  Amendments 'changed' the intent of the constitution.  Originalist would look at the original language as well as the amended language as amended. The ability to amend the constitution makes the constitution a living document by action of Congress versus by action of 9 judges.   Further more, as I mentioned, an originalist would look at the law or the constitution and apply that original intent to the modern era - as I mentioned with the unreasonableness search provision. 

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2 hours ago, Ulty said:

Regarding "fighting words" and protected speech vs racial harassment in the workplace...those are apples and oranges and do not use the same legal standards for analysis.

This is where we disagree. They are not apples and oranges, and the legal standards should be changed because it's absolutely ridiculous right now, which is part of the job of the SC in changing the interpretation of the law. If the SC simply is there to just keep doing whatever has been done before or what other courts have already ruled, then there's no need for a Supreme Court.

 

37 minutes ago, Enhance said:

Based on an NPR article I just read, there's a lot of legal nuance to why she and the other two judges on the panel voted the way they did in that N-word case.

 

 

It sounds like the plaintiff and his lawyers didn't effectively argue their case more than anything else, at least in a way that would've made the use of the N-word more notable. It sounds like it wasn't even brought up as one of the primary reasons for the 'emotional distress' the plaintiff claimed. Kavanaugh's dissenting opinion is of interest, though.

Interesting, thanks for the additional context.

 

But part of why I have issues with ACB on this issue is she won't provide an opinion on her own judgement. She's been nominated to a position where she can literally change the way these things are interpreted, but she's pretending like she has no opinions at all.

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6 minutes ago, TGHusker said:

You totally missed my point.  Yes the original intent was 3/5 put subsequent to that we have new amendments (civil war amendments) which gave full right and privileges to African Americans.  So his point is wrong and my point is confirmed -  Amendments 'changed' the intent of the constitution.  Originalist would look at the original language as well as the amended language as amended. The ability to amend the constitution makes the constitution a living document by action of Congress versus by action of 9 judges.   Further more, as I mentioned, an originalist would look at the law or the constitution and apply that original intent to the modern era - as I mentioned with the unreasonableness search provision. 

Let's take another example: the Constitution only allows Congress to "raise and support Armies" and "provide and maintain a Navy". There's been no Amendment to allow for the Air Force (or Space Force). Should the Air Force be disbanded? An originalist can't claim that the original intent included an Air Force since "Armies" and "Navy" are specifically written and not a general intent of defense.

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7 minutes ago, RedDenver said:

This is where we disagree. They are not apples and oranges, and the legal standards should be changed because it's absolutely ridiculous right now, which is part of the job of the SC in changing the interpretation of the law. If the SC simply is there to just keep doing whatever has been done before or what other courts have already ruled, then there's no need for a Supreme Court.

Yes, apples and oranges. The First Amendment and the Civil Rights Act are very different things and are interpreted separately. You are conflating two different scenarios regarding use of the n-word. 

 

It also seems like you have a fundamental misunderstanding of how the courts work. SCOTUS can't just change legal standards because you find them ridiculous (I find some of them ridiculous too, btw). They typically do keep in place what has been done before. That's what precedent is, and they don't automatically review everything. Things often stay settled for a long time until there is a compelling reason to review it, or a situation that is so unique that SCOTUS needs to settle the issue. 

 

Read this about the certiorary process.

 

Now, before you continue arguing, do you plan to argue the facts of a specific case? Or just the philosophical notion of what a judge should do? If it's the former, cite some specific evidence so we are on the same page. As I said, I haven't read the details of that case. I'm willing to engage, but I'm not excited about reading 7th circuit case law. You can do the homework on that. But if you are arguing philosophy, knock yourself out, that does interest me. Talking scenarios and hypotheticals can be fun.

 

 

7 minutes ago, RedDenver said:

But part of why I have issues with ACB on this issue is she won't provide an opinion on her own judgement. She's been nominated to a position where she can literally change the way these things are interpreted, but she's pretending like she has no opinions at all.

I totally agree with you here. Valid criticism.

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32 minutes ago, RedDenver said:

Let's take another example: the Constitution only allows Congress to "raise and support Armies" and "provide and maintain a Navy". There's been no Amendment to allow for the Air Force (or Space Force). Should the Air Force be disbanded? An originalist can't claim that the original intent included an Air Force since "Armies" and "Navy" are specifically written and not a general intent of defense.

Again you miss my point, as Amy noted last night in her testimony, you look at the original intent - raise money for the military.  The military now includes the air force, space force and in the future the galactic force - so when you apply original intent, an originalist will see that the founders meant for the Congress to fund the military which at that time was the army and the Navy.   Amy used that very example in her testimony. She said the founders could not foresee an air force but a modern interpretation of their intent would show that there intention would be to fund the air force - the didn't expect the army to be funded and the air force rely on the sale of girl scout cookies:) - although us tax player may prefer that.

So the big diffierence isn't that originalist are inflexible in their interpretation but that they believe that the remedy for any changes needed (to make the law living' so to speak) remains with 'the people' through the action of the peoples' representation in congress and not with 9 justices.  Justices are not to make law but to interpret what is.  If a law or portion of the constitution is out of date, then it is the Congress that must address this.  And congress has done this many times with all of the amendments.  The constitution is not meant to be a document that is tossed and turned by every cultural shift of the wind. It is meant to be a rock that is changed slowly so that it can be a foundation that we can stand on but he changeable via amendment and as needed reading its original intent and placing that intent into today's reality.  

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56 minutes ago, RedDenver said:

But part of why I have issues with ACB on this issue is she won't provide an opinion on her own judgement. She's been nominated to a position where she can literally change the way these things are interpreted, but she's pretending like she has no opinions at all.

This has been the hallmark of practically every nominated candidate for the SC that I can remember. Whenever the opposing party questions a potential judge on a 'pet' issue (not diminishing the seriousness of the issue), the candidate normally will respond in this way - they can't say specifically what they would do prior to hearing the facts of a case - and rightly so.   Amy, herself, said there have been times she has changed her opinion while 1. listening to the argument of the other justices  2. While she is in the process of writing her own opinion. She said there is a court phrase called:  "Doesn't Write" - which means as you write out an opinion you come to realize this really doesn't write out or work out the way I was thinking it would.  The process of writing sometimes slows us down and we can see the whole picture better.  These 2 points that she mentioned also helps her to work through her own biases and to look at the case on its own merit and through the lens of the law and not her bias. 

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21 minutes ago, TGHusker said:

Again you miss my point, as Amy noted last night in her testimony, you look at the original intent - raise money for the military.

After some additional research, I've discovered that we've been arguing over two types of "originalism": textual vs contextual. What I've been arguing against is "textualism" or "textual originalism". You've been arguing for contextualism, but ACB is both an originalist and a textualist, so let me clarify what I'm saying.

 

According to ACB as a textualist, she could not interpret anything beyond what the text of the Constitution says, so she cannot interpret "Armies" and "Navy" into "military". In her own words:

Quote

Barrett further defined textualism, or the way she would interpret laws, "similarly to what I just said about originalism. For textualism," she said, "the judge approaches the text as it was written, with the meaning it had at the time and doesn't infuse her own meaning into it."

 

I'm not sure whether I agree with contextual originalism or not. UMich law school has an interesting discussion on how it applies to marriage equality:

https://www.law.umich.edu/newsandinfo/features/Pages/ConstitutionDay_092215.aspx

 

And here's an excellent Vox piece on originalism, it's history, and how it applies to ACB: 

https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court

 

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1 hour ago, RedDenver said:

After some additional research, I've discovered that we've been arguing over two types of "originalism": textual vs contextual. What I've been arguing against is "textualism" or "textual originalism". You've been arguing for contextualism, but ACB is both an originalist and a textualist, so let me clarify what I'm saying.

 

According to ACB as a textualist, she could not interpret anything beyond what the text of the Constitution says, so she cannot interpret "Armies" and "Navy" into "military". In her own words:

 

I'm not sure whether I agree with contextual originalism or not. UMich law school has an interesting discussion on how it applies to marriage equality:

https://www.law.umich.edu/newsandinfo/features/Pages/ConstitutionDay_092215.aspx

 

And here's an excellent Vox piece on originalism, it's history, and how it applies to ACB: 

https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court

 

I'll ck it out later as I need to go home and EAT!!  Thanks  I do believe she address both of those concepts.  I'll read you links later.

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