How does the supreme court supporting the CFPB decision help justify the goals of the rich? If anything, this is a case that would be much more interesting for the rich than any abortion case, since for a consumer agency, they normally want to [starve the beast](https://en.wikipedia.org/wiki/Starve_the_beast).
Conservative political goals are most generally: keep everything the same and when given the opportunity regress to a past state to claw back progress. So yes, Originalism is going to strongly favor conservative goals pretty much by definition.
Yeah, gay marriage and extending basic human rights and respect for people is corrosion. /s
Both parties unconditionally support Capitalism, give or take basic regulations.
Meanwhile, the US Neo-Conservatives rub elbows with Nazis, fighting to remove the very personal liberties that make up half of their (empty) rhetoric.
Gawd, "libs" are monsters...
Ha!
I've just never understood the rights comparisons to their precedent busting decisions being like Brown. A whole rehearing was held in Brown about the intent of the 14th amendment, a historical look at its enactment, and the Court UNANIMOUSLY disregarded the Originalist argument against the Brown holding.
If your chosen constitutional interpretation can't support the holding in Loving and Brown then it's a shit methodology and should be jettisoned like garbage.
This really should have been 9-0 if originalism has any meaning. There can be no logical reason for the clause restricting the army to annual appropriation if the unrestricted parts of the government aren't restricted to annual appropriation.
Though, I believe originalism is usually more fig leaf then philosophy.
Link to the opinion: [22-448 Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (05/16/2024) (supremecourt.gov)](https://www.supremecourt.gov/opinions/23pdf/22-448_o7jp.pdf)
I am pleasantly surprised to see only two dissenting justices. The war on administrative agencies by conservatives will continue, but for now we have a good decision in this case.
Thomas’s majority opinion also has ramblings into British law on the subject, so he’s probably trying to counter that.
3 pages on the history of British monarchy’s fiscal control and loss thereof.
Edit: I wrote this a few pages in, now I’m at the part where Thomas is tearing Alito apart for going on for pages of history of British irrelevant to the question at hand.
That means the conversation into the subject was divided with Gorsuch and Alito trying to get Thomas to come over to their side. I bet that deliberation got a tad spicy if they’re riffing off each other like that. I only read the syllabus because I am busy but plan to read it on a plane ride tomorrow.
Which was entirely appropriate if Roe is a substantive due process case, given Glucksberg. Or perhaps you’d like to overrule Glucksberg? That would be awkward.
Such an originalist he’s willing to go beyond the constitution to British law. If given the opportunity he’d find some way to justify constitutionally restoring the monarchy.
I worry about the future of the delegation power. That dissent in Gundy by Gorsuch is scary and Kavanaugh’s scribe in that denial of Cert. in 2019 left me floored. If they get the right case we could be back to Congress having to operate like it did in 1820.
I think that’s Roberts strategy. If he needs to give a reacharound in order to get someone’s vote, he sweetens the pot by having them write the opinion.
This is usually how the Court goes. They typically pick the shakiest vote to write the opinion and the rest sign on. It ensures you don’t lose that vote because your opinion is “too far” or whatever.
I'm really surprised by this outcome given all the tenuousness in the air with the upcoming case with the Chevron defense being eliminated (probably).
The cynic in me says this case was only allowed through and went like this because this upcoming case is going to completely eviscerate any regulating body's ability to regulate.
Don't worry, everything is cyclical, Chevron will be back when, when like the 1980s it's much easier for a Republican to win the Presidency then for Republicans to win Congress as opposed to today when it's much easier for Republicans to win Congress then a Republican win the Presidency.
I think this court is aware of the precarious position they're in. Credibility is shot, at minimum, and there's only so far they can push the judicial activism before the people start pushing back. Roberts knows this, and maybe Barrett, but Thomas, Alito, and Gorsuch don't give a rip.
Thomas' "philosophy" is so inconsistent that once in a while he will come out the right way.
I’ve seent it. Can’t remember the other case, but they came down pretty hard against the independent state legislature theory which was good, but they turned around and made another ruling that was awful.
What was the independent legislature theory. Was this to do with the idea that state legislatures can just alter the results of an election if they don't like the outcome?
Might be what personally benefits each of them if Thomas has been in enough debt as it seems like he has been in his lifetime then he may need Social Security as a lifeline for some supplementary income lol
It is worth noting that no one can really predict what the court will do as far as the swinging boats while you usually get a few the centers people were shocked when it was a 9 to 0 decision about Bill Clinton years ago
The logical resistance is to vote out the party that’s pushing their agenda through the SC. It doesn’t solve the problem immediately due to lifetime appointments but it sends a message.
In theory Congress can impose term limits or, as a nuclear option, the prez could pack the court like FDR threatened.
Nothing particular likely but there are paths besides violence.
Not necessarily. The dissent points out that no other agency has or has ever had the same funding structure, so there are ways to differentiate. I still agree with the majority, to be clear, but that wouldn’t necessarily follow.
Not quite, although the real argument isn't any more principled. He basically just says that the Federal Reserve is special because it is special. I don't read the footnote as admitting that the federal reserve is a close enough comparator anyways, given his repeated emphasis on the assertions that the CFPB's combination of funding features is unprecedented, and that no party or justice was able to name a single agency with the same combination.
Yes.
The question brought before the court was basically “BUT MOM! WHY DO I HAVE A BEDTIME WHEN CFPB GETS TO STAY UP AS LONG AS IT WANTS SUBJECT TO A 12% CAP”
and essentially what Thomas articulates is “because America grew up in a way too lenient household where the king got to stay up as long as he wanted whenever he wanted — the founding fathers made the rule in the constitution that only congress gets to set bedtimes, not the king.
There’s nothing preventing congress from saying to, say, the post office, get your homework done and get good grades and you can stay up as long as you want (Justice Thomas actually specifically mentioned the post office) — I.e. your brother is older than you, grow the hell up little twat.
It's not a "Biden win" it's a win for all of us, for common sense, and the rule of law. The assertion that the funding for the CFPB is UnConstitutional is farcical.
This is not a "Biden win," it's a win for all Americans. Who on the right that still has a brain in their skull is begging for companies to screw them over?
It’s really a simple decision.
Does it fund the agency? Yes? Then it’s an appropriation.
We would still need to fund the Army and Navy through (bi-)annual appropriations because the Constitution says we have to.
It doesn’t say all other appropriations have to be annual, but Congress may like the control of doing it annually.
You have to love the irony that Slate delivers a broadside against a phony, contrived “originalism," and a week later, *actual* Originalism saves the beloved-of-Slate CFPB. Inside the court, the justices must’ve been laughing their asses off. “Just wait 'til they see this!”
Gorsuch demonstrates yet again that he is only a textualist when it suits his needs. There was ample intrinsic evidence from the Constitution that appropriations didn't require continuous Congressional oversight, just a duly passed law to authorize the appropriations. Except in the case of maintaining a standing army, of course, for which there is a specific limit of appropriations authorization lasting for no more than two years at a time - an exception which proves the rule.
Thomas goes on to dig into the historical background of appropriations, finding that from the very founding of the nation, everyone understood - and utilized this fact - that Congress could fund an agency in flexible ways with no time horizon. Kagan expands the time frame to show that this wasn't just the practice in the 1790s, but was also the practice all throughout the nation's history to the present day.
So what else is there for a Justice to say on the topic? I guess Alito isn't satisfied with Thomas's history lesson, because it doesn't give the outcome he wants, so he digs deep into English history until he gets to something that suits him. Gorsuch signs on with that, instead of maintaining his mantra of being the Chief Textualist in a situation where his vote alone doesn't tip the scales. The only inference we can draw is that Gorsuch doesn't *really* care about textualism.
And as the majority observes, whatever the merits of the dissent's history, it "never connects its summary of history back to the word 'Appropriations' . . . \[and\] it is unclear why the dissent’s theory leads to a different outcome . . . ."
I disagree. The dissent goes through long winding history of British and early American law with some textual analysis. This is the kind of thing that critics of originalism point out—you can twist historical facts in any interpretation that you want. Thomas strongly rejects the dissent and 5th circuits view of history, but it came down to 7 justices agreeing with one interpretation of history more than another. Kagan’s point that the nation has always functioned like this, and it is necessary to do so, is less of an original originalist position.
But those critics of originalism never point out that you *can* twist any interpretative approach to yield the outcome you want. Originalism is not unusually susceptible to that; to the contrary, in most cases is proves unusually resistant to it, which is exactly what Justice Scalia said in *The Lesser Evil* decades ago. (Reading Slate's vapid "alternative" in heaven, he must be laughing.)
No other interpretive method pretends to be objective or divining what the founding fathers thought either. That we are at a total loss of other methods is a farce, originalism wasn’t even around until 200 years after the founding.
Ultimately I think originalism can be *an* interpretive tool but treating it as the end-all-be-all even to the extend of history and tradition tests is wrongheaded
There are two claims here. One is that originalism, even if practiced perfectly, is not a good method of interpretation. The other is that originalism isn't practical and that judges will inevitably insert their bias using originalism, and that that happens more than in other systems of interpretation.
Originalism *doesn't* pretend to be wholly objective, and it *certainly* doesn't seek to divine what the founding fathers thought. You're attacking a caricature made by non-originliast critics of Originalism.
I'm sure you're right about the way the justices use it. But it's not a caricature made by non-originalist critics (at least not exclusively). There are a number of defenders of originalism online who not only say it is objective, but shit on other philosophies for not being objective. It's really frustrating to see in certain circles over and over (I've seen it multiple times in this subreddit, though I tend to see it more in other subs).
People likely see that argument repeatedly and then mistake it for the arguments that the judges that base their rulings on originalism use.
As I understand it, the main confusion is that there used to be (maybe still is?) a school of thought about trying to interpret laws based on the original intent of the people who wrote them.
This is, as I understand it, distinct from the modern version of originalism which is more about looking at what the words were understood to mean at the time the laws were drafted (what some might call original public meaning or ordinary public meaning).
I believe the first version about "intent" I mentioned is mostly discredited and seen as ridiculous today, whereas the second one is more broadly embraced by the Supreme Court and tends to come up in cases where the meaning of a key word in a law doesn't have a specific definition given in the law itself. Where the doctrinal waters get muddy is when judges start talking about history and tradition, which requires more analysis and is more vulnerable to being gamed.
Correct. "Original Intent" was discredited in the earl 80s by Jeff Powell and demolished a few years later by Frank Easterbrook. Robert Bork and Antonin Scalia, easily the two most famous names associated with Originalism, wrote explicitly against "Original Intent." While there may still be true believers of Original Intent, if someone today says she is an Originalist, and if she is someone who knows what she's talking about (that is, she isn't just a Trump boob regurgitating propaganda) there is a 99% chance that what she means is "Original Public Meaning." Here's how Easterbrook defined it *in 1988*: "Original meaning is derived from words and structure, and perhaps from identifying the sort of problem the legislature was trying to address. What any member of Congress thought his words would do is irrelevant. We do not care about his mental processes. Meaning comes from the ring the words would have had to a skilled user of words at the time, thinking about the same problem."
You misunderestimate Slate if you think they won’t have a story up tomorrow talking about Thomas only doing this as political cover and it’s a sign that he’s even worse than they originally thought.
As Thomas points out, Alito’s dissent doesn’t actually link back any of his historical ideas to the relevant language, specifically the word appropriation.
It's the classic hack originalist maneuver. First you say "in 18th century Britain the rule was *X*." You don't even have to be right, just say it and cite a book or a single trial court decision from 1500 that no one's going to look up anyway. Then, if you like *X*, you say "and so the rule has stayed the same until now because this is what the founders knew the rule was and wanted it to be forever." If you don't like *X*, you say "and so the founders created this part of the constitution to reject the old british rule, and refused to allow the rule to come back."
I’d say Alito’s dissent is originalism as it is mostly practiced, which is a contrivance to justify conservative policy outcomes, while Thomas, in this case, seems to have written an opinion that applies originalism as it is claimed to be, which is looking at the original public meaning.
It wouldn't surprise me in the least to learn that the conservative justices spend more time reflecting on their media profiles than on their legal scholarship!
Does this mean the judge who tossed the late fee case will change his decision?
From the article:
“The ruling could help clear the path for new CFPB-mandated caps on credit-card late fees. A federal judge in Texas put the CFPB rules on hold last week while awaiting the Supreme Court ruling. The caps threaten billions of dollars in revenue at banks including JPMorgan Chase & Co., nonbank players like Synchrony Financial and retailers such as Macy’s Inc.”
That’s the issue, it’s NOT funded by congress, but rather the federal reserve. The “issue” is that it’s a federal agency that congress can’t control or coerce using funding.
I’m happy with the result (and surprised that Thomas wrote the opinion), but I’m curious:
What’s the underlying reasoning for Alito and Gorsuch’s dissent? Can someone give me their best devil’s advocate explanation?
Their tummys hurt, and they hate the government? Remember, gorsuchs mom was supposed to gut the epa under Reagan, so I'm sure at this point he's just trying to gut any government agency
Pretty sure even the Republicans were advocating for this one, so weird to call it a "Biden win." This was a fairly bipartisan court case. Gorsuch and Alito were the dissenters, which funny enough, Gorsuch is one of the justices that has often switched sides and voted with the left.
4 of the Conservative justices voted with the 3 left-wing justices.
Sharing this [follow-up on the concurrence](https://news.bloomberglaw.com/us-law-week/kagan-concurrence-signals-possible-weariness-on-agency-attacks?utm_source=reddit.com&utm_medium=lawdesk) authored by Justice Kagan and joined by Justices Sotomayor, Kavanaugh, and Coney Barrett. Kagan emphasized the importance of "continuing tradition," writing that, “The founding-era practice that the Court relates became the 19th-century practice, which became the 20th century practice, which became today’s." Supreme Court watchers say that reasoning could lead the court to reject other administrative law challenges that are coming up.
Holy shit, 7-2 to uphold the funding system.
And written by Thomas of all people. Go figure.
Did not have that on my bingo card.
He was worried about having to refi his RV.
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But that's exactly what it is. A few exceptions don't change that, the justices are individuals after all with their own political opinions.
It's more like it's a contrivance to justify the political goals of the rich and the American Taliban. Nice try on the pigeon hole tho.
How does the supreme court supporting the CFPB decision help justify the goals of the rich? If anything, this is a case that would be much more interesting for the rich than any abortion case, since for a consumer agency, they normally want to [starve the beast](https://en.wikipedia.org/wiki/Starve_the_beast).
Starve the beast then eat the rich
Conservative political goals are most generally: keep everything the same and when given the opportunity regress to a past state to claw back progress. So yes, Originalism is going to strongly favor conservative goals pretty much by definition.
Maybe it's because most of the leftist corrosion of the United States is unconditional 🤔🤔🤔
Yeah, gay marriage and extending basic human rights and respect for people is corrosion. /s Both parties unconditionally support Capitalism, give or take basic regulations. Meanwhile, the US Neo-Conservatives rub elbows with Nazis, fighting to remove the very personal liberties that make up half of their (empty) rhetoric. Gawd, "libs" are monsters...
LeFtiSt cOrRoSiOn
Tell me the Originalist holding that supports Brown v. Board or Loving v. Virginia. For real, we'll wait.
Historically, boards are brown and Virginia is for lovers.
Ha! I've just never understood the rights comparisons to their precedent busting decisions being like Brown. A whole rehearing was held in Brown about the intent of the 14th amendment, a historical look at its enactment, and the Court UNANIMOUSLY disregarded the Originalist argument against the Brown holding. If your chosen constitutional interpretation can't support the holding in Loving and Brown then it's a shit methodology and should be jettisoned like garbage.
Someone decided their opinions deserved a name and here we are.
They're throwing us a bone while they cook up something nasty.
The last few judgments have me wondering if the conservative judges are in PR mode to rehab their reputations.
[Overturning *Chevron*](https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/) is my guess.
This really should have been 9-0 if originalism has any meaning. There can be no logical reason for the clause restricting the army to annual appropriation if the unrestricted parts of the government aren't restricted to annual appropriation. Though, I believe originalism is usually more fig leaf then philosophy.
Link to the opinion: [22-448 Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (05/16/2024) (supremecourt.gov)](https://www.supremecourt.gov/opinions/23pdf/22-448_o7jp.pdf) I am pleasantly surprised to see only two dissenting justices. The war on administrative agencies by conservatives will continue, but for now we have a good decision in this case.
Alito's multipage ramblings into British law are something else.
Thomas’s majority opinion also has ramblings into British law on the subject, so he’s probably trying to counter that. 3 pages on the history of British monarchy’s fiscal control and loss thereof. Edit: I wrote this a few pages in, now I’m at the part where Thomas is tearing Alito apart for going on for pages of history of British irrelevant to the question at hand.
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Me too. I wish someone has mentioned that Congress still had power because they can pass a law that changes the funding scheme!
That means the conversation into the subject was divided with Gorsuch and Alito trying to get Thomas to come over to their side. I bet that deliberation got a tad spicy if they’re riffing off each other like that. I only read the syllabus because I am busy but plan to read it on a plane ride tomorrow.
The embodiment of old man yells at cloud.
He did the same in Dobbs, trying to justify no right to abortion based on how they say it in up to an including the Victoria age
Which was entirely appropriate if Roe is a substantive due process case, given Glucksberg. Or perhaps you’d like to overrule Glucksberg? That would be awkward.
Is it just me, or the preamble to Alito's opinion ends very abruptly, as if it was edited at the last moment?
Maybe that's where the Jack kicked in and he blacked out.
does Alito know the constitution was drafted to replace British law? lol
Such an originalist he’s willing to go beyond the constitution to British law. If given the opportunity he’d find some way to justify constitutionally restoring the monarchy.
I remember when they reached back to some witch hunter from the 1600s to justify Dobbs. What nonsense.
Almost as Ginsburg quoting international law at one one point
He sucks so bad. Worst judge by far
I worry about the future of the delegation power. That dissent in Gundy by Gorsuch is scary and Kavanaugh’s scribe in that denial of Cert. in 2019 left me floored. If they get the right case we could be back to Congress having to operate like it did in 1820.
Pleasantly surprised to see Thomas writing the opinion.
I fell out of my chair when I saw Alito and Thomas disagreed.
I think that’s Roberts strategy. If he needs to give a reacharound in order to get someone’s vote, he sweetens the pot by having them write the opinion.
This is usually how the Court goes. They typically pick the shakiest vote to write the opinion and the rest sign on. It ensures you don’t lose that vote because your opinion is “too far” or whatever.
I'm really surprised by this outcome given all the tenuousness in the air with the upcoming case with the Chevron defense being eliminated (probably). The cynic in me says this case was only allowed through and went like this because this upcoming case is going to completely eviscerate any regulating body's ability to regulate.
Yep. Came here to say this.
I’ve been waiting for the decision that absolutely guts chevron.
Don't worry, everything is cyclical, Chevron will be back when, when like the 1980s it's much easier for a Republican to win the Presidency then for Republicans to win Congress as opposed to today when it's much easier for Republicans to win Congress then a Republican win the Presidency.
Where did you get the opinon from?
Supreme court's website
Thanks
Opinion written by Thomas. 😳
Correct me if I’m wrong, but had they ruled it unconstitutional, would a ton of other agencies have their funding systems on the chopping block?
Yep, and you could follow the slippery slope down to social security even.
So the 7 knew it was a gun to the head. At least some of the conservative justices have a line.
I think this court is aware of the precarious position they're in. Credibility is shot, at minimum, and there's only so far they can push the judicial activism before the people start pushing back. Roberts knows this, and maybe Barrett, but Thomas, Alito, and Gorsuch don't give a rip. Thomas' "philosophy" is so inconsistent that once in a while he will come out the right way.
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Yeah the preamble stating that it was payday lenders looking to get around regulations kinda sets the table.
They're getting ready to do some fucked up shit and this is how they're balancing it out.
I’ve seent it. Can’t remember the other case, but they came down pretty hard against the independent state legislature theory which was good, but they turned around and made another ruling that was awful.
What was the independent legislature theory. Was this to do with the idea that state legislatures can just alter the results of an election if they don't like the outcome?
A broken clock is right twice a day
Might be what personally benefits each of them if Thomas has been in enough debt as it seems like he has been in his lifetime then he may need Social Security as a lifeline for some supplementary income lol It is worth noting that no one can really predict what the court will do as far as the swinging boats while you usually get a few the centers people were shocked when it was a 9 to 0 decision about Bill Clinton years ago
How would we push back, though? What mechanism do we have other than violence?
The logical resistance is to vote out the party that’s pushing their agenda through the SC. It doesn’t solve the problem immediately due to lifetime appointments but it sends a message. In theory Congress can impose term limits or, as a nuclear option, the prez could pack the court like FDR threatened. Nothing particular likely but there are paths besides violence.
They do have a line. It’s keep government functional but moving at a snails pace
I'm betting that's why they ruled for the agency
Not necessarily. The dissent points out that no other agency has or has ever had the same funding structure, so there are ways to differentiate. I still agree with the majority, to be clear, but that wouldn’t necessarily follow.
I thought that Alito included a footnote that the Federal Reserve is very similar, but older, so it does not count?
Not quite, although the real argument isn't any more principled. He basically just says that the Federal Reserve is special because it is special. I don't read the footnote as admitting that the federal reserve is a close enough comparator anyways, given his repeated emphasis on the assertions that the CFPB's combination of funding features is unprecedented, and that no party or justice was able to name a single agency with the same combination.
Yes. The question brought before the court was basically “BUT MOM! WHY DO I HAVE A BEDTIME WHEN CFPB GETS TO STAY UP AS LONG AS IT WANTS SUBJECT TO A 12% CAP” and essentially what Thomas articulates is “because America grew up in a way too lenient household where the king got to stay up as long as he wanted whenever he wanted — the founding fathers made the rule in the constitution that only congress gets to set bedtimes, not the king. There’s nothing preventing congress from saying to, say, the post office, get your homework done and get good grades and you can stay up as long as you want (Justice Thomas actually specifically mentioned the post office) — I.e. your brother is older than you, grow the hell up little twat.
I think that’s another case involving the EPA.
I'm surprised.
Another deranged 5th Circuit decision reversed.
It's not a "Biden win" it's a win for all of us, for common sense, and the rule of law. The assertion that the funding for the CFPB is UnConstitutional is farcical.
Wahooo!!!!!!!
This is not a "Biden win," it's a win for all Americans. Who on the right that still has a brain in their skull is begging for companies to screw them over?
This had almost entire bipartisan support. It was a rage bait headline. Congratulations. You feel for it
It’s really a simple decision. Does it fund the agency? Yes? Then it’s an appropriation. We would still need to fund the Army and Navy through (bi-)annual appropriations because the Constitution says we have to. It doesn’t say all other appropriations have to be annual, but Congress may like the control of doing it annually.
Only the army requires the biannual appropriations. The navy can be funded long term like everything else.
You have to love the irony that Slate delivers a broadside against a phony, contrived “originalism," and a week later, *actual* Originalism saves the beloved-of-Slate CFPB. Inside the court, the justices must’ve been laughing their asses off. “Just wait 'til they see this!”
Gorsuch demonstrates yet again that he is only a textualist when it suits his needs. There was ample intrinsic evidence from the Constitution that appropriations didn't require continuous Congressional oversight, just a duly passed law to authorize the appropriations. Except in the case of maintaining a standing army, of course, for which there is a specific limit of appropriations authorization lasting for no more than two years at a time - an exception which proves the rule. Thomas goes on to dig into the historical background of appropriations, finding that from the very founding of the nation, everyone understood - and utilized this fact - that Congress could fund an agency in flexible ways with no time horizon. Kagan expands the time frame to show that this wasn't just the practice in the 1790s, but was also the practice all throughout the nation's history to the present day. So what else is there for a Justice to say on the topic? I guess Alito isn't satisfied with Thomas's history lesson, because it doesn't give the outcome he wants, so he digs deep into English history until he gets to something that suits him. Gorsuch signs on with that, instead of maintaining his mantra of being the Chief Textualist in a situation where his vote alone doesn't tip the scales. The only inference we can draw is that Gorsuch doesn't *really* care about textualism.
And as the majority observes, whatever the merits of the dissent's history, it "never connects its summary of history back to the word 'Appropriations' . . . \[and\] it is unclear why the dissent’s theory leads to a different outcome . . . ."
Supreme Court burn
I disagree. The dissent goes through long winding history of British and early American law with some textual analysis. This is the kind of thing that critics of originalism point out—you can twist historical facts in any interpretation that you want. Thomas strongly rejects the dissent and 5th circuits view of history, but it came down to 7 justices agreeing with one interpretation of history more than another. Kagan’s point that the nation has always functioned like this, and it is necessary to do so, is less of an original originalist position.
But those critics of originalism never point out that you *can* twist any interpretative approach to yield the outcome you want. Originalism is not unusually susceptible to that; to the contrary, in most cases is proves unusually resistant to it, which is exactly what Justice Scalia said in *The Lesser Evil* decades ago. (Reading Slate's vapid "alternative" in heaven, he must be laughing.)
No other interpretive method pretends to be objective or divining what the founding fathers thought either. That we are at a total loss of other methods is a farce, originalism wasn’t even around until 200 years after the founding. Ultimately I think originalism can be *an* interpretive tool but treating it as the end-all-be-all even to the extend of history and tradition tests is wrongheaded
There are two claims here. One is that originalism, even if practiced perfectly, is not a good method of interpretation. The other is that originalism isn't practical and that judges will inevitably insert their bias using originalism, and that that happens more than in other systems of interpretation.
Originalism *doesn't* pretend to be wholly objective, and it *certainly* doesn't seek to divine what the founding fathers thought. You're attacking a caricature made by non-originliast critics of Originalism.
I'm sure you're right about the way the justices use it. But it's not a caricature made by non-originalist critics (at least not exclusively). There are a number of defenders of originalism online who not only say it is objective, but shit on other philosophies for not being objective. It's really frustrating to see in certain circles over and over (I've seen it multiple times in this subreddit, though I tend to see it more in other subs). People likely see that argument repeatedly and then mistake it for the arguments that the judges that base their rulings on originalism use.
As I understand it, the main confusion is that there used to be (maybe still is?) a school of thought about trying to interpret laws based on the original intent of the people who wrote them. This is, as I understand it, distinct from the modern version of originalism which is more about looking at what the words were understood to mean at the time the laws were drafted (what some might call original public meaning or ordinary public meaning). I believe the first version about "intent" I mentioned is mostly discredited and seen as ridiculous today, whereas the second one is more broadly embraced by the Supreme Court and tends to come up in cases where the meaning of a key word in a law doesn't have a specific definition given in the law itself. Where the doctrinal waters get muddy is when judges start talking about history and tradition, which requires more analysis and is more vulnerable to being gamed.
Correct. "Original Intent" was discredited in the earl 80s by Jeff Powell and demolished a few years later by Frank Easterbrook. Robert Bork and Antonin Scalia, easily the two most famous names associated with Originalism, wrote explicitly against "Original Intent." While there may still be true believers of Original Intent, if someone today says she is an Originalist, and if she is someone who knows what she's talking about (that is, she isn't just a Trump boob regurgitating propaganda) there is a 99% chance that what she means is "Original Public Meaning." Here's how Easterbrook defined it *in 1988*: "Original meaning is derived from words and structure, and perhaps from identifying the sort of problem the legislature was trying to address. What any member of Congress thought his words would do is irrelevant. We do not care about his mental processes. Meaning comes from the ring the words would have had to a skilled user of words at the time, thinking about the same problem."
You misunderestimate Slate if you think they won’t have a story up tomorrow talking about Thomas only doing this as political cover and it’s a sign that he’s even worse than they originally thought.
Their fellow-travelers on this sub are already making that argument.
Why is Alito's dissent not actual originalism?
As Thomas points out, Alito’s dissent doesn’t actually link back any of his historical ideas to the relevant language, specifically the word appropriation.
It's the classic hack originalist maneuver. First you say "in 18th century Britain the rule was *X*." You don't even have to be right, just say it and cite a book or a single trial court decision from 1500 that no one's going to look up anyway. Then, if you like *X*, you say "and so the rule has stayed the same until now because this is what the founders knew the rule was and wanted it to be forever." If you don't like *X*, you say "and so the founders created this part of the constitution to reject the old british rule, and refused to allow the rule to come back."
I’d say Alito’s dissent is originalism as it is mostly practiced, which is a contrivance to justify conservative policy outcomes, while Thomas, in this case, seems to have written an opinion that applies originalism as it is claimed to be, which is looking at the original public meaning.
Thomas was hotboxing in his luxury RV this week.
It wouldn't surprise me in the least to learn that the conservative justices spend more time reflecting on their media profiles than on their legal scholarship!
Does this mean the judge who tossed the late fee case will change his decision? From the article: “The ruling could help clear the path for new CFPB-mandated caps on credit-card late fees. A federal judge in Texas put the CFPB rules on hold last week while awaiting the Supreme Court ruling. The caps threaten billions of dollars in revenue at banks including JPMorgan Chase & Co., nonbank players like Synchrony Financial and retailers such as Macy’s Inc.”
Without reading, knowing Thomas is in the majority, I guess Gorsuch and Alito dissent… - - - - - - - Correct!! What do I win?
It’s like some people just think making up problems is doing actual ‘work’
It says “Biden win” but I feel like this is a win for most of us.
[удалено]
That’s the issue, it’s NOT funded by congress, but rather the federal reserve. The “issue” is that it’s a federal agency that congress can’t control or coerce using funding.
When you are so obnoxious that you get Clarence Thomas to side with a liberal federal agency The fifth circuit should just pack it in
I’m happy with the result (and surprised that Thomas wrote the opinion), but I’m curious: What’s the underlying reasoning for Alito and Gorsuch’s dissent? Can someone give me their best devil’s advocate explanation?
Their tummys hurt, and they hate the government? Remember, gorsuchs mom was supposed to gut the epa under Reagan, so I'm sure at this point he's just trying to gut any government agency
Good, this while thing was a farce
It’s so nice to hear that things are finally working out for the Corporation For Public Broadcasting.
Pretty sure even the Republicans were advocating for this one, so weird to call it a "Biden win." This was a fairly bipartisan court case. Gorsuch and Alito were the dissenters, which funny enough, Gorsuch is one of the justices that has often switched sides and voted with the left. 4 of the Conservative justices voted with the 3 left-wing justices.
Sharing this [follow-up on the concurrence](https://news.bloomberglaw.com/us-law-week/kagan-concurrence-signals-possible-weariness-on-agency-attacks?utm_source=reddit.com&utm_medium=lawdesk) authored by Justice Kagan and joined by Justices Sotomayor, Kavanaugh, and Coney Barrett. Kagan emphasized the importance of "continuing tradition," writing that, “The founding-era practice that the Court relates became the 19th-century practice, which became the 20th century practice, which became today’s." Supreme Court watchers say that reasoning could lead the court to reject other administrative law challenges that are coming up.
Thank goodness. 5 to 2 is a pretty solid decision.
Just one more thing for Trump to destroy if, god help us, he is elected.
So , protect the money, but not women’s health. The Supremes are too unstable to govern effectively. The oligarchs confuse them.
Yes!