Patterico's Pontifications

one district court judge, running counter to existing law, does not new law make.

assistant devil's advocate (50cffa) — 8/12/2006 @ 10:22 am

One allegation of contrary existing law, without a link to the allegedly existing law, does not counter to existing law make.

Xrlq (a0a088) — 8/12/2006 @ 11:09 am

“assistant devil’s advocate,” your post-modern ironic brain (and your aliases) may be shocked to learn this, but judges—whether one, nine, or 25 of them—do not ‘MAKE’ laws, thus your statement amounts to counting the number of martyred jihadists on the head of a pin.

Making laws is the role of the legislative branch.

The role of the judiciary is to interpret laws.

Desert Rat (d8da01) — 8/12/2006 @ 11:21 am

Making laws is the role of the legislative branch.

The role of the judiciary is to interpret laws.

Someone should have told that to Harry Blackmun.

Paul (b182b9) — 8/12/2006 @ 11:53 am

Making laws is the role of the legislative branch.

and “it is emphatically the province and duty of the judicial department to say what the law is.”

actus (6234ee) — 8/12/2006 @ 12:17 pm

“it is emphatically the province and duty of the judicial department to say what the law is.”

Really? That sounds as if the judiciary trumps the legislative branch of government. And all this time I thought we had three co-equal branches of government. Your mileage may vary.

moneyrunner (0f8378) — 8/12/2006 @ 1:43 pm

one district court judge, running counter to existing law, does not new law make.

Comment by assistant devil’s advocate

Um, care to name said “existing law” for the class?

The Ace (8d7f7b) — 8/12/2006 @ 4:33 pm

and “it is emphatically the province and duty of the judicial department to say what the law is.”

Comment by actus

False.

The Ace (8d7f7b) — 8/12/2006 @ 4:34 pm

False.

Far be it from me to contradict johnn marshall.

actus (6234ee) — 8/12/2006 @ 6:18 pm

Far be it from me to contradict johnn marshall

Yes, a “judge said so” is just so persuasive…

The Ace (8d7f7b) — 8/12/2006 @ 6:53 pm

Hell, even John Marshall could be wrong.

sharon (63d8f8) — 8/12/2006 @ 8:46 pm

Ace, never mind “actus”— he’s just trying to play another one of his juvenile games again.
“actus” is just trying to show that he can quote John Marshall, albeit completely out of context.

The quote which “actus” used WITHOUT proper attribution, is a quote by John Marshall from the Marbury vs. Madisun decision(1803); “…it is emphatically the province and duty of the judicial department to say what the law is.”

Essentially, the decision asserted the Supreme Court’s domain in ruling on whether or not a law was in accordance with the Constitution.

Naturally, this means that the Judiciary is to INTERPRET laws, rather than “make” laws, as “actus” wishes to imply.

If one wants to be very explicit about the context of the Marshall quote, I’ll provide the sentences from the Marbury vs. Madisun decision which directly follow the quote which “actus” provided:

“Those [judges] who apply the rule [of law] to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [e.g., a statute or treaty] be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

Desert Rat (d8da01) — 8/12/2006 @ 9:25 pm

Naturally, this means that the Judiciary is to INTERPRET laws, rather than “make” laws, as “actus” wishes to imply.

They just make sure its constiutional. I don’t imply much more.

Yes, a “judge said so” is just so persuasive…

Are you being clever or do you not know who i’m talking about?

Hell, even John Marshall could be wrong.

Some people think we can ignore the past 200 years. That those people think of themselves as ‘conservative’ is rather funny.

actus (6234ee) — 8/13/2006 @ 4:34 am

Are you being clever or do you not know who i’m talking about?

Um, I graduated law school when you were about 15.

Save the smugness for someone else, asshole.

The Ace (8d7f7b) — 8/13/2006 @ 5:41 am

They just make sure its constiutional. I don’t imply much more.

Really?

This “judicial department to say what the law is”
isn’t implying much more?

You are embarrassingly obtuse.

The Ace (8d7f7b) — 8/13/2006 @ 5:50 am

This “judicial department to say what the law is”
isn’t implying much more?

Not really, specially when I connected it to your quote with an ‘and.’ If I’m implying anything, its the long tradition of judicial review we have in this country.

actus (6234ee) — 8/13/2006 @ 5:54 am

Some people think we can ignore the past 200 years. That those people think of themselves as ‘conservative’ is rather funny.

I don’t know anyone who thinks every idea that’s been around for 200 years must be right. Nearly all oppose slavery, for example, even though that had been around a lot longer than 200 years when we finally got around to abolishing it. So by Acthole-logic, I guess the fact that anyone calls himself a conservative must be a real knee-slapper.

Xrlq (1a2fae) — 8/13/2006 @ 5:58 am

“Some people think we can ignore the past 200 years. That those people think of themselves as ‘conservative’ is rather funny.”

Why stop there? Let’s go farther back in the law when married women didn’t have separate rights from their husbands? Or, as Xrlq pointed out, how about slavery? We could come much farther forward into the legal abominations like Roe v. Wade and campaign finance reform, both of which were laughable twists on judicial review. So, save your laughter for the “living Constitution” nuts or those Supreme Court justices who think international law should determine what is Constitutional and what is not.

sharon (63d8f8) — 8/13/2006 @ 6:56 am

So by Acthole-logic, I guess the fact that anyone calls himself a conservative must be a real knee-slapper.

Well, its the fact that its worked, and been used for 200 years. But I don’t know what sort of logic lesson I can take from someone who takes a point of judicial review and thinks its the same when applied to slavery.

actus (6234ee) — 8/13/2006 @ 7:11 am

Patterico — please put the commenter’s name at the beginning of the comment instead of at the end. I want to skip all comments by “actus”.

dchamil (e4a1cd) — 8/13/2006 @ 7:37 am

Well, its the fact that its worked

Um, slavery worked too.

But I don’t know what sort of logic lesson I can take from someone who takes a point of judicial review and thinks its the same when applied to slavery.

Obtuse.

Man, are you dense.

The Ace (8d7f7b) — 8/13/2006 @ 8:03 am

If I’m implying anything, its the long tradition of judicial review we have in this country.

Way to go captain obvious/strawman.

Your comments are absolutely meaningless.

The Ace (8d7f7b) — 8/13/2006 @ 8:08 am

Um, slavery worked too.

Um, I’m not so sure. I mean, we are still in many ways paying the price of it today.

Man, are you dense.

Sorry if I don’t think conserving things that are stable, good and work is the same thing as keeping slavery. Maybe i’m not from the right part of the country.

actus (6234ee) — 8/13/2006 @ 9:45 am

Sorry if I don’t think conserving things that are stable, good and work is the same thing as keeping slavery

“stable” —according to you

“good” —according to you

“work” —-according to you.

See a pattern there?

Further, the “200 years” point is irrelevant.
If you can’t see why, you are dense.

The Ace (8d7f7b) — 8/13/2006 @ 10:21 am

See a pattern there?

Sure. Most of the things I say are according to me. Except for the things I quote, which happen to be according to John Marshall and also referred to by about 200 years of our jurisprudence.

Further, the “200 years” point is irrelevant.
If you can’t see why, you are dense.

There’s lots of ways it’s relevant. To me it’s relevant that it has worked this long. That so many people have accepted its logic, its correctness, and worked with it. Experience counts for something in my world. I would think thats the essence of conservatism — keeping what works, and avoiding radical changes.

actus (6234ee) — 8/13/2006 @ 10:26 am

“actus,” we always believed your personal commentary to be immature, silly, devoid of reason, and filled with resentment toward our nation’s traditional institutions.

However, now that you’ve been caught trying to explicitly take out of context a quote from John Marshall from the Marbury vs. Madison decision without proper attribution, you reveal yourself to be fundamentally dishonest, and incapable of taking responsibility for your own posts.

As with most people who lie, cheat, or steal, you didn’t believe you would get caught.

Desert Rat (d8da01) — 8/13/2006 @ 11:16 am

But I don’t know what sort of logic lesson I can take from someone who takes a point of judicial review and thinks its the same when applied to slavery.

If you’re really that dense, I’m not sure what kind of logic lesson you can take from anybody.

Xrlq (9aea6d) — 8/13/2006 @ 11:16 am

Rat, I’m sorry that I didn’t provide proper bluebooking in a comment on a blog. I’m sorry that some people think that marshall’s words means the judiciary makes laws. Maybe you didn’t find the attribution proper, but the point was to pick the famous phrase and put it in quotes and readers would be able to figure it out. You may think i’ve been ‘caught’ doing exactly what I set out to do, but perhaps its because you’re not so familiar with Marbury v. Madison.

If you’re really that dense, I’m not sure what kind of logic lesson you can take from anybody.

Certainly. I mean, from judicial review to slavery. Who can escape such powerful logic? I wouldn’t think that you could simplify these two things to the point of comparing them across one dimension with formal logic, but you’ve done it. And I really can’t learn much from it.

actus (6234ee) — 8/13/2006 @ 11:30 am

To get back to Mr. Justice Marshall: Didn’t someone say …now that Mr. Marshall has made his ruling, let him enforce it…?

It does take three branches, working together; without invective helps, too.

Another Drew (a28ef4) — 8/13/2006 @ 11:41 am

actus – even I, as a mere humble innocent resident alien in this country, am aware that judicial review did not get rid of slavery in this country … as I recall, that was achieved by the 13th Amendment ( qv here ) …

As far as I understand the system over here where I now am resident, a Constitutional Amendment is Legislature and citizenry grabbing a situation by the sensitive parts and fixing it … can one get much further from judicial review ?

A question ot the citizens commenting here, if I may …

Why is it that so many on the left end of the spectrum over here are proud to be mendacious ? Where I spent my first 21 years, mendacity was considered to be poor form, just not the done thing, sorta like scaring the horses which should not be done in public …

Alasdair (48477d) — 8/13/2006 @ 11:50 am

Sure. Most of the things I say are according to me

Well, we know then where you stand on facts.

Except for the things I quote, which happen to be according to John Marshall and also referred to by about 200 years of our jurisprudence.

Again, the years thing as if it means anything.

That so many people have accepted its logic, its correctness, and worked with it. Experience counts for something in my world

What logic?
You pasting a sentence fragment and pretending it means something other than it really does?

. I would think thats the essence of conservatism — keeping what works, and avoiding radical changes.

So you were absolutely opposed to the Hamdan decision then, right?

Oh, things that “work” and precedent only count when liberals like them.

I wouldn’t think that you could simplify these two things to the point of comparing them across one dimension with formal logic, but you’ve done it. And I really can’t learn much from it.

It’s not terribly complicated.

Again: dense
Logic, fact, coherence are not your friends.

The Ace (8d7f7b) — 8/13/2006 @ 11:51 am

I’m sorry that some people think that marshall’s words means the judiciary makes laws.

Right, I mean how dare you paste a sentence fragment with no context, explaination, or corresponding words.

It probably isn’t too late, refund.

Please.

The Ace (8d7f7b) — 8/13/2006 @ 11:53 am

Certainly. I mean, from judicial review to slavery. Who can escape such powerful logic?

Good God, you really are that stupid, aren’t you? This time, I’ll try typing real slow. You said it was “funny” that anyone could oppose any 200 year old practice and still call himself a conservative. I pointed out an obvious example of a practice much older than that, which is universally condemned by liberals and conservatives alike. The end.

Xrlq (9aea6d) — 8/13/2006 @ 12:40 pm

Didn’t someone say …now that Mr. Marshall has made his ruling, let him enforce it…?

Thats a good precedent to cite: extermination of indians. I think that makes the case for, rather than against, judicial review.

Again, the years thing as if it means anything.

Ya, I mean, sorry If I think that 200 years worth of jurispredence agreeing with and building on an opinion counts for something.

What logic?

The logic in marbury v. madison. Have you read it? its quite brilliant in how it hands marshall’s opponents a victory in the instant case but yet emphasis that the Court has the power Jefferson would deny it.

So you were absolutely opposed to the Hamdan decision then, right?

Well, I’m not conservative. I liked Hamdan because it was basically democracy forcing: it was, like Kelo, the court giving power to the lawmaking representative branch: legislatures.

It’s not terribly complicated.

I know. That’s what I was getting at when I thought it was so simplified. Its so oversimplified as to say nothing.

actus (6234ee) — 8/13/2006 @ 12:52 pm

I pointed out an obvious example of a practice much older than that, which is universally condemned by liberals and conservatives alike. The end.

I understand. My point is that the history of judicial review is different than that of slavery. So those are quite different 200 years, such that it makes a difference to someone who is ‘conservative.’

actus (6234ee) — 8/13/2006 @ 12:54 pm

I liked Hamdan because it was basically democracy forcing

So say you, not too bright person.

What about the over 200 years of judicial practice it overturned?

cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases

Hypocrite much?

The Ace (8d7f7b) — 8/13/2006 @ 12:57 pm

it hands marshall’s opponents a victory in the instant case but yet emphasis that the Court has the power Jefferson would deny it.

The founders are for it, you’re against it.

Lovely.

The Ace (8d7f7b) — 8/13/2006 @ 12:58 pm

What about the over 200 years of judicial practice it overturned?

I hadn’t read it that way, tell me more about it.

The founders are for it, you’re against it.

Well, one founder was against strong judicial review: Jefferson. He would have had us live with lots of majority power but little protections in terms of ‘rights.’ But there were other opinions back then, from other founders. People such as marshall, who was one of the first chief justices and helped make the judicial branch what it is today. You know this right?

actus (6234ee) — 8/13/2006 @ 1:01 pm

I hadn’t read it that way, tell me more about it.

Er, I spelled it out for you.

People such as marshall, who was one of the first chief justices and helped make the judicial branch what it is today. You know this right?

Um, I’ve forgotten more about the law then you’ll probably ever know.

Further, holding the judiciary as currently constituted in high regard confirms the comment above.

He would have had us live with lots of majority power but little protections in terms of ‘rights.’

Hilarious lie.

strong judicial review

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

-Justice Jackson

The Ace (8d7f7b) — 8/13/2006 @ 1:07 pm

I hadn’t read it that way, tell me more about it.

Never
Before
In the history of Anglo-American Law
Had
The
Court
Acted
In
The
Manner
It
Did

Can you grasp that?

In other words, for over 200 years something “worked” but you oppose that.

Funny, huh?

The Ace (8d7f7b) — 8/13/2006 @ 1:10 pm

Hilarious lie.

About jefferson? You’re kidding me right? Maybe you’re confusing him with his opponent, Madison, but Jefferson was all about — or claimed to be — Majoritarianism — the minority was to conform to this. And it wasn’t the courts that would step in to protect minorities. He thought for some reason the majority would. Or the government just wouldn’t infringe on too many rights, because he wanted it to be small.

Can you grasp that?

Well its kind of conclusory. What specifically about it is new? It moved some of the decision making to congress, and away from the president. Ie, the decisionmaking is still in the political branches. So your Jackson quote — which I’m guessing you got from the Thomas dissent, but I’m not sure how much you know about Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp. — is still doing allright.

actus (6234ee) — 8/13/2006 @ 1:26 pm

What specifically about it is new?

You mean other than the fact it had never happened before right?

Wow.

The Ace (8d7f7b) — 8/13/2006 @ 2:06 pm

“Ya,(sic) I mean, sorry If I think that 200 years worth of jurispredence (sic) agreeing with and building on an opinion counts for something.”

Sounds like you must like Justice Scalia a lot then if you aren’t for the overarching leaps in logic the liberal end of the bench endorses.

sharon (63d8f8) — 8/13/2006 @ 2:07 pm

It moved some of the decision making to congress, and away from the president

By ignoring jurisdiction-stripping?

Are you for real?

The Ace (8d7f7b) — 8/13/2006 @ 2:07 pm

Well, folks, it does appear “actus” bit off a little more than he could chew, eh ?

Nothing like catching a dishonest blogger like “actus” red-handed, as he intentionally attempts to take out of context, the words of a man who has been dead since 1835.

After all, a little embarrassment for “actus” will be a good ‘life-lesson’ for him.

Anhow, “actus,” you now see why “The Ace” is a nationally regarded blogger.

This is kind of like when a pick-pocket believes he’s got an easy prey when he’s robbing a little old man walking down the street, and it turns out that the little old man is indeed a cop, working undercover.
Ten seconds later, the pick-pocket finds himself spread-eagle on the ground, thinking to himself, “I think I picked the wrong fight.”

Uh-huh, sure looks like “actus” picked the wrong fight.

Desert Rat (d8da01) — 8/13/2006 @ 3:28 pm

While the discussion about 200 year-old practices and jurisprudence is fascinating… does anyone have anything to say about the linked article?

Darkmage (4de99c) — 8/14/2006 @ 9:07 am

You mean other than the fact it had never happened before right?

This is what I want you to specify. Its a long opinion. What in it had never happened before? When I ask you about whats new about it, you just repeat that it had never happened before. Which is kind of a tautology, and doesn’t explain what is new.

By ignoring jurisdiction-stripping?

What jurisdiction stipping was ignored? For me, the main thing it did was move review towards congress.

Nothing like catching a dishonest blogger like “actus” red-handed, as he intentionally attempts to take out of context, the words of a man who has been dead since 1835.

What do you know of my intent? How can it be catching when I put it into quotes? The whole point I was making was to evoke that opinion. That concept of judicial review, of the necessity of interpretation and what that means for judging.

Anhow, “actus,” you now see why “The Ace” is a nationally regarded blogger.

If its the tautalogical repetition, thats something we can all have.

actus (a3fb4f) — 8/14/2006 @ 2:18 pm

What in it had never happened before?

Hilarious.

Um, IGNORING jurisdiction-stripping, for the 3rd time.

What jurisdiction stipping was ignored? For

Your ignorance is appalling. You mean other than the Detainee Treatment Act, right?

Why are you even commenting on the matter when this is your level of knowledge on the topic?

If its the tautalogical repetition,

I spelled it out for you, jackass.

Further, from the author of:
How can it be catching when I put it into quotes?

You’re way, way too dense to see the irony.

The Ace (8d7f7b) — 8/14/2006 @ 3:37 pm

What jurisdiction stipping was ignored?

Hint:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee.

Again,
that (jurisdiction-stripping provision) being ignored.

Had
Never
Happened
Before
In
The History
of
Anglo-American Law.

Ever.

Can you grasp this, yet, idiot?

The Ace (8d7f7b) — 8/14/2006 @ 3:40 pm

Ace, if you are finished pounding the crap out of actus’s silly arguments, I’d love to get your take on Cass’s post, or a link if you’ve covered this at your blog.

Paul (b182b9) — 8/14/2006 @ 9:53 pm

Your ignorance is appalling. You mean other than the Detainee Treatment Act, right?

I’m asking you to explain how they ignored it.

I spelled it out for you, jackass.

Aren’t you the one asking me to get a refund? Here I am telling you, your answers aren’t very good. Can you explain what part of the opinion ignores the DTA, and what the opinion claims to do with it — say is it interpreting it — and why you think that’s wrong, and why you think its actually ignoring it.

But its a good thing that you’re giving me an unattributed paragraph with things in quotes inside it. What I would like is the actual opinion and the law.

actus (6629c1) — 8/15/2006 @ 5:18 am

Had
Never
Happened
Before
In
The History
of
Anglo-American Law.

Also, according to eugene volokh, the court has previously bypassed jurisdiction stripping measures.

The Supreme Court has only invalidated a Congressional withdrawal of jurisdiction once, in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), which is confusing and hard to interpret.

And the Court had occasion to consider the scope of acceptable jurisdiction-stripping just 8 years ago, in Felker v. Turpin, 518 U.S. 651 (1996), a case about the Antiterrorism and Effective Death Penalty Act where Congress limited the Court’s certiorari jurisdiction in certain habeas corpus cases. But, instead, they avoided the question by interpreting the statute as not really withdrawing jurisdiction.

But since you havent yet showed how they ‘ignored’ here, we cant really compare.

actus (6629c1) — 8/15/2006 @ 5:33 am

Also, according to eugene volokh,

Sorry. That was sasha volokh.

actus (6629c1) — 8/15/2006 @ 6:12 am

But since you havent yet showed how they ‘ignored’ here

High comedy. You mean other than the DTA, right?

The people who said to ignore you were correct.
You are obtuse and have no point.
You’re simply not capable of making one or reading comprehension.

That was sasha volokh.

And:

which is confusing and hard to interpret

You are a total embarrassment.

The Ace (8154cd) — 8/15/2006 @ 6:21 am

I’m asking you to explain how they ignored it.

Um, how can you not understand this?

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee.

The Ace (8154cd) — 8/15/2006 @ 6:27 am

Can you explain what part of the opinion ignores the DTA

THE ENTIRE MAJORITY OPINION IGNORED IT YOU ILLITERATE JACKASS.

Which part of “no court” do you not understand?

and why you think that’s wrong, and why you think its actually ignoring it.

IT IS IGNORING IT by merely assuming jurisdiction of Hamdan’s case, idiot.

This
Isn’t
Complicated
But
You
Can’t
Grasp
It

The Ace (8154cd) — 8/15/2006 @ 6:29 am

High comedy. You mean other than the DTA, right?

No. I mean as in what page of the opinion. Or did they not mention the DTA at all?

You are a total embarrassment.

Wait. Whats the problem? Sasha Volokh found two places. In one, its a case of interpretation of the text avoiding a juridiction stripping issue. In the other, its a difficult case to understand. But dont let that stop you from saying its never happened before.

actus (6629c1) — 8/15/2006 @ 6:29 am

But, instead, they avoided the question by interpreting the statute as not really withdrawing jurisdiction.

What is amusing is you think this is proper “judicial review.”

Ignore the plain language of the Constitution to “interpret” a statute to mean the opposite of what it is supposed to mean and call it “the law.”

and why you think that’s wrong, and why you think its actually ignoring it.

Like this:

By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an “inflexible trump,” ante, at 19, by requiring an express reservation to save pending cases. See, e.g., Bruner, supra, at 115; Kline v. Burke Constr. Co., 260 U. S. 226, 234 (1922); Hallowell, 239 U. S., at 508; Gwin v. United States, 184 U. S. 669, 675 (1902); Gurnee v. Patrick County, 137 U. S. 141, 144 (1890); Sherman v. Grinnell, 123 U. S. 679, 680 (1887); Railroad Co. v. Grant, supra, at 403, Assessors v. Osbornes, 9 Wall. 567, 575 (1870); Ex parte McCardle, 7 Wall., at 514; Ritchie, supra, at 544; Norris v. Crocker, 13 How. 429, 440 (1852); Yeaton v. United States, 5 Cranch 281 (1809) (Marshall, C. J.), discussed in Gwin, supra, at 675; King v. Justices of the Peace of London, 3 Burr. 1456, 1457, 97 Eng. Rep. 924, 925 (K. B. 1764). Cf. National Exchange Bank of Baltimore v. Peters, 144 U. S. 570, 572 (1892).

The Ace (8154cd) — 8/15/2006 @ 6:32 am

No. I mean as in what page of the opinion. Or did they not mention the DTA at all?

Go
Read
It
Yourself
Idiot.

Hint: I’m quoting from the dissent.

The Ace (8154cd) — 8/15/2006 @ 6:33 am

In one, its a case of interpretation of the text avoiding a juridiction stripping issue

Bully for them, trashing the constitution.

No. I mean as in what page of the opinion. Or did they not mention the DTA at all?

Extensively, stupid.

The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees.

The Ace (8154cd) — 8/15/2006 @ 6:35 am

and why you think that’s wrong, and why you think its actually ignoring it.

It is wrong because the Constitution says this:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The Ace (8154cd) — 8/15/2006 @ 6:36 am

What is amusing is you think this is proper “judicial review.”

Well, without reading the statute or opinion, I don’t know if their interpretation was correct. But what gave you the idea it had never happened before?

Go
Read
It
Yourself
Idiot.

Look you’re the one saying the opinion did something and I ask where it did that. Thats it. Its really not that much of an issue to ask for citations. You’re able to quote from the dissent — which is not hte law — but what i’m looking for is the quote from the majority where it does what you think “had never happened before in the history of anglo-american law.” But it looks like it did.

However, briefly looking at the majority opinion it does look like it addresses the DTA. So you’re wrong when you tell me ‘the entire opinion’ ignored it. It didn’t ignore it. Now I’d like you to tell me why you think their treatment of it is ignoring it. Note, this means you read the opinion, not just cite the constitutional provision we both know is at play. Tell me why you think what the court did is wrong by analyzing what the court did, not repeating what we both know the constitution says about jurisdiction.

Though I am going to need citations. Since the one thing you’ve been telling me all along, that the court ignored a law, was a lie. The court did not ignore it. Did you read the opinion?

actus (6629c1) — 8/15/2006 @ 8:20 am

So you’re wrong when you tell me ‘the entire opinion’ ignored it. It didn’t ignore it.

It ignorned it by ruling.

It ignored the jurisdiction stripping (for the 6th time).

Again, not complicated.

The court did not ignore it.

Um, yes it did.

See, twisting & turning a bunch of words together and pretending they didn’t doesn’t make it so.

They ignored the plain language of the Constitution and the statute.

Clearly.

The Ace (8154cd) — 8/15/2006 @ 8:50 am

Tell me why you think what the court did is wrong by analyzing what the court did, not repeating what we both know the constitution says about jurisdiction

The court ignored a jurisdiction stripping statute in violation of the Constitution.

There isn’t much “analyis” needed. The court made itself king and acted extra-constitutionally.

Again, not complicated.

What I love about you ignorants is you can’t even level set the language with you. To you “ignore” means something other than what it normally means.

See, coming up with absurd “logic” and legal reasoning and making it “law” doesn’t in any way mean the plain language of the DTA was ignored.

It was. That is my point.

”Justice Stevens took the plain language of the statute and made legal contortions to get to the result the Court wanted to get to,”

“It was turning statutory interpretation and the interpretation of a record upside down, in my opinion, to get a predetermined result. The majority of the Court wanted to rule on the legal situation in Guantanamo Bay, and no statute was going to get in their way.”

“Read Scalia’s dissent, “I agree with Scalia.”

The Ace (8154cd) — 8/15/2006 @ 8:57 am

Um, yes it did.

Ignore means disregard. They did not disregard. They addressed it, they regarded it. You disagree with how they addressed it, but thats different. Words have meanings that, though fluid, have limits. You mean something other than disregard, than ignore.

So they did not ignore. They treated the DTA. its right there, and you can’t lie about it anymore. Now what you can do is tell me why you think their explanation of why the DTA does not limit their jurisdiction is incorrect. So step through their analysis and tell me the problem with it.

actus (6629c1) — 8/15/2006 @ 9:05 am

Ignore means disregard. They did not disregard

Oh, yes they did.

See, they spent a bunch of time telling you why they disregarded it.

To go back to a previous point, who are you to question Justice Scalia?

The Ace (8154cd) — 8/15/2006 @ 9:59 am

You mean something other than disregard, than ignore.

No I don’t.
They ignorned the DTA.

Now what you can do is tell me why you think their explanation of why the DTA does not limit their jurisdiction is incorrect

Again:
The court ignored a jurisdiction stripping statute in violation of the Constitution.

Again:
This isn’t complicated.

The Ace (8154cd) — 8/15/2006 @ 10:02 am

So step through their analysis and tell me the problem with it.

They didn’t have jurisdiction.
That is the problem.

Further, they either made an error or outright lied in footnote 10:

All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases

The Ace (8154cd) — 8/15/2006 @ 10:24 am

To go back to a previous point, who are you to question Justice Scalia?

Apparently I’m justice stevens. But you tell me why you think its incorrect.

Note that Scalia doesn’t say they ignored the DTA. Rather he says their interpretation of it is “erroneous.”

This isn’t complicated.

It probably isn’t. I just want you to go through their analysis of the DTA and explain where they made their error.

actus (6629c1) — 8/15/2006 @ 10:25 am

See, none of Senator Levin’s statements were made during the debate. All statements were inserted into the record afterward.

That demonstrates how twisted the ‘reasoning’ was in reaching this decision.

The Ace (8154cd) — 8/15/2006 @ 10:26 am

They didn’t have jurisdiction.
That is the problem.

THe problem with this argument is that its the same conclusory reasoning you started with. Maybe its you who needs a refund?

actus (6629c1) — 8/15/2006 @ 10:27 am

Note that Scalia doesn’t say they ignored the DTA

He says they don’t have jurisdiction.

I just want you to go through their analysis of the DTA and explain where they made their error.

In issuing an opinion.
They didn’t have jurisdiction.

The Ace (8154cd) — 8/15/2006 @ 10:27 am

THe problem with this argument is that its the same conclusory reasoning you started with.

There is no “problem” as it is correct.

See, the language of the statue is very clear.
So is the intent.

The Ace (8154cd) — 8/15/2006 @ 10:28 am

Apparently I’m justice stevens

Isn’t it funny how your comments always come full circle and look absurd?

The Ace (8154cd) — 8/15/2006 @ 10:29 am

All statements were inserted into the record afterward.

That demonstrates how twisted the ‘reasoning’ was in reaching this decision.

Does the record show that? Because I know the congressional record is often added to after ‘debates.’

He says they don’t have jurisdiction.

I know. He says that based on an argument interpreting the DTA in a way different than the majority opinion. Which is not an argument of ignoring or disregarding, as you claim. Its an argument of error. I’d like to hear your argument of error. Something other than “An error was made.”

In issuing an opinion.
They didn’t have jurisdiction.

I know. Like a broken record, thats all you say. I’m curious with you steppign through their jurisdiction argument and finding within it the problem. Do you understand the english language enough to understand what I’m asking? Or are you just going to be conclusory (do you know what this word means?) again? I ask you what the problem is with their jurisdiction argument and all you tell me is they didn’t have jurisdiction.

actus (6629c1) — 8/15/2006 @ 10:33 am

Isn’t it funny how your comments always come full circle and look absurd?

Well, when I’m chasing a circle, i’m going to end up going in circles. Here you think that an unexplained argument is unproblematic given your conclusion that it is correct. So there’s not very far we’re goign to get is there? When you disagree with teh conclusions of a “nationally regarded blogger,” you get what you deserve.

actus (6629c1) — 8/15/2006 @ 10:36 am

Does the record show that? Because I know the congressional record is often added to after ‘debates.’

Yes, it does.
They made an error or are lying.

He says that based on an argument interpreting the DTA in a way different than the majority opinion

With a string of precedents that would bowl you over.

I ask you what the problem is with their jurisdiction argument and all you tell me is they didn’t have jurisdiction

My problem is it ignores the Constitution.

My problem is they lied in their opinion.

My problem is they turned the plain language of a statue on it’s head.

My problem is that they ignored a large body of existing case law to make a political statement.

For example this:
The Act is silent about whether paragraph (1) of subsection (e) “shall apply” to claims pending on the date of enactment.

is one of the more disengious things you’ll ever read as:

the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction

and:
no court, justice, or judge shall have jurisdiction to hear or consider

and:
This section shall take effect on the date of the enactment of this Act.

The Ace (8154cd) — 8/15/2006 @ 10:45 am

Well, when I’m chasing a circle, i’m going to end up going in circles

Um, you said this: Far be it from me to contradict johnn marshall.

Which is a silly & meaningless statement.

Of course you will then contradict Justice Scalia.

And not see the irony.

The Ace (8154cd) — 8/15/2006 @ 10:46 am

If this had been a boxing match, the ref would have stepped in and stopped the fight in round one.

The attending medical doctor would have cradled actus’ bloodied face in his hands, then whispered in actus’ ear, “Son, it’s probably not a wise idea to fight someone above your weight class—and by the way, it’s dishonest to take a dead man’s quote out of context.”

Desert Rat (d8da01) — 8/15/2006 @ 11:04 am

By the way I meant “disingenuous.”

This comments section keeps giving me “do you wish to debug” errors when I’m trying to type…grrrr.

The Ace (8154cd) — 8/15/2006 @ 11:17 am

And not see the irony.

Well, Marshall was in the majority opinion, and lots of people have since then cited that. As opposed to people who live for the dissent. This is kind of the idea of the power of precedent — we can treat differently what has worked for majorities for 200 years than what we treat as the non-law of dissent in the last few months. Sorry.

If this had been a boxing match, the ref would have stepped in and stopped the fight in round one.

And back comes the rat to reiterate his misunderstanding. Yes. I was caught using a quote. With quotation marks.

actus (6629c1) — 8/15/2006 @ 1:52 pm

If I can go back to Comment #6, which started all this, I agree with actus (which scares me BTW). Our written Constitution lasted all of fourteen years — from 1789 to 1803. Since Marbury v. Madison we have had a stare decisis constitution just like the British, although I bet their House of Lords has trampled less on the Magna Carta than our Supreme Court has trampled on our Constitution. Now if we were to discuss just what part of Article III gives the Supreme Court authority to command the armed forces of the United States or to conduct wars ….

nk (54c569) — 8/15/2006 @ 2:08 pm

Pardon me. It was Comment #5.

nk (54c569) — 8/15/2006 @ 2:10 pm

If this had been a boxing match, the ref would have stepped in and stopped the fight in round one.Actually, Desert Rat, I think a better sports analogy comes from college football: Georgia Tech vs. Cumberland College.

For you non-football history buffs, the final score was 222-0.

Paul (292530) — 8/15/2006 @ 2:21 pm

actus, while it was juvenile of you to quote Marshall without attribution, that pales in comparison to the way you sought to use Marshall’s one-sentence quote from the Marbury vs. Madison decision in order to make it sound like Marshall was stating something COMPLETELY DIFFERENT than what the decision was communicating.

‘The Ace’ exposed you for being a ‘3 of clubs.’

actus, we would have all moved on had you not tried to whitewash what you did.
Your OJ Simpson like denial of truth is soiling your reputation.

Prior to this, we all believed you were merely wrong about issues.
Now you’ve revealed you’re also dishonest.

Desert Rat (d8da01) — 8/15/2006 @ 3:52 pm

actus, to paraphrase Mark Twain: It is better to let people think you’re an idiot than to post comments and remove all doubt.

Paul (cfe284) — 8/15/2006 @ 6:56 pm

actus, while it was juvenile of you to quote Marshall without attribution, that pales in comparison to the way you sought to use Marshall’s one-sentence quote from the Marbury vs. Madison decision in order to make it sound like Marshall was stating something COMPLETELY DIFFERENT than what the decision was communicating.

What you’re not getting is that to people who know marbury v. madison, like me, the sentence is so evocative that it evokes the proper sense of judicial review. Also that its attribution is obvious — the quotes kind of give away the fact that the words aren’t mine. And its left as a bit of a surprise for those that don’t know where the quote is from to find that its actually from something deeply embedded in our legal system. A deep embedding that Ace seems to not care for.

But i’m very happy you’ve come up with your own meaning for what I’ve said. The only problem is that you can’t really use your meaning to tell me what I think. Only what you think. Since its your, not my, meaning.

Prior to this, we all believed you were merely wrong about issues.
Now you’ve revealed you’re also dishonest.

Look, at least I don’t claim that the court ignores something when they actually discuss it in a way I don’t like.

actus (6629c1) — 8/15/2006 @ 7:16 pm

Oh, come on, Actus. You’re the same guy that said because you personally found some good in the NYT story on the SWIFT program that it was irrelevant what they intended. Your dishonesty is just astonishing.

sharon (63d8f8) — 8/15/2006 @ 9:48 pm

You’re the same guy that said because you personally found some good in the NYT story on the SWIFT program that it was irrelevant what they intended.

Yes. Because I think the good of free publication is that we can all get what we need for ourselves. Not that it means that we can each read our meanings and then assign it to the author. You can make up your own good or bad — but its yours, not the authors.

actus (188931) — 8/16/2006 @ 4:55 am

8/12/2006

Cassandra on the Espionage Act Decision

89 Responses to “Cassandra on the Espionage Act Decision”

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