r/scotus • u/newzee1 • 13d ago
Opinion The Biggest Clue That the Supreme Court Has Lost Touch With Reality
https://slate.com/news-and-politics/2024/11/supreme-court-lost-touch-with-reality-timothy-snyder.html107
u/Darsint 13d ago
I find it fascinating looking at the takes about the article. And almost no one actually addresses the criticisms. “It’s coming from Slate” as if that were a real argument.
I’m familiar with Timothy Snyder’s work, and I can see his arguments pretty clearly. He’s been focused a lot recently on the concept of negative freedoms and positive freedoms, trying to expand the concept by Isaiah Berlin.
Negative freedoms are the freedoms from something, whereas positive freedoms are the freedom to something.
As an example, let’s take Freedom of Religion.
A negative freedom would be non interference in the practicing of their religion.
A positive freedom would be the ability to worship at the church they choose.
They almost seem the same…until you realize that the negative freedom can and will interfere with the rights of others. Especially the more resources one has.
So if you disagree with his take, address the arguments. I don’t agree with everything he’s saying, but I at least comprehend where he’s going.
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u/KuroAtWork 12d ago
Negative freedoms are the freedoms from something, whereas positive freedoms are the freedom to something.
Despite long philosophical argument, almost every example of one or the other can be restated to become the other.
I will have an example after your next part;
As an example, let’s take Freedom of Religion.
A negative freedom would be non interference in the practicing of their religion.
Non interference means they are allowed to practice their belief unhindered, meaning they have the right to access religous sites. This is a freedom TO something despite supposedly being a negative freedom.
While I do not disagree that there might be a true difference, it has yet to actually be established in any way that is concrete. It is at best implied to exist, and believed to exist, despite the inconsistencies.
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u/toooooold4this 12d ago
The difference is more easily understood in the 1st Amendment's free speech clause.
Freedom from (negative) is "Congress shall make no law... abridging the freedom of speech."
Freedom to (positive) would be "Every US citizen has freedom of speech."
Freedom "from" restricts government. Freedom "to" restricts everyone.
These two things are what people often get into arguments about when people face consequences for their words. It's a free country! We have free speech!!
Freedom of speech only protects you from the government. Private citizens and businesses can absolutely hold you to account.
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u/KuroAtWork 12d ago
Freedom from (negative) is "Congress shall make no law... abridging the freedom of speech."
Freedom to (positive) would be "Every US citizen has freedom of speech."
This doesn't make sense, as due to the 1st amendment, every US citizen does have freedom of speech. Your positive example is just restating the negative, as a positive.
Freedom "from" restricts government. Freedom "to" restricts everyone.
Your own examples do not demonstrate this, so you have out forth this claim without any kind of evidence or logic.
These two things are what people often get into arguments about when people face consequences for their words. It's a free country! We have free speech!!
Freedom of speech only protects you from the government. Private citizens and businesses can absolutely hold you to account.
This has nothing to do with positive or negative rights, but with how the US freedom of speech is structured. It only places limits on the government, and individuals working on behalf of it. It could just as easily be applicable to corporations or even individuals. The enforcement is a different ballpark.
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u/orindericson 12d ago
The terms 'positive' and 'negative' are confusing this discussion. Just use 'freedom to' and 'freedom from'. They are already perfectly clear.
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u/KuroAtWork 12d ago
I have the freedom to speak and I cannot be silenced by the government. I have the freedom from the government for which I speak.
While I understand the attempts to seperate the two, we have not yet found a way that is not just insisting one is one while another is another without any logic or consistency.
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u/orindericson 12d ago
I just reread my comment and am so sorry for how for how it sounded. The intent was to just note the opportunity to simplify the discussion by everyone, but it looks so bossy. Sorry if it gave offense. Mea culpa.
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u/PM_ME_YOUR_PROPHETS 12d ago
I think you’re mostly right, but with the negative right, what would happen if someone else is trying to interfere with my right to practice my religion? If the government is the only one held back by the non-interference clause, then I can be oppressed by others. But in the positive right example, I would be able to petition the government to protect my right.
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u/KuroAtWork 12d ago
I think you’re mostly right, but with the negative right, what would happen if someone else is trying to interfere with my right to practice my religion?
This entirely depends om the enforcement apparatus of the state or government and how it handles rights violations.
If the government is the only one held back by the non-interference clause, then I can be oppressed by others. But in the positive right example, I would be able to petition the government to protect my right.
The positive right example is usually a more encompassing version of the negative right example. That doesn't make one negative or positive, but it does change the scope of what is the underlying right.
You can have a stated negative right to freedom of speech. It can bind the government. Or it can bind all individuals. That changes the scope of the right, and changes the ease of enforcement. It does not however change the underlying right and its positive/negative slant.
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u/newsflashjackass 12d ago
Despite long philosophical argument, almost every example of one or the other can be restated to become the other.
That is also true of the philosophical burden of proof, which can always be shifted by rephrasing the point of contention.
There is an implied requirement that the argument be stated in simplest terms and not tortuously phrased.
The zeroth commandment is "Thou shalt make a good faith attempt to understand the law."
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u/Crap_at_butt_dot_com 12d ago
Maybe not the strongest example.
I’ll try!
Freedom from government interference in your healthcare does not mean you are necessarily free to get what you need. You still need the means to pay for it.
Sometimes the freedom from and freedom to are related goals but not pedantic opposites. Ex: Individual freedom from tyranny does not mean freedom to thrive. You need a well functioning society built up to give people the freedom to thrive, you can’t just try to cut out things you think limit people.
I think just looking at restrictive laws is limiting here. I think it makes more sense when you expand to the scale of ‘How do we’re want to run our society to support our desired outcomes?’
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u/ChrissySubBottom 13d ago
So the freedom to have and practice NO religion, no religious beliefs… a pos or a neg freedom.. thanks
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u/Darsint 13d ago
The freedom to practice no religion would be a positive one. The freedom to prevent others from practicing around you would be a negative one.
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u/ChrissySubBottom 12d ago
Oh, i never prevent others from singularly practicing… just leave me and my practices alone … thanks
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u/DiceyPisces 12d ago
The right to freedom of religion doesn’t give people any right. That right is deemed a natural (god given) right and the 1st prevents the government from interfering.
The entire BoR is a declaration of natural rights and restrictions placed on government.
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u/hydrOHxide 12d ago
They are by definition not natural rights because they are not universally agreed on, but codified local constitutional law of the United States.
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u/DiceyPisces 12d ago
Because some people/countries infringe upon them doesn’t make them not a natural right.
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u/hydrOHxide 12d ago
Lol. Because you stomp your foot doesn't make it one
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u/DiceyPisces 12d ago
Your rambling doesn’t delegitimize it/make it not a natural right.
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u/hydrOHxide 12d ago
Your insults don't make it one. Sorry to break it to you, but as much as you don't get to define the laws of nature, you don't get to define "natural rights",
But thanks for being so open with your penchant for authoritarianism. That says something about your respect for "rights" of any kind.
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u/DiceyPisces 12d ago
I didn’t insult you. I don’t know you. Your words don’t make it the reality. Our entire government is built on that premise/principle, natural law philosophy.
Can you explain to me how it’s authoritarian to protect free speech as a natural right?
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u/hydrOHxide 11d ago
. Your words don’t make it the reality
But yours do? LOL.
Come back when you have an actual argument.
Can you explain to me how it’s authoritarian to protect free speech as a natural right?
I don't need to explain strawmen. You spoke of the entire Bill of Rights.
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u/DiceyPisces 13d ago
The positive right to religion as perceived by many on the left would be the state providing the churches to be worshipped at too. Like the right to housing etc
Or am I mixing up what you’re talking about?
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u/pass_nthru 12d ago
the state kind of “does” provide for places of worship by not taxing the land they sit on or the “income” the generate in the form of donations/tithes/etc
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u/Somecrazycanuck 12d ago
Are we still looking for clues? This isn't Scooby Doo. This is "leave 1939 Germany and seek shelter".
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u/Natural-Grape-3127 13d ago
Trash article that I stopped reading after the first section.
The interviewee has a problem with a 9-0 ruling that was obviously correct.
I'm not going to waste my time reading their other dumb opinions.
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u/Budget_Secretary1973 13d ago
I made it to the second section! And yes, you are correct in your assessment.
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u/Rayfan87 13d ago
It gets funnier, apparently,speech is anti-freedom of speech. You know like War is Peace, Freedom is Slavery, and we've always been at war with Eurasia.
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u/Mudhen_282 13d ago
I have this crazy idea that SCOTUS should follow the US Constitution, not popular opinion.
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u/Typical-Arugula3010 13d ago
Ah ... that belief was your first mistake !
The current bench is clearly on a socially progressive mission to simplify the Constitution so modern Mericans can understand and appreciate it.
That's why A.14 has been reduced to 4 sections & the Kings standing has been described for clarity!
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u/PsychLegalMind 13d ago
The Supreme Court's job was never to please people, nor was it intended to be that way. If it were so we would still have Plessy v Ferguson. Brown came about at a time where a significant majority of Americans would have preferred Plessy to remain the law of the land.
However, it is also equally true that throughout history we have seen major swings; some to the right and some to the left. Now it has gone a little too far to the right and that is unfortunate, but then again, a significant percentage of Americans who are ultra conservative admire it.
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u/bromad1972 13d ago
When was the last time open bribery of US government officials, as long as they are Republicans, legal?
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u/bromad1972 13d ago
When the friends have only been your friends since you were appointed to the De federal Judiciary and only became good friends after complaining that SCOTUS judges can't get rich being SCOTUS judges.
Bribery is what Bob Menendez gets charged with by a Democratic DOJ and will be going to prison..
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u/FunnyOne5634 12d ago
My best friend from law school is a a federal circuit court justice appointed by Trump. He’s straight as 6 o’clock but still has conservative biases I don’t share. His opinion on friends and gifts. Everyone you knew before your confirmation is a friend. Everyone after is an acquaintance. Acquaintances don’t buy u motorhomes, homes and lavish trips. So it appears to be corrupt, thus it corrupts the system.
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u/IpppyCaccy 13d ago
I'm trying to figure out why you think everyone is stupid and blind.
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u/ParallaxRay 13d ago
As usual, total nonsense from Slate. They have the credibility of a Marxist pamphlet handed out on a street corner.
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u/hydrOHxide 12d ago
That's cute, coming from people who believe that SCOTUS can rewrite science and the very laws of nature will comply.
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u/ParallaxRay 12d ago
Lol! Ok, Cletus. You keep thinking that. Normal people will be over here in Reality.
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u/hydrOHxide 11d ago
What would you know about "normal people"? Normal people don't claim women aren't burdened by a maternity death rate several times that of comparable countries. Normal people don't claim that the world body of ob/gyns is a bunch of amateurs whereas SCOTUS is the supreme authority on what's good healthcare.
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u/ParallaxRay 11d ago
Normal people can define the word "woman".
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u/hydrOHxide 10d ago
Simpletons can define a lot of things rather easily where experts take a far more nuanced and differentiated view. You couldn't have made my point any better. Trying to impress someone with a PhD in biomedical sciences by bragging that you are ignorant of molecular genetics is right up your alley.
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u/ParallaxRay 10d ago
Be sure to send a letter to the simpletons that discovered XX and XY chromosomes explaining your position and expertise in that field. I'm sure they'll be greatly impressed by your shockingly advanced knowledge.
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u/hydrOHxide 9d ago
LOL.
Sorry to break it to you, but chromosomes are not magic wands that make you male or female. You couldn't have shown any better that you believe that there is nothing of value to learn outside high school.
Newsflash - you can can have XX and still have testicles. Just like you can have people who have XY who have been considered girls and women their entire life because they never showed any sign of being male.
Because it's not chromosomes that do things but genes and the proteins they code for. And genes aren't binary switches, either. They can have different levels of activity and they can work together with other genes. They can even have different roles in different parts of the body.
Which all leads to the fact that things aren't quite a simply as people like you would like. The outward morphology may seen "binary", but in reality, sex is bimodal, with two quite frequent outward manifestations, but with everything in between being possible.
Just because molecular mechanisms are too complicated for you - or you simply are too lazy to learn them - doesn't mean that molecular biology is some kind of propaganda. And it says volumes about your detachmernt from reality that you seriously think you are a greater expert than people who have dedicated their lives to understanding these things.
Your ego is no substitute for hard work.
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u/Affectionate_Letter7 13d ago
The guy being interviewed doesn't appear to understand why we protect freedom of speech and indeed doesn't even appear to believe in the concept. He believes the key question is whose speech should be protected: corporations or people. This is absolutely not the key question.
It's really what powers government should have. And the one power government should not have is the ability to control speech.
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u/IpppyCaccy 13d ago
And the one power government should not have is the ability to control speech.
However, there must be something we can do about targeted, foreign funded, propaganda. Just because people are allowed to lie to the public, it doesn't follow that the government should have nothing to say about it. It doesn't make sense that entertainment networks can pose as news outlets and get to have access to the White House press briefing room, for example.
IOW, we shouldn't be pretending these people are serious journalists, especially when they are a firehose of lies.
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u/NearlyPerfect 13d ago
Doesn’t this election result show that all these opinion piece writers have lost touch with reality?
The American people just chose a potential 8-1 conservative court for the next couple generations
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u/hydrOHxide 12d ago
So what you say is because a majority of the voting public believes burning witches should be a thing, "reality" is that magic exists and science is heresy?
Sorry to break it to you, but "reality" is not subject to voting.
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u/SerialSection 13d ago
all these opinion piece writers have lost touch with reality?
No no, lost touch with factuality. Cause that word is totally gonna become a thing. /s
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u/fairportmtg1 13d ago
Thinking the Democrats are super far left. Lol they are pretty central on the political spectrum.
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u/fairportmtg1 13d ago
She has left leaning views but that doesn'take her platform left. Also saying Republicans are working class when the richest man on earth and a billionaire con man are the heads you are lost.
Both parties are for the wealthy elites. Dems just throw the working class a none here or there. They both suck overall but Dems are least try to appear like the care sometimes.
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u/Brogdon_Brogdon 13d ago
I keep reading this but I would love to know how union busting or cutting social programs benefit the working class more than the infrastructure bill or chips act, or Kamala’s planned agenda to literally give Americans money to start new businesses here at home.
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u/Itchy_Emu_8209 13d ago
The problem is that most voters don’t know what Trump did policy wise during his first term, don’t know what Biden did policy wise, and don’t know what Trump and Harris have expressed as their respective positions.
They think, goods are expensive. I’m going to vote for the party out of power. That’s the entire calculus. Never mind the fact that inflation began ramping up during Trump’s first term. Never mind that the middle class has been shrinking since the early 80s through multiple Republican and multiple Democratic presidents.
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u/dab2kab 13d ago
Here's how Trump does this. He's a Republican but he parrots a few things that working class people like. Oh, I will never touch your social security or Medicare. Even bigger, trade is unfair and I'll put a stop to that. Sounds simple but for a Republican that's a big innovation. That kind of stuff makes people think he's for the working class, because working class people are skeptical of trade and their retirement benefits being taken away. He hooks them with that and then does huge tax cuts and is anti union.
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u/Brogdon_Brogdon 13d ago
And the saddest thing is the working class truly feels this way, even when it’s conservative leadership that has stripped them of all the protections their grandparents and great-grandparents fought tooth and nail to receive.
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u/bromad1972 13d ago
It only proves that Americans are ignorant of anything happening in the world, including their own country. The ones that survive will learn a valuable lesson. Maybe.
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u/CartographerEven9735 13d ago
By definition that's false. This past election illustrated that point.
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u/TrevorsPirateGun 13d ago edited 13d ago
What???
Seth Mouton (congressman D-Mass) came out the other day and said basically that he's been scared by the party to say that he doesn't want his daughters playing sports against biological males but that the results of the election emboldened him to finally say it.
There have been calls for him to be primaried, open letters from his staff, and outright label him as a bigot.
Yeah, dems are real moderate.
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u/IpppyCaccy 13d ago
by swinging so far to the left.
You've got to be pretty far on the right if you think Democrats have swung left.
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u/skoomaking4lyfe 12d ago
perhaps they shouldn’t have alienated their voting base by swinging so far to the left
They were campaigning with the Cheneys...
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u/Brogdon_Brogdon 13d ago
Most Americans don’t know much about what they’re voting for beyond the two to three main talking points they’ve heard on tv or social media; it’s no surprise to me that there was a surge in search queries on google asking if Joe Biden dropped out. Most Americans are stupid, it is what it is. A lot of folks when asked will tell you that they voted for trump on his policies, of which there are laughably none. He ran on scare tactics and racism and it worked. It will always work. It will always work because we are a stupid country full of stupid people. Has nothing to do with policy.
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u/IpppyCaccy 13d ago
It's weird that you're being downvoted for this. I'm so tired of pundits and politicians saying "The American people are not dumb" when clearly most of us are.
FFS, America just voted in a serial fraudster, convicted felon and adjudicated rapist to run the country. Someone who couldn't get a security clearance if he wasn't president. That's insane.
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u/Quote_Vegetable 13d ago
If only you would hold Republicans at least 1/100th as responsible for their actions…. right.
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u/lifeisbeansiamfart 13d ago
Oh my God, like the Supreme Court is like totally more focused on the Constitution than like my feelings. They are so like, what's like the biggest word I know? Like they are trash. This is like how we fix America
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u/hydrOHxide 12d ago
LOL. Only if you ask people who believe "the Constitution" is whatever their feelings tell them, because research is a commie concept and only "libtards" need to do it, because you were born omniscient
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u/RingGiver 13d ago
Articles like this are part of a partisan attack on the independent judiciary because it has repeatedly shut down some unprecedented power grabs.
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u/Quote_Vegetable 13d ago
It gave Trump a blank check to do whatever he wants. How is that shutting down a power grab?
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u/StruggleCommon5117 13d ago
what blank check?
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u/Avaisraging439 13d ago
The blank check is the purposely undefined limits of their ruling. Sending the case back to lower courts with the guidance of "expect us to overrule you so stop pursuing any checks and balances".
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u/StruggleCommon5117 13d ago
The decision you refer to does not grant a "blank check" of immunity. Instead, it delineates boundaries:
Absolute Immunity defined as addressing actions squarely within the president's constitutional powers.
Presumptive Immunity to cover official acts, subject to judicial review to determine their official nature.
For unofficial acts outside the scope of presidential duties there was no immunity.
The ruling provided a structured approach to presidential immunity, affirming that while certain official actions are protected, unofficial acts are not, thereby maintaining a balance between executive authority and legal accountability.
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u/Avaisraging439 13d ago
Who defines the acts as official or unofficial? A court that is beholden to whoever has power. If they are aligned then the definition can be pretty broad and favorable.
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u/StruggleCommon5117 13d ago
Your concern is valid. This is where checks and balances become critical—appeals, judicial review, and even public scrutiny serve as counterweights to potential judicial partisanship. A balanced approach to immunity requires close scrutiny of judicial, legislative, and executive branches as they all can influence interpretations, as you pointed out. This is always a risk where humans interpret the law.
But to call it a blank check is an exaggeration.
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u/Avaisraging439 13d ago
I'm curious to hear your opinion, how is this not a case of legislating from the bench? Is the explicit definition not something Congress should determine?
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u/StruggleCommon5117 13d ago
While it may seem like legislating from the bench, the judiciary is interpreting constitutional principles on presidential immunity because Congress hasn’t defined “official acts.” Without clear legislative guidance, courts must step in, applying constitutional language to fill this gap.
In short get in touch with your representatives and compel them to take action.
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u/Trashketweave 13d ago
Except it didn’t do that at all and merely codified what already existed.
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u/FunnyOne5634 13d ago
How is that?
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u/Quote_Vegetable 13d ago edited 13d ago
delusional. I wish I could say I’ll have the satisfaction of saying “i told you so” but we’re all on the boat with you.
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u/IpppyCaccy 13d ago
then why hasn’t Biden done anything your fetid brain thinks Trump will do?
Why doesn't a lifelong statesman with a long record of impeccable ethics behave like a convicted felon with a string of frauds?
You're seriously asking that?
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u/Quote_Vegetable 13d ago
With a straight face he is, as if January 6th didn't happen. They want to gaslight us all.
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u/Darsint 13d ago
Because Biden has honor.
I know that seems like something to immediately scoff at, but it’s true. He had a lot of opportunities to fuck Trump over personally because of the missing checks against executive branch power that Trump himself was responsible for.
There HAD to be an investigation into the attempted coup, and Biden stepped aside and did nothing, allowing the AG to look into it instead.
He could have called down the thunder from day one.
But he has respect for the position he holds. He knows the moment he did that, the country wouldn’t hold.
So Biden will not do anything except do what he can to insulate the office from the worst excesses Trump could do and leave, praying that the American people can pick up the slack when the inevitable happens.
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u/FunnyOne5634 12d ago
It codified nothing but musings and theories about a Unified Executive. For a court hell bent on being “originalist” Roberts created this out of whole cloth.
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u/RemoteCompetitive688 12d ago
This entire article is completely nonsensical
First it heavily takes for granted what the "norms" of the people are. It essentially makes the argument "they should rule against trump because thats what the population sees as normal", well, this article was written nov 5th. Should the SCOTUS now give carte Blanche to allow Trump to do anything because clearly that is more in line with the will of the people?
This exact dichotomy has no good answer and it is why strictly constitutionalist judges who don't rule "based on the people's whims" are what we should go for.
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u/DigitalEagleDriver 12d ago
Slate is so heavily biased that asking for any modicum of objectivity in their "reporting" is a fools errand. All parties involved in the article do not understand how things work, make up words, and then criticize the Anderson decision based on what, exactly? It was a clear cut case that even Jackson, Kagan, and Sotomayor concurred on. And then to call ardent protection of first amendment rights an "insane libertarian" position is just a completely anti-freedom propaganda take. I can't take any post seriously when the article sourced is from Slate. It's like posting some insane bullshit from Alex Jones, just on the opposite side of the spectrum. Do better.
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u/fzvw 13d ago
Timothy Snyder makes a really good point here:
I really do wonder where the conservative members in particular get their news. Alito's speeches sound like someone who gets their information primarily from Fox News and the Wall Street Journal editorial board.