Impartial judges?

Autenrieth RoadAutenrieth Road Shipmate
edited October 2020 in Purgatory
I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)

I know. Color me naive.

Over the past couple of years, I’ve started to doubt both (a) and (b). It makes me see judges’ decisions as deeply political. Not necessarily in a bad way, but at the least as thinking it’s completely baked into the human condition in a perhaps unavoidable way.

Today I read this article: We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question. and I think: only now in question? The nomination process has been massively politicized at least since Merrick Garland’s nomination was blocked, and perhaps/probably since forever (it’s only since Garland that I’ve been paying close attention).

My current hypothesis is that every Supreme Court decision (and those in lower courts) has failed both (a) and (b) since the founding of my country.

What do you think? Are (a) or (b) possible? Desirable? What should we aim for if they’re not possible? How should judges make their decisions? How should judges be chosen?

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Comments

  • The legitimacy of the SCOTUS has been in question since Bush v Gore. Indeed, the question was settled. It's illegitimate. The question is whether it will ever be legitimate again.
  • edited October 2020
    I didn't know the names of any of the judges on the Canadian supreme court. I know of one name of one retired judge. None other. Nor do I know the names of other countries supreme courts. But I've heard and know the names of several USA supreme court judges. Mostly because they are perverts or hold extremist views. Which points to celebrity and politicization. If I understand it the Republican political party has a majority on the court.
  • Simon ToadSimon Toad Shipmate
    edited October 2020
    These are the last two paragraphs of the article, which put the point they make neatly:
    We’re liberals. But we’re also institutionalists. We don’t urge postponing Judge Barrett’s confirmation because of her qualifications or originalist philosophy, and we don’t question the sincerity of her promise to approach each case impartially. Our concerns run deeper — that regardless of how or why Justice Barrett would vote on the momentous issues that would come before her, the court’s decisions won’t be accepted.

    We worry that a large swath of the nation, told a Democrat can’t fill a vacancy in an election year but a Republican can, will dismiss the court as yet another partisan body. And we worry that if our children are asked, years from now, “How is the court doing?” their answer will turn on which politicians last got their hands on it, and not the reasoning behind the court’s judgments.

    I'm going to sit with this a bit. My feeling is that moderate liberals are likely to accept Judge Barrett because they are institutionalists. My concern is that Republicans won't accept an expansion.
  • In previous years it would take 2/3 of the Senate for cloture of debate and 3/5 of the Senate to confirm a justice, That would mean each justice would have to have some people from the minority party to agree to the confirmation. That helped keep SCOTUS more to the center--center right sometimes, center left other times.

    However, in 2005 the Democrats were using the filibuster to hold back some of Bush's nominees. A Gang of 14 Senators (Seven Democrats and Seven Republicans) got us beyond the filibuster. Later the majority party started to use the nuclear option to get its favored justices confirmed.

    As I understand it, Joe wants to set up a commission to try to restore balance to the court. One of the options being considered is ending the lifetime appointment to the court, like limiting the term of a justice to 18 years. A number of the current justices have already served more than 18 years.
  • Gee DGee D Shipmate
    Gramps49 wrote: »
    As I understand it, Joe wants to set up a commission to try to restore balance to the court. One of the options being considered is ending the lifetime appointment to the court, like limiting the term of a justice to 18 years. A number of the current justices have already served more than 18 years.

    For many years now, and speaking only of my State, all judges must retire at 72; they may be appointed as acting judges until age 75. I don't know about other States. Originally, judges of the Federal courts here had a lifetime appointment. That was altered by constitutional amendment in 1977 to introduce an age limit of 70. Given the age at which most judges are appointed, these limits equate roughly to your 18 years.

    Justice McTiernan of the High Court was only 38 when he was appointed; he retired after serving 46 years, a record which is very, very unlikely now to be exceeded. Justice Edelman was only 43 when he was appointed to the High Court, but by then had been a judge of the Federal Court for a bit under 2 years, and of the Supreme Court of Western Australia 4 years before that, after a brief but distinguished academic career. Not many people have that sort of ability. Why do you consider that he should retire after 18 years, and what work could or should he do were he to be compelled to leave the Bench so early?
  • I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)

    I know. Color me naive.

    In my time as a lawyer, which finished in 2000, I mostly dealt with cases involving employment, with some exposure to civil litigation, all in Australia. Most of my time was spent negotiating, with the lawyers all aware of what the law said, and mostly arguing about what the facts were.

    In most situations, cases don't turn on questions of law at all. The law is clear, and its the facts that need to be determined, by the production and weighing of evidence bought before the Court complying with a set of rules. So a Judge's time is mostly concerned with trying to establish the facts. Applying the law is the easy bit.

    Cases that get to the highest court in the land though are usually different. They often involve controversial areas where the law is not clear. That means almost by definition that there is not a single correct answer. Legislation might be difficult to interpret in the fact situation before the Court. New situations might have arisen because of technology changes that the legislature never envisioned. Before the highest court in the land, a party might want to argue that a previously determined case was wrongly decided.

    So (a) above is almost never the case when we are talking about our High Court or your Supreme Court (noting that the two bodies are not at all the same).

    Supreme Court judges are, however much conservatives in the Heritage Foundation might wish it to be so, impartial (I mean that right wing Christian organisation who gives Trump their approved list of judges). Really, impartial isn't the right word. I think you probably mean apolitical, that they don't apply their political views to decisions. Impartiality as between the parties before them is an absolute given. To not be impartial is to commit a grave ethical breach. The correct step in those situations where a Judge cannot be impartial is not to hear the case. A judge who hears a case must also ignore the wishes of the President who nominated them or indeed anybody else when making a decision. A failure to do that is also a serious ethical breach. When Amy Ferrer Fowler (can't resist, sorry) says that she tries not to let her own personal convictions influence her decisions as a Judge, I believe her.

    When I was a lawyer, I so wanted a particular area of employment law concerning damages for breach of contract to develop in a certain way. I looked for fact situations where I could see that was a possibility. I wanted it because I wanted to use a certain mutual duty of employers and employees to be used by employees to get just compensation for unfair treatment. It was a political view of mine that employees should have more power in the employment relationship. For a few years, this was a possibility, but lawyers who represented employers knew it too. So I was able to use that uncertainty to negotiate good settlements for my clients. But I have heard, down the track, that the case law has now effectively put an end to my preferred line of reasoning. Bummer.

    So that's how my politics influenced my practice as a lawyer (note that I knew what lawyers on the other side would do because I also acted for employers). I might push my client a bit harder to go to trial if the facts were good and the other side wasn't coming up with the dosh. But that never happened. The boss always coughed up. Nobody wants to be a test case, unless they are an idiot. Oh to have an idiot client with bags of money to fund an experimental trial!!!!! Oh to make sure you have warned that client over and over again in writing that they are taking a massive risk!

    I imagine its the same for Judges. You have a particular approach to interpreting the law, one that is by no means yours alone but is grounded in the case law and legal theory. But just because Amy Ferrer Fowler thinks that a particular decision in the case will lead to a preferred outcome does not mean that she will make that decision. Her judgement has to hang together. Its like a jigsaw puzzle where the pieces are, I imagine, the Constitution, the facts under consideration, the relevant legislation and relevant previous decisions of the Court. If she can't arrange those pieces to fit together, she can't make her preferred decision.

    The above is how someone like me would make a judicial decision, someone who is an inherently political person and who wants to use the law to advance their agenda. I'm not sure if Barrett fits that mold. I'm not sure if any of your Supreme Court judges do. You would need to be an expert, a close follower of the Court who reads all their decisions to make that call. My wife, for example, is not a 'political' lawyer, although there is less scope for that in her field. She will advocate for law reform, but not through cases. Nobody wants a matter to go to trial in family law.

    In my experience, lawyers who hanker after change, like me, are often the ones who burn out (raises hand) either because they become disillusioned with the potential for change, or the contradiction between their politics or moral code and what they are doing professionally causes them to break down (raises hand). Political lawyers often end up in politics. Its the people who are in love with the law as a process, as a way of thinking, as a discipline, who become judges. This is talking in generalities. Sometimes, people who have been active in politics are appointed to our High Court.

    I don't believe it when people look at the Court and count numbers like they are trying to get something through Congress. Lawyers have to make guesses as to which way a case might go, and those who specialise in appearing before the Supreme Court will know how to frame their positions to appeal to each of the Judges on the bench. But its not counting numbers. Its not about saying that there are three conservatives and four liberals so the conservative position will win.

    When lawyers fight about the law, they fight over what the law is, or where it might be going. They fight these things hard. I have seen a couple of serious long-running rows over interpretation, one in particular resulting in a partner leaving the firm (he ended up hating the other guy's guts). The fight was over which 'line' the firm should take in giving advice in a particular situation.

    But to be impartial in the sense of political outlook is as your post suggests, very difficult. The people who make it and are appointed by Trump have gone through an ideological filter. But their willingness to apply that filter to their decisions as judges is probably limited, and their capacity to do that is limited by process and history. Again, you would have to make a serious study of their decisions to determine if they walk the originalist talk, but they are going to place a premium on the method of making a judicial decision.
  • So, between the lines, do I understand that the American supreme court is merely an extension of the partisan political system. With the noted difference, that they never get voted out of office. And there's only one candidate and they get appointed by the American senate. The fearless leader nominates and the politburo agrees.
  • If you reckon that comes from my post, no. Quite the opposite. The process governs the outcome, not the politics.
  • MarsupialMarsupial Shipmate
    edited October 2020
    Simon Toad wrote: »
    If you reckon that comes from my post, no. Quite the opposite. The process governs the outcome, not the politics.

    I'm not sure how accurate that is as a characterization of the US Supreme Court's constitutional jurisprudence. There have been some surprises, but there are a number of justices whose jurisprudence has fairly predictably reflected the politics of the party that appointed them in a number of high-profile cases.

    I think that's part of the idea behind term limits - essentially, to limit the lifespan of the political effect of partisan appointments to the Court. I'm not sure I would call that a good solution, but it may be less bad than some other solutions that are floating around.

    The Canadian Supreme Court has not been entirely free of predictable political polarizations at various times on various issues, but I think it's fair to say that it's never been as politically polarized as the SCOTUS.
  • Simon Toad wrote: »
    I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)

    I know. Color me naive.

    In my time as a lawyer, which finished in 2000, I mostly dealt with cases involving employment, with some exposure to civil litigation, all in Australia. Most of my time was spent negotiating, with the lawyers all aware of what the law said, and mostly arguing about what the facts were.

    In most situations, cases don't turn on questions of law at all. The law is clear, and its the facts that need to be determined, by the production and weighing of evidence bought before the Court complying with a set of rules. So a Judge's time is mostly concerned with trying to establish the facts. Applying the law is the easy bit.

    Cases that get to the highest court in the land though are usually different. They often involve controversial areas where the law is not clear. That means almost by definition that there is not a single correct answer. Legislation might be difficult to interpret in the fact situation before the Court. New situations might have arisen because of technology changes that the legislature never envisioned. Before the highest court in the land, a party might want to argue that a previously determined case was wrongly decided.

    So (a) above is almost never the case when we are talking about our High Court or your Supreme Court (noting that the two bodies are not at all the same).

    Supreme Court judges are, however much conservatives in the Heritage Foundation might wish it to be so, impartial (I mean that right wing Christian organisation who gives Trump their approved list of judges). Really, impartial isn't the right word. I think you probably mean apolitical, that they don't apply their political views to decisions. Impartiality as between the parties before them is an absolute given. To not be impartial is to commit a grave ethical breach. The correct step in those situations where a Judge cannot be impartial is not to hear the case. A judge who hears a case must also ignore the wishes of the President who nominated them or indeed anybody else when making a decision. A failure to do that is also a serious ethical breach. When Amy Ferrer Fowler (can't resist, sorry) says that she tries not to let her own personal convictions influence her decisions as a Judge, I believe her.

    When I was a lawyer, I so wanted a particular area of employment law concerning damages for breach of contract to develop in a certain way. I looked for fact situations where I could see that was a possibility. I wanted it because I wanted to use a certain mutual duty of employers and employees to be used by employees to get just compensation for unfair treatment. It was a political view of mine that employees should have more power in the employment relationship. For a few years, this was a possibility, but lawyers who represented employers knew it too. So I was able to use that uncertainty to negotiate good settlements for my clients. But I have heard, down the track, that the case law has now effectively put an end to my preferred line of reasoning. Bummer.

    So that's how my politics influenced my practice as a lawyer (note that I knew what lawyers on the other side would do because I also acted for employers). I might push my client a bit harder to go to trial if the facts were good and the other side wasn't coming up with the dosh. But that never happened. The boss always coughed up. Nobody wants to be a test case, unless they are an idiot. Oh to have an idiot client with bags of money to fund an experimental trial!!!!! Oh to make sure you have warned that client over and over again in writing that they are taking a massive risk!

    I imagine its the same for Judges. You have a particular approach to interpreting the law, one that is by no means yours alone but is grounded in the case law and legal theory. But just because Amy Ferrer Fowler thinks that a particular decision in the case will lead to a preferred outcome does not mean that she will make that decision. Her judgement has to hang together. Its like a jigsaw puzzle where the pieces are, I imagine, the Constitution, the facts under consideration, the relevant legislation and relevant previous decisions of the Court. If she can't arrange those pieces to fit together, she can't make her preferred decision.

    The above is how someone like me would make a judicial decision, someone who is an inherently political person and who wants to use the law to advance their agenda. I'm not sure if Barrett fits that mold. I'm not sure if any of your Supreme Court judges do. You would need to be an expert, a close follower of the Court who reads all their decisions to make that call. My wife, for example, is not a 'political' lawyer, although there is less scope for that in her field. She will advocate for law reform, but not through cases. Nobody wants a matter to go to trial in family law.

    In my experience, lawyers who hanker after change, like me, are often the ones who burn out (raises hand) either because they become disillusioned with the potential for change, or the contradiction between their politics or moral code and what they are doing professionally causes them to break down (raises hand). Political lawyers often end up in politics. Its the people who are in love with the law as a process, as a way of thinking, as a discipline, who become judges. This is talking in generalities. Sometimes, people who have been active in politics are appointed to our High Court.

    I don't believe it when people look at the Court and count numbers like they are trying to get something through Congress. Lawyers have to make guesses as to which way a case might go, and those who specialise in appearing before the Supreme Court will know how to frame their positions to appeal to each of the Judges on the bench. But its not counting numbers. Its not about saying that there are three conservatives and four liberals so the conservative position will win.

    When lawyers fight about the law, they fight over what the law is, or where it might be going. They fight these things hard. I have seen a couple of serious long-running rows over interpretation, one in particular resulting in a partner leaving the firm (he ended up hating the other guy's guts). The fight was over which 'line' the firm should take in giving advice in a particular situation.

    But to be impartial in the sense of political outlook is as your post suggests, very difficult. The people who make it and are appointed by Trump have gone through an ideological filter. But their willingness to apply that filter to their decisions as judges is probably limited, and their capacity to do that is limited by process and history. Again, you would have to make a serious study of their decisions to determine if they walk the originalist talk, but they are going to place a premium on the method of making a judicial decision.

    And yet the entire USA body politic seems to think that the politics of Supreme Court Justices matter.
  • I am not American and I might well be wrong to analogise between Australian and American lawyers. Our High Court and the US Supreme Court are different beasts.

    I do accept that both American political parties are in the habit of using Supreme Court appointments to motivate their bases. This has a huge effect upon the narrative around the Court. As the NYT article points out, the partisan actions of the Republicans in particular has had a deleterious effect on the credibility of the Court. That's to be abhorred.

    But the public perception and the politicking by politicians and the American media is completely different to the question of whether the Judges put politics before the integrity of their decisions.
  • Simon Toad wrote: »
    I am not American and I might well be wrong to analogise between Australian and American lawyers. Our High Court and the US Supreme Court are different beasts.

    I do accept that both American political parties are in the habit of using Supreme Court appointments to motivate their bases. This has a huge effect upon the narrative around the Court. As the NYT article points out, the partisan actions of the Republicans in particular has had a deleterious effect on the credibility of the Court. That's to be abhorred.

    But the public perception and the politicking by politicians and the American media is completely different to the question of whether the Judges put politics before the integrity of their decisions.

    For completeness, I'm not American either and so have no more of a ringside seat than @Simon Toad does. But it seems to me that this is a question that is actually testable: my impression from the media is that when the Supreme Court makes a judgement, it's stated which justices agree with it (and if there's a dissenting opinion, who it is that dissents). So someone should be able to go through this information, and see whether there's a pattern - that is, are some justices reliably liberal in how they interpret the law, and others reliably conservative?

    If there is, then I (and what seems to be the whole of the USA) am right. If there isn't, then Simon is.
  • orfeoorfeo Shipmate
    edited October 2020
    As I've said before, possibly here or possibly elsewhere, when it comes to most judges on the Australian High Court I'd have to think for a while before remembering which political party was in government at the time they were appointed.

    Which tells you a lot about the difference between here and the USA. The political lens/angle on judicial appointments, and the focus on specific cases or issues, just isn't present most of the time here. Occasionally a particular judge will be seen to be relatively conservative or relatively liberal, but in recent decades it's been very rare to get any sense that a political party is trying particularly hard to shape the direction of the court. Not least because there is a fair amount of past evidence of such attempts not working very well in this country anyway.

    And it most certainly is not a political issue in the sense of trying to motivate a party's base. Most of the Australian public would be bored witless by a discussion about who is going to be the next High Court judge.
  • orfeoorfeo Shipmate
    As to the original post, I think part of the response is that a case is fairly unlikely to get all the way to the highest court in the land if there is a single correct answer. They only get the hard ones, and in fact spend a lot of their time rejecting cases that don't raise sufficiently tricky/interesting questions to be worth hearing. If lower courts were able to resolve the matter satisfactorily, it's a waste of limited time.
  • @Simon Toad
    "whether the Judges put politics before the integrity of their decisions. "

    My perception is that this is already clear to general understanding. The American supreme court is perceived as politically dominated and the judges not independent of politics. Perception is truth in this era.
  • Simon ToadSimon Toad Shipmate
    edited October 2020
    Fawkes Cat wrote: »
    Simon Toad wrote: »
    I am not American and I might well be wrong to analogise between Australian and American lawyers. Our High Court and the US Supreme Court are different beasts.

    I do accept that both American political parties are in the habit of using Supreme Court appointments to motivate their bases. This has a huge effect upon the narrative around the Court. As the NYT article points out, the partisan actions of the Republicans in particular has had a deleterious effect on the credibility of the Court. That's to be abhorred.

    But the public perception and the politicking by politicians and the American media is completely different to the question of whether the Judges put politics before the integrity of their decisions.

    For completeness, I'm not American either and so have no more of a ringside seat than @Simon Toad does. But it seems to me that this is a question that is actually testable: my impression from the media is that when the Supreme Court makes a judgement, it's stated which justices agree with it (and if there's a dissenting opinion, who it is that dissents). So someone should be able to go through this information, and see whether there's a pattern - that is, are some justices reliably liberal in how they interpret the law, and others reliably conservative?

    If there is, then I (and what seems to be the whole of the USA) am right. If there isn't, then Simon is.

    Oh for sure. I make mention of that in my "essay". But you need a pretty good understanding of the Supreme Court to make that call. Someone like the woman who does the Supreme Court commentary on PBS Newshour would be the ticket.
  • MarsupialMarsupial Shipmate
    edited October 2020
    I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)

    I know. Color me naive.

    Over the past couple of years, I’ve started to doubt both (a) and (b). It makes me see judges’ decisions as deeply political. Not necessarily in a bad way, but at the least as thinking it’s completely baked into the human condition in a perhaps unavoidable way.

    [...]

    What do you think? Are (a) or (b) possible? Desirable? What should we aim for if they’re not possible? How should judges make their decisions? How should judges be chosen?

    As @orfeo and @Simon Toad have said I think generally cases that make their way all the way to the highest court are generally cases where reasonable people can disagree (and, often, where lower appellate courts have disagreed). There are some cases where one position looks much more likely to be correct than the other but there are other cases where the Court is genuinely being asked to break new ground and basically make new law.

    By way of an example: An issue that was controversial in Canada in the 1990s was whether sexual orientation should be a recognized ground of discrimination, and if so, what the implications of that should be. (It wasn't originally listed as a ground when the Charter was enacted in 1982, but the wording of the equality provision makes it clear that the listed grounds are not intended to be exhaustive.) In 1999 the Supreme Court of Canada (SCC) held that the Charter's equality provisions protect not only gay and lesbian people as individuals but also same-sex relationships, and it was only a short step from that to constitutional protection for gay marriage. However, I think it's clear that such a result would have been unthinkable in the early 1970s, before the APA removed homosexuality from the DSM. The Charter's equality provisions provided a framework for recognizing gay rights but it didn't operate in a vacuum.

    How should judges decide these issues? I have no idea how the SCC actually landed where it did on the sexual orientation issue, but these strike me as some relevant considerations: (1) there is a deliberately open-ended equality provision in the Charter and it exists for good reasons; (2) sexual orientation was not among the prohibited grounds of discrimination initially listed in the equality provision of the Charter when it became law in 1982, so adding sexual orientation would breaking new ground and taking something that was previously subject to the democratic process away from that process; (3) we live in a democracy and we believe that issues where reasonable people can disagree should be left as much as possible to the democratic process; but (4) the expert consensus about sexual orientation increasingly describes it in a way that makes it look like precisely the sort of thing that equality provisions in constitutional documents are designed to protect from the vagaries of the democratic process. The more confident the court is about (4), the more likely it's going to weigh consideration (1) above considerations (2) and (3).

    When it comes to choosing judges, I think ideally you want people who will go through the process of weighing these kinds of competing considerations with an open mind. A judge is inevitably going to bring their own views to the task of judging, and they may well influence where the judge lands on a close call, but they shouldn't dictate the result from the outset.

  • I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)

    I know. Color me naive.

    It's a commonplace naïveté. John Roberts leaned heavily (and dishonestly) on this misconception during his confirmation hearings, promising to be a neutral umpire who would simply call "balls and strikes"*. The problem is that any cases which make it through the appeals process to the Supreme Court are, pretty much by definition, not settled matters of black letter law (as others have already pointed out). There are going to be (at least!) two plausible statutory or Constitutional interpretations and will almost certainly have political implications.

    It's understandable that ordinary citizens might not appreciate these facts. It's less understandable that U.S. Senators wouldn't, but it's very understandable why they'd pretend not to.
    If I understand it the Republican political party has a majority on the court.

    Republican-appointed justices have held a majority on the U.S. Supreme Court since June 23, 1969. Lyndon Johnson's failed attempt to elevate Abe Fortas to Chief Justice in 1968 (and Fortas' subsequent resignation) was an unrecognized turning point in American history in many ways.


    * A baseball metaphor, for those reading this from outside the U.S.
  • Dave WDave W Shipmate
    Simon Toad wrote: »
    Fawkes Cat wrote: »
    Simon Toad wrote: »
    I am not American and I might well be wrong to analogise between Australian and American lawyers. Our High Court and the US Supreme Court are different beasts.

    I do accept that both American political parties are in the habit of using Supreme Court appointments to motivate their bases. This has a huge effect upon the narrative around the Court. As the NYT article points out, the partisan actions of the Republicans in particular has had a deleterious effect on the credibility of the Court. That's to be abhorred.

    But the public perception and the politicking by politicians and the American media is completely different to the question of whether the Judges put politics before the integrity of their decisions.

    For completeness, I'm not American either and so have no more of a ringside seat than @Simon Toad does. But it seems to me that this is a question that is actually testable: my impression from the media is that when the Supreme Court makes a judgement, it's stated which justices agree with it (and if there's a dissenting opinion, who it is that dissents). So someone should be able to go through this information, and see whether there's a pattern - that is, are some justices reliably liberal in how they interpret the law, and others reliably conservative?

    If there is, then I (and what seems to be the whole of the USA) am right. If there isn't, then Simon is.

    Oh for sure. I make mention of that in my "essay". But you need a pretty good understanding of the Supreme Court to make that call. Someone like the woman who does the Supreme Court commentary on PBS Newshour would be the ticket.
    Ideological rankings of Supreme Court justices are easy to find, as in this 538 article:
    What The Supreme Court’s Unusually Big Jump To The Right Might Look Like
    I don't see any reason to think that a highly partisan selection process should be expected to magically produce non-partisan justices.
  • @Simon Toad
    "whether the Judges put politics before the integrity of their decisions. "

    My perception is that this is already clear to general understanding. The American supreme court is perceived as politically dominated and the judges not independent of politics. Perception is truth in this era.

    Mealy-mouthed bullshit. Right now, those who perceive bias in the SCOTUS justices are perceiving truth.
  • The Supreme Court of Canada is different from the US Supreme Court, in that generally speaking, the vast majority of the justices would reject originalism, the notion that the interpretation of the original framers of the Constitution should trump over every other consideration when interpreting the law.
    https://nationalpost.com/news/canada/why-unlike-some-people-canadians-dont-lose-their-minds-over-supreme-court-appointments

    Come to think of it, I know of no other country other than the United States where originalism is seriously entertained as a viable constitutional theory.

    You have in different countries with judicial review a debate about how the court goes in terms of striking down legislation passed by the elected representatives. The binary between 'judicial restraint' and 'judicial activism' can be somewhat useful, even in reality, even justices who profess judicial restraint does not necessarily think the legislature can do whatever they want.
  • Gee DGee D Shipmate
    We have just had the announcement of 2 new Justices for the High Court (ie, much the equivalent of the US Supremes). A bit of speculation in the press over the last few days, and gossip in the profession for some time. Nothing at all like what has occurred in the US. Both already serving on the Federal Court, and should be good appointments. Neither was thought of as a real contender in the gossip. Others mentioned in the gossip are all young enough to be thought of when the next retirements occur.
  • Simon ToadSimon Toad Shipmate
    edited October 2020
    I'm so out of the loop that I missed that Gee D, and I read/scan multiple papers online almost daily.

    I used a jigsaw analogy to describe the process of judicial decision making, but that tends to the idea that their is one correct answer. Rather, it's like putting together a set of patterned tiles which look different depending on your arrangements. That's my wife's contribution.

    I also don't really know what originalist means, like, if it is a more complicated theory than the few lines given by Anglican Brat above. We call some judges "black letter lawyers" which very broadly means: just show me the text. But there are rules of interpretation that you learn at University (and then forget if you are like me), just like rules of evidence. But if things were clear cut, you wouldn't get split decisions...

    Oh, the proper place to make law is the legislature, btw. But they screw it up so often (no disrespect to the drafters intended). Plus, I really don't think we would have proper land rights if it wasn't for the High Court in Mabo.

    I'm going to read that article now Dave.
  • Simon ToadSimon Toad Shipmate
    edited October 2020
    @Dave W

    Oh man...

    From the article:
    Of course, it’s important to underscore that the data we have for Ginsburg’s potential replacement isn’t perfect. For one thing, we are relying on Judicial Common Space scores, which are based on the ideology of the senators who were instrumental in getting these judges appointed or the nominating president, and not based on the judges’ actual words or actions once they got there.1

    From the study they linked at note 1. above:
    Giles, et al. use Lewis, et al.’s NOMINATE scores to measure the senators’ and presidents’ ideology, and so we can place federal judges in the same left-right space as the current justices.9 The same holds for the four U.S. Senators on Trump’s list. Katsas, Larsen, Stras, and VanDyke present more of a challenge. All fall into category 3 above and so normally we would use Trump’s ideology score. Because it isn’t yet available, we substitute Vice President Pence’s score developed from his votes as a member of the House.

    Of course, it’s difficult to say with any degree of (un)certainty whether our ideological placements of the senators and the federal judges will predict their behavior on the U.S. Supreme Court; none are justices (yet). What we can say is that the ideological scores produce reasonably accurate predictions for the current justices (plus Ginsburg, Scalia, and Kennedy), as Table 2 shows.10 For example, based on Breyer’s lower court ideology we would expect him to vote 36.7% of the time in the conservative direction. Breyer’s actual percentage is 40.3%—for an error rate of 3.6 percentage points. For some justices the fit is tighter; notably, the two Trump appointees, Gorsuch and Kavanaugh, yield error rates < 2. For some justices the fit is looser (e.g., Alito and Sotomayor).

    Overall, through a strong and statistically significant relationship (p < 0.01) exists between the justices’ lower court scores and their voting on the Supreme Court.

    [I have deleted the table showing the results]

    This stuff makes me want to scream and tear my hair out. I can't tell you how much I loathe these sorts of analyses. I'm sorry, I stopped reading after that. If I was king of the world I would execute all statisticians. We might never get to Mars, but the world would be a much better place for people like me and Donald Trump. You know, the bullshit artists.
  • Gee DGee D Shipmate
    I agree with your loathing. What I would like is an English translation of the passages you quote.
  • Part of the problem is many people have veneration, even religious-ish devotion, for the Constitution. That includes some folks in the legal and judiciary fields, as well as all sorts of everyday folks. Especially if they also believe in Manifest Destiny, American Exceptionalism, and all that.

    It's all to varying degrees, too. I still have a fair amount of respect for the Constitution and other founding documents. I think the Founding Guys did a pretty good job putting it all together, given their many personal flaws, the times, etc.

    They should've had more sense than to focus on White, Male, Property Owners. They should've stopped slavery, then and there. (Though, AIUI, there was quite an argument about it. Even some of the slave-owners wanted to outlaw it.) Indentured servitude should've been stopped, too. They should've listened to Abigail Adams' "Remember the ladies, John". I don't remember what, if anything, they wrote about the indigenous people of America. There was some respect for them, and IIRC some of the founding ideas were based on some indigenous community practices. (E.g., the Iroquois Confederacy's "unwritten constitution".) But the guys may well have messed up there, too. Etc.

    So when people deal with anything about our founding, what the founders did, etc., it's steeped in our country's self-mythology.

    FWIW.
  • I've often wondered whether the boneheaded textual literalism of some Americans with regard to both the constitution and the Bible are related and indeed which came first and whether they're mutually reinforcing or simply drawing on the same tendencies of thought.
  • I'm not sure if I'm right about this broad brush statement GK, but if the Enlightenment culminated in the triumph of merchants and bankers over the aristocracy and monarchy, then the American founding documents are its crowning achievement.
  • Dave WDave W Shipmate
    Simon Toad wrote: »
    @Dave W

    Oh man...

    From the article:
    Of course, it’s important to underscore that the data we have for Ginsburg’s potential replacement isn’t perfect. For one thing, we are relying on Judicial Common Space scores, which are based on the ideology of the senators who were instrumental in getting these judges appointed or the nominating president, and not based on the judges’ actual words or actions once they got there.1

    From the study they linked at note 1. above:
    Giles, et al. use Lewis, et al.’s NOMINATE scores to measure the senators’ and presidents’ ideology, and so we can place federal judges in the same left-right space as the current justices.9 The same holds for the four U.S. Senators on Trump’s list. Katsas, Larsen, Stras, and VanDyke present more of a challenge. All fall into category 3 above and so normally we would use Trump’s ideology score. Because it isn’t yet available, we substitute Vice President Pence’s score developed from his votes as a member of the House.

    Of course, it’s difficult to say with any degree of (un)certainty whether our ideological placements of the senators and the federal judges will predict their behavior on the U.S. Supreme Court; none are justices (yet). What we can say is that the ideological scores produce reasonably accurate predictions for the current justices (plus Ginsburg, Scalia, and Kennedy), as Table 2 shows.10 For example, based on Breyer’s lower court ideology we would expect him to vote 36.7% of the time in the conservative direction. Breyer’s actual percentage is 40.3%—for an error rate of 3.6 percentage points. For some justices the fit is tighter; notably, the two Trump appointees, Gorsuch and Kavanaugh, yield error rates < 2. For some justices the fit is looser (e.g., Alito and Sotomayor).

    Overall, through a strong and statistically significant relationship (p < 0.01) exists between the justices’ lower court scores and their voting on the Supreme Court.

    [I have deleted the table showing the results]

    This stuff makes me want to scream and tear my hair out. I can't tell you how much I loathe these sorts of analyses. I'm sorry, I stopped reading after that. If I was king of the world I would execute all statisticians. We might never get to Mars, but the world would be a much better place for people like me and Donald Trump. You know, the bullshit artists.
    Well, if you’re looking for opinion about SC justice bias that doesn’t include any attempt at numerical weighting, I’m sure you could find that too. But if you’ve been listening to a PBS commentator discuss the SC, you’ve probably already heard her talk about the conservative wing of the court (Thomas, Alito, Gorsuch, Kavanaugh, Roberts) and the liberal wing (Breyer, Kagan, Ginsberg, Sotomayor), so I don’t know what else you’re looking for.
  • tclunetclune Shipmate
    I've often wondered whether the boneheaded textual literalism of some Americans with regard to both the constitution and the Bible are related and indeed which came first and whether they're mutually reinforcing or simply drawing on the same tendencies of thought.

    ISTM that the conservative bias that informs both is that things only get worse with time. This is an age-old view -- the Greeks thought that there was a golden age in their past, and they could never live up to that bygone time. Indeed, it was axiomatic in Greek philosophy that change was another name for decay. Modern liberalism has quite the opposite view -- that we can and should leave the world a better place than we found it.

    Given that dichotomy, the attraction of "originalism" (a truly vapid notion to my mind) would be attractive to those of conservative bent -- although it is still indefensible. And it is bizarre as a judicial philosophy of the Constitution -- the SCOTUS was not seen as having the right to overturn the laws of the elected branches on Constitutional grounds for the first dozen years or so of our existence, and it is certainly not an enumerated power from the Constitution. It was finessed by Marshall during Jefferson's Presidency, and was only possible because he declared that Jefferson was right, so Jefferson could not refuse to accept the SCOTUS ruling. It's just flabbergasting that SCOTUS justices would claim to be originalists and yet feel free to overturn duly-enacted laws of the US.
  • Simon Toad wrote: »
    I also don't really know what originalist means, like, if it is a more complicated theory than the few lines given by Anglican Brat above. We call some judges "black letter lawyers" which very broadly means: just show me the text. But there are rules of interpretation that you learn at University (and then forget if you are like me), just like rules of evidence. But if things were clear cut, you wouldn't get split decisions...

    "Originalism" is the idea that the original meaning of a law (or the Constitution) is the only valid one. There are several different flavors depending on whether the guiding standard is original application, original understood meaning, original intent, or simply the original text. This last one is closely related to what is referred to in American legal circles as "textualism" (which may be related to what you call "black letter lawyers"), which holds that only the actual text of a statute matters, regardless of the intent of the authors or the expected application or original implementation.

    The biggest problem with originalism is that it's essentially a scam. Blogger publius explains:
    Specifically, I want to riff off of this post by Scott Lemieux:
    The problem is that it's almost impossible to justify striking down affirmative action programs in "originalist" terms . . . . And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications. While it's not strictly accurate to say that you can't defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that "originalism" is essentially devoid of content. If this is what originalism means, then . . . Roe v. Wade is perfectly defensible in originalist terms[.]

    Here, here. Hear, hear. Originalism was a frequent topic of mine back when I started in 2004 (with Feddie often slapping me in the face with a virtual glove), but my law blogging has slacked off lately. But Lemieux correctly notes one of originalism’s most annoying tendencies when he talks about “levels of abstraction.” I call this “originalism’s ladder.” The idea is that originalism tends to analyze issues at different levels of generality depending on the context. In other words, it moves up and down the “ladder” strategically depending on the issue.

    Take desegregation. Lemieux is of course right that it’s impossible to argue that the original understanding of the framers/ratifiers of the 14th Amendment was to eliminate all racial classifications (e.g., schools didn't integrate in 1868). Also, for similar reasons, I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn't have even conceived of such policies (outside of crazy "radical" Massachusetts anyway).

    So, because the policy preference (no racial classifications) wasn’t specifically contemplated, up the ladder they go. And the original understanding of the 14th Amendment gets defined at progressively higher levels of abstraction until it can be read as prohibiting all racial classifications.

    With abortion, however, things are different. At a very high abstract level, the 14th Amendment (or perhaps the 9th) is about individual freedom and could conceivably justify Barnett-style libertarianism. But, it’s pretty clear that neither the Bill of Rights nor the Second Bill of Rights (the Civil War Amendments) were understood to legalize abortion. So, down the ladder the originalists go. In the abortion context, they hug the ground tightly and point out that the specific policy in question was not contemplated.

    In short, the originalist will climb up and down "orginalism's laddert" to choose the desired degree of abstraction necessary to achieve the desired outcome.
    Golden Key wrote: »
    Part of the problem is many people have veneration, even religious-ish devotion, for the Constitution. That includes some folks in the legal and judiciary fields, as well as all sorts of everyday folks. Especially if they also believe in Manifest Destiny, American Exceptionalism, and all that.

    It's all to varying degrees, too. I still have a fair amount of respect for the Constitution and other founding documents. I think the Founding Guys did a pretty good job putting it all together, given their many personal flaws, the times, etc.

    I think an even bigger part of the problem is that the degree the U.S. Constitutional order was restructured by the Civil War Amendments is greatly underappreciated by those who venerate the U.S. Constitution. The big problem with the U.S. Constitution as it existed in 1789 (or 1791 if you want to include the Bill of Rights) is that it failed. Madison's Constitution contained within it the fault lines that would fracture the country in the 1860s. The big problem with originalism (aside from the problem of originalism's ladder) is that it concentrates on an "original" Constitution that's too much powdered wig and knee breeches and not enough beard and stovepipe hat.
  • mousethief wrote: »
    @Simon Toad
    "whether the Judges put politics before the integrity of their decisions. "

    My perception is that this is already clear to general understanding. The American supreme court is perceived as politically dominated and the judges not independent of politics. Perception is truth in this era.

    Mealy-mouthed bullshit. Right now, those who perceive bias in the SCOTUS justices are perceiving truth.
    If I understand you, you are confirming my perception as fact?

    If so I wish you were not.
  • mousethief wrote: »
    @Simon Toad
    "whether the Judges put politics before the integrity of their decisions. "

    My perception is that this is already clear to general understanding. The American supreme court is perceived as politically dominated and the judges not independent of politics. Perception is truth in this era.

    Mealy-mouthed bullshit. Right now, those who perceive bias in the SCOTUS justices are perceiving truth.
    If I understand you, you are confirming my perception as fact?

    If so I wish you were not.

    When one says "perception is truth" the take-away is, "you don't care what's really true; you take as true what you think you see."
  • RicardusRicardus Shipmate
    edited October 2020
    Here is a question which probably reveals my legal ignorance.

    I understand the US system, like the UK, makes use of binding precedent. I thought that precedent means that when a sufficiently high court makes a ruling on an open question of law, that question ceases to be open and the high court's ruling* is the answer. If you don't like the court's reasoning, then tough, the answer they have come to is now the right one, simply because it is the one they have come to.

    E.g. until last year it was debatable whether the Queen was allowed to prorogue Parliament in the way requested by Mr Johnson. Now we know the answer: she wasn't. And even if you think the Supreme Court is a bunch of bitter Remoaners, she still isn't, and neither will her successors, unless Parliament passes a law that gives her the right.

    So what does it mean for Rode vs Wade to be overturned? Would that not imply that the previous ruling was not binding, and if so, what is the point of it?


    * 'High court' in the generic sense of 'court that is high'. Not the court that is called The High Court.
  • Dave WDave W Shipmate
    Higher court rulings are binding on lower courts; the US Supreme Court can reverse one of its own rulings (like Roe v. Wade) if five justices think it was wrongly decided.
  • tclunetclune Shipmate
    SCOTUS rulings are binding on lower courts. The Supremes themselves are free to overturn their predecessors' rulings (or their own previous rulings, for that matter.) But doing so is a rare event. The court appears to prefer to chip away at precedents of which they don't approve (as Churchill might say.) They "refine" it out of existence instead of baldly overturning it generally, presumably to maintain an aura of infallibility.
  • Thanks both. I hadn't thought about being at the top meaning you can overrule yourself as well.
  • BroJamesBroJames Purgatory Host, 8th Day Host
    The. U.K. Supreme Court can also overrule itself as its predecessor Judicial Committee of House of Lords also could.
  • EnochEnoch Shipmate
    A question for USians, Australians and others interested in what your country's highest court does. Do cases only go to the US Supreme Court if the the issue to be determined is either 'constitutional' or it is perceived that the the Constitution has some sort of bearing on what is to be decided? Or do all and any sorts of cases end up there if either a seriously uncertain legal issue is involved or if it is financially important enough to a litigant that he or she is prepared to shell out enough money to take it there?

    Here (England and Wales) although a few of the cases that get to the Supreme Court (formerly House of Lords) have political implications and so get a higher public profile, most of its business doesn't but is with cases that are unclear or are financially important enough to a litigant that he or she is prepared to shell out enough money to take it there.

    Taking @Simon Toad's point, cases don't get there, though, is the dispute is about facts rather than law.

  • I've often wondered whether the boneheaded textual literalism of some Americans with regard to both the constitution and the Bible are related and indeed which came first and whether they're mutually reinforcing or simply drawing on the same tendencies of thought.

    When it comes to Biblical hermeneutics, the first thing I learned was when it comes to text, there are two questions

    1) What does this text mean?
    2) How do we apply this text today?

    The answer to question 1 is not necessarily the same as answering question 2, especially if one utilizes historical criticism in which case question 1 is rephrased as "what does this text mean to the (1) author, and (2) to his/her immediate audience"

    I don't know much about legal interpretation, but in terms of Biblical and literary interpretation, the perennial debate is between those who insist on the primacy of authorial intent, and those who follow Michel Foucault in asserting that the author is dead and buried and contemporary readers are not under any obligation to follow the author.

    So in terms of the Constitution in US discourse, the question is: Are the Founders dead and buried?
  • Dave WDave W Shipmate
    Enoch wrote: »
    A question for USians, Australians and others interested in what your country's highest court does. Do cases only go to the US Supreme Court if the the issue to be determined is either 'constitutional' or it is perceived that the the Constitution has some sort of bearing on what is to be decided? Or do all and any sorts of cases end up there if either a seriously uncertain legal issue is involved or if it is financially important enough to a litigant that he or she is prepared to shell out enough money to take it there?

    Here (England and Wales) although a few of the cases that get to the Supreme Court (formerly House of Lords) have political implications and so get a higher public profile, most of its business doesn't but is with cases that are unclear or are financially important enough to a litigant that he or she is prepared to shell out enough money to take it there.

    Taking @Simon Toad's point, cases don't get there, though, is the dispute is about facts rather than law.
    Here's what uscourts.gov has to say:
    Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The Court has original jurisdiction (a case is tried before the Court) over certain cases, e.g., suits between two or more states and/or cases involving ambassadors and other public ministers. The Court has appellate jurisdiction (the Court can hear the case on appeal) on almost any other case that involves a point of constitutional and/or federal law. Some examples include cases to which the United States is a party, cases involving Treaties, and cases involving ships on the high seas and navigable waterways (admiralty cases).
    You can't just buy your way up if you don't like the result from an appellate court - the SC has a limited docket and there are lots of cases they refuse to hear.
  • AIUI, cases are only supposed to get to the US Supreme Court if all lower-court options have been exhausted--and AIUI getting to the point where the Supremes are the only other legal option normally takes years.

    They don't have to take all cases, and they don't always explain why they don't take a case.

    I'm sure the law geeks ;) among us can correct what I said, as necessary. IANAL, but I'm going what I've gleaned from media coverage over the years.

    (And robust thanks to our law geeks! :) )
  • Sorry, my post was a cross post.
  • Enoch wrote: »
    A question for USians, Australians and others interested in what your country's highest court does. Do cases only go to the US Supreme Court if the the issue to be determined is either 'constitutional' or it is perceived that the the Constitution has some sort of bearing on what is to be decided? Or do all and any sorts of cases end up there if either a seriously uncertain legal issue is involved or if it is financially important enough to a litigant that he or she is prepared to shell out enough money to take it there?

    Here (England and Wales) although a few of the cases that get to the Supreme Court (formerly House of Lords) have political implications and so get a higher public profile, most of its business doesn't but is with cases that are unclear or are financially important enough to a litigant that he or she is prepared to shell out enough money to take it there.

    Taking @Simon Toad's point, cases don't get there, though, is the dispute is about facts rather than law.

    There are a few appeals as of right to the Canadian Supreme Court (mostly in criminal matters where there was disagreement on a point of law in the court(s) below), but for most classes of cases the SCC will only hear an appeal with leave. That said, chances are pretty good that the SCC will eventually grant leave in an appropriate case when the constitutionality of legislation is at issue. The test is whether there is an issue of law is one of “national importance”. Leave is always granted or denied without reasons.

    AIUI the US Supreme Court has a similar leave requirement for most cases, referred to as granting or denying certiorari.

  • The Supreme Court will likely take on a case if two or more appellate courts disagree on a point of law. They also will consider a direct appeal from a State Supreme Court as long as the question applies to a constitutional point. Often, such cases are screened by justice and remanded to the court as a whole or are denied by the justice.
  • Ricardus wrote: »
    Here is a question which probably reveals my legal ignorance.

    I understand the US system, like the UK, makes use of binding precedent. I thought that precedent means that when a sufficiently high court makes a ruling on an open question of law, that question ceases to be open and the high court's ruling* is the answer. If you don't like the court's reasoning, then tough, the answer they have come to is now the right one, simply because it is the one they have come to.

    E.g. until last year it was debatable whether the Queen was allowed to prorogue Parliament in the way requested by Mr Johnson. Now we know the answer: she wasn't. And even if you think the Supreme Court is a bunch of bitter Remoaners, she still isn't, and neither will her successors, unless Parliament passes a law that gives her the right.

    So what does it mean for Rode vs Wade to be overturned? Would that not imply that the previous ruling was not binding, and if so, what is the point of it?

    The underlying premise of the American government is that it is not infallible. It's allowed to admit that it made a mistake. Even the Constitution is not considered infallible, hence the ability to make amendments. When the U.S. Supreme Court reverses itself it's basically saying "this previous court was wrong, and here's why".
    Enoch wrote: »
    A question for USians, Australians and others interested in what your country's highest court does. Do cases only go to the US Supreme Court if the the issue to be determined is either 'constitutional' or it is perceived that the the Constitution has some sort of bearing on what is to be decided?

    No, purely statutory cases are accepted by the Supreme Court as well. For example, Ledbetter v. Goodyear involved interpreting the applicability of a statute against gender discrimination. Because it was a purely statutory ruling Congress was able to "overturn" the Supreme Court by re-writing the statute in a way that suited its preferences better.

    Because it's an independent branch of the U.S. government the Supreme Court only accepts the cases it wants to accept. Or, more specifically, it accepts the cases at least four of the current justice want to accept. That's the number required to grant certiorari.
  • DafydDafyd Shipmate
    in terms of Biblical and literary interpretation, the perennial debate is between those who insist on the primacy of authorial intent, and those who follow Michel Foucault in asserting that the author is dead and buried and contemporary readers are not under any obligation to follow the author.
    Foucault is really quite a late comer to the idea that the aim of interpretation is not to uncover the author's intention. The earliest explicit statement that I can think of the position that the search for the author's intention is a distraction is actually by C.S. Lewis.

  • Simon ToadSimon Toad Shipmate
    edited October 2020
    Golden Key wrote: »
    Sorry, my post was a cross post.

    geez GK, chillax will you? There's no need to be cross. :tongue:
  • Gee DGee D Shipmate
    Enoch - the answer is not simple. There are some matters within the original jurisdiction of the High Court. Frequently, the Court (usually a single Justice) will remit the matter to a lower court to hear and decide. In doing so, the lower court is not acting as delegate of the High Court to hear and then return as a case stated; it is acting as if the case had originally been brought in that court.

    Appeals have had a complex history, with some lying as of right, some needing leave and yet others needing special leave. These days, appeals from inferior courts need special leave. Usually applications for special leave are determined by 2 Justices in chambers. Some are referred to the Court to decide whether that should be granted, but more often than not, it is refused in chambers. Questions taken into account in deciding whether to grant special leave include an estimate of prospects of success, whether there is a conflict of authority in lower courts that needs resolution, and the overall importance of the case. If you want to go further into it, look up Austlii and go to the boards dealing with Special Leave Dispositions and Transcripts. I'm afraid that I can't remember whether leave or special leave (or neither) is required to appeal to the Full Court from a decision of a single Justice on a matter within the original jurisdiction.
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