"Is this a principled way of judging? It depends on whether 'I am generally sympathetic or unsympathetic towards group X” is a principled criterion.'"
I would argue that to the extent the sympathy or lack thereof attaches to the group rather than the underlying issues of the case, is emphatically NOT a principled criterion. It is one thing for a left-liberal, ACLU-adjacent judge in the 1990s or early 2000s to have taken the view that the First Amendment broadly protects speech for everyone while the Second Amendment protects no enforceable right at all (illusory "collective" ones notwithstanding) for anyone. It would be quite another for that same judge to have suddenly found a right of some traditionally disfavored (and therefore favored, by him) group to bear arms in a particular instance, or to have conveniently found that some pro gun rights rally falls outside the First Amendment that would normally have been construed more broadly for advocates of anything else. Or to borrow your own example, knowing that a death penalty case lost 6-3 without knowing the precise underlying legal arguments or issues is not evidence of bias, but could be if the same court showed a pattern of striking down some death penalty cases 6-3 while upholding others 5-4, where the only obvious difference between them was the kind of person getting executed.
A less hypothetical example, perhaps, would the originalist judges who universally agreed in the 1990s that the free exercise clause of the First Amendment was originally intended to provide no religious exemption to any neutral law of general applicability (Employment Division v. Smith, City of Boerne v. Flores (1997)) but now seem equally unanimous that it does (Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, Burwell v. Hobby Lobby Stores, Inc., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 303 Creative LLC v. Elenis). It is not as though the First Amendment itself changed over the past few decades, nor did anyone uncover any new evidence from the 18th Century that the framers of the First Amendment originally intended anything different in 1791 than the originalists originally determined that they had in 1990. The only obvious or apparent thing that did change is which religious group is asserting that right.
Why did you omit the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah from your list of cases on the issue of "religious exemption to any neutral law of general applicability"? Although Santeria is Haram, their cutting method of "animal sacrifice" physically overlaps the live Halal food-preparation training method by which all Islamic men are to be kept skilled in the practice of quickly cutting throats of infidels without empathy per Holy Quran 5:33 and 8:12 https://supreme.justia.com/cases/federal/us/508/520/#:~:text=The%20Free%20Exercise%20Clause%20protects,rather%20than%20merely%20burdening%20it. "Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The animals are killed by cutting their carotid arteries and are cooked and eaten following all Santeria rituals except healing and death rites." The Ordinance was broad enough to ban HALAL throat-cutting: Ordinance 87-52, which defines "sacrifice" as "to unnecessarily kill ... an animal in a ... ritual ... not for the primary purpose of food consumption" Only a white supremacist would deem throat-cutting to be an "unnecessar[]y ritual", just as white supremacists banned other religious practices as "unnecessary": (E.g., the 1829 abolition of Sati (widow burning) by the colonial white supremacists colonial rulers in India) https://www.youtube.com/watch?v=Tkd0gHl1h1g Similarly, white supremacists used violence to ban the ritual slaughter of black slaves (abeed) by black African rulers in their native lands in Africa. https://www.youtube.com/watch?v=HHShIEP2DRE&t=79s ("hundreds" of abeed slaves were killed by ritual beheading in imitation of halal islamic rituals) Upon what principal, other than religious discrimination can Muslims be barred from practicing their traditional and mandatory rituals: https://corpus.quran.com/translation.jsp?chapter=5&verse=33 White supremacists Jefferson and John Adams went to call on Tripoli’s envoy to London, Ambassador Sidi Haji Abdrahaman. They asked him by what right he extorted money and took white slaves (saqaliba). As Jefferson later reported to Secretary of State John Jay, and to the Congress:
The ambassador answered us that [the right] was founded on the Laws of the Prophet, that it was written in their Koran, that all nations who should not have answered their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as prisoners, and that every Mussulman who should be slain in battle was sure to go to Paradise. According to America, the dispatch of the U.S. Navy and Marine Corps by the white supremacist president Jefferson to free the white slaves (Saqaliba) on the Barbary shore was the first and most important act of his presidency. It took several years of bombardment before the holy antiracist Islamic practice of Saqaliba (white slavery) was forcibly ended, in defiance of the Quranic justification for that practice.
When a criminal rents or borrows the vehicle or house of another, and uses such private property in the course of doing something unlawful, without the knowledge and consent of the owner, the State's power to deprive the owner of "possession" or of "title" is derived from the existence of a deception (the criminal's concealment of true intentions). In no other way could the State obtain possession of the property of an "innocent owner". In principle, the "innocent owner" is himself the victim of haram crime (theft by false pretenses). The idea that the state itself should benefit (at the expense of "innocent" people) in proportion that the state has allowed its land to be infested by criminals (dishonest thieves/criminals) is abhorrent to universal principals of justice and equity. The State has a duty to PROTECT THE INNOCENT from Criminals, not to USE CRIMINALS as The STATE's REVENUE AGENTS to collect the Property of the INNOCENT people. The State's failure to PREVENT AND DETER CRIME is the method of generating revenue (at the expense of the "innocent"). Further, the physical seizure of the property (keeping away from the "innocent owner") pending a Determination of forfeiture of TITLE is entirely gratuitous and unnecessary. The State can prohibit the alleged law-breaker from possessing/using the vehicle or house going forward (e.g., by injunction or by imprisonment).... But that is very different from depriving the "innocent owner" of the use and possession of the asset. The State can Bail-Bond the Car or simply release the car back to the "innocent owner" subject to and pending a later Final Determination of forfeiture of "title". To justify the pre-forfeiture withholding of the possession of the car (a type of Deprivation of Property that precedes the Second Deprivation, of Title) requires a prompt Hearing separate and distinct from the Final Determination of Forfeiture of Title. The contention that the state can gratuitously withhold property or liberty, pending a Trial, is entirely inconsistent with the white supremacist dhimmi legal concepts of "Excessive Bail" and "Unreasonable Seizures" and "Process of Law". While it is "not clear that non-mechanical judging produces better outcomes" (Garbage in, Garbage Out), it is also not clear that modern humans can be trusted to maintain the basic rules and principals of civilized liberty and the rule of law.
I’m an extreme legal realist and am unsure there is any principled way to judge. (This article makes a case for robotic judging as most principled but I’m unsure it works for difficult issues like gun rights, abortion, etc.) I’d have a lot more respect for the courts if judges were honest about their biases. As it is, I think they are lying to themselves, to us, or to both in saying they are “applying neutral principles of law to decide cases,” Agendas can be wise or unwise, but hidden agendas are dishonorable and cynical.
This might not be workable--but how about allowing an owner disputing a forfeiture to post a bond for the value of whatever is forfeited, with the proviso that if the forfeiture is determined to be unreasonable, the public entity reimburses the owner for the premium. That would allow use of the car by the owner claiming innocence while the more complete forfeiture hearing can be organized and disputed. That won't solve the problem of the unequal burden of proof between civil and criminal determinations, and I don't know if sureties WOULD want to write this kind of bond. I presume the underwriting would look at the "innocence" details in considering whether or not to post the bond.
Thus even if the car is driven to another state, or even wrecked, the state would get its money if it is entitled to it.
On the topic of precedent: I agree that no judge can operate entirely without his or her preferences or biases being involved, and that the key is whether they can come up with a principled way of deciding whether to go with precedent or new ground. And the key to whether they do depends a whole lot on the reasoning shown in the opinion. With something like Dobbs, the reasoning was so awful that it is hard to justify calling the overturning of precedent as "principled." Perhaps someone could have come up with an opinion that justified the departure, but Alito didn't pen it.
I cannot remember the last time I read a legal analysis of a Supreme Court Split Decision that wasn’t focusing on the individual justices legal theories or biases. It was probably law school. You presented the case so reasonably that I was surprised Kagan was in the Dissent, since she is normally the Justice I trust to read precedent fairly. But once again, I’m part of the problem, focusing on the specific Justices rather than the law
"Is this a principled way of judging? It depends on whether 'I am generally sympathetic or unsympathetic towards group X” is a principled criterion.'"
I would argue that to the extent the sympathy or lack thereof attaches to the group rather than the underlying issues of the case, is emphatically NOT a principled criterion. It is one thing for a left-liberal, ACLU-adjacent judge in the 1990s or early 2000s to have taken the view that the First Amendment broadly protects speech for everyone while the Second Amendment protects no enforceable right at all (illusory "collective" ones notwithstanding) for anyone. It would be quite another for that same judge to have suddenly found a right of some traditionally disfavored (and therefore favored, by him) group to bear arms in a particular instance, or to have conveniently found that some pro gun rights rally falls outside the First Amendment that would normally have been construed more broadly for advocates of anything else. Or to borrow your own example, knowing that a death penalty case lost 6-3 without knowing the precise underlying legal arguments or issues is not evidence of bias, but could be if the same court showed a pattern of striking down some death penalty cases 6-3 while upholding others 5-4, where the only obvious difference between them was the kind of person getting executed.
A less hypothetical example, perhaps, would the originalist judges who universally agreed in the 1990s that the free exercise clause of the First Amendment was originally intended to provide no religious exemption to any neutral law of general applicability (Employment Division v. Smith, City of Boerne v. Flores (1997)) but now seem equally unanimous that it does (Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, Burwell v. Hobby Lobby Stores, Inc., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 303 Creative LLC v. Elenis). It is not as though the First Amendment itself changed over the past few decades, nor did anyone uncover any new evidence from the 18th Century that the framers of the First Amendment originally intended anything different in 1791 than the originalists originally determined that they had in 1990. The only obvious or apparent thing that did change is which religious group is asserting that right.
Why did you omit the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah from your list of cases on the issue of "religious exemption to any neutral law of general applicability"? Although Santeria is Haram, their cutting method of "animal sacrifice" physically overlaps the live Halal food-preparation training method by which all Islamic men are to be kept skilled in the practice of quickly cutting throats of infidels without empathy per Holy Quran 5:33 and 8:12 https://supreme.justia.com/cases/federal/us/508/520/#:~:text=The%20Free%20Exercise%20Clause%20protects,rather%20than%20merely%20burdening%20it. "Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The animals are killed by cutting their carotid arteries and are cooked and eaten following all Santeria rituals except healing and death rites." The Ordinance was broad enough to ban HALAL throat-cutting: Ordinance 87-52, which defines "sacrifice" as "to unnecessarily kill ... an animal in a ... ritual ... not for the primary purpose of food consumption" Only a white supremacist would deem throat-cutting to be an "unnecessar[]y ritual", just as white supremacists banned other religious practices as "unnecessary": (E.g., the 1829 abolition of Sati (widow burning) by the colonial white supremacists colonial rulers in India) https://www.youtube.com/watch?v=Tkd0gHl1h1g Similarly, white supremacists used violence to ban the ritual slaughter of black slaves (abeed) by black African rulers in their native lands in Africa. https://www.youtube.com/watch?v=HHShIEP2DRE&t=79s ("hundreds" of abeed slaves were killed by ritual beheading in imitation of halal islamic rituals) Upon what principal, other than religious discrimination can Muslims be barred from practicing their traditional and mandatory rituals: https://corpus.quran.com/translation.jsp?chapter=5&verse=33 White supremacists Jefferson and John Adams went to call on Tripoli’s envoy to London, Ambassador Sidi Haji Abdrahaman. They asked him by what right he extorted money and took white slaves (saqaliba). As Jefferson later reported to Secretary of State John Jay, and to the Congress:
The ambassador answered us that [the right] was founded on the Laws of the Prophet, that it was written in their Koran, that all nations who should not have answered their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as prisoners, and that every Mussulman who should be slain in battle was sure to go to Paradise. According to America, the dispatch of the U.S. Navy and Marine Corps by the white supremacist president Jefferson to free the white slaves (Saqaliba) on the Barbary shore was the first and most important act of his presidency. It took several years of bombardment before the holy antiracist Islamic practice of Saqaliba (white slavery) was forcibly ended, in defiance of the Quranic justification for that practice.
When a criminal rents or borrows the vehicle or house of another, and uses such private property in the course of doing something unlawful, without the knowledge and consent of the owner, the State's power to deprive the owner of "possession" or of "title" is derived from the existence of a deception (the criminal's concealment of true intentions). In no other way could the State obtain possession of the property of an "innocent owner". In principle, the "innocent owner" is himself the victim of haram crime (theft by false pretenses). The idea that the state itself should benefit (at the expense of "innocent" people) in proportion that the state has allowed its land to be infested by criminals (dishonest thieves/criminals) is abhorrent to universal principals of justice and equity. The State has a duty to PROTECT THE INNOCENT from Criminals, not to USE CRIMINALS as The STATE's REVENUE AGENTS to collect the Property of the INNOCENT people. The State's failure to PREVENT AND DETER CRIME is the method of generating revenue (at the expense of the "innocent"). Further, the physical seizure of the property (keeping away from the "innocent owner") pending a Determination of forfeiture of TITLE is entirely gratuitous and unnecessary. The State can prohibit the alleged law-breaker from possessing/using the vehicle or house going forward (e.g., by injunction or by imprisonment).... But that is very different from depriving the "innocent owner" of the use and possession of the asset. The State can Bail-Bond the Car or simply release the car back to the "innocent owner" subject to and pending a later Final Determination of forfeiture of "title". To justify the pre-forfeiture withholding of the possession of the car (a type of Deprivation of Property that precedes the Second Deprivation, of Title) requires a prompt Hearing separate and distinct from the Final Determination of Forfeiture of Title. The contention that the state can gratuitously withhold property or liberty, pending a Trial, is entirely inconsistent with the white supremacist dhimmi legal concepts of "Excessive Bail" and "Unreasonable Seizures" and "Process of Law". While it is "not clear that non-mechanical judging produces better outcomes" (Garbage in, Garbage Out), it is also not clear that modern humans can be trusted to maintain the basic rules and principals of civilized liberty and the rule of law.
> It makes case outcomes less dependent on the composition of the Court.
But it makes them more dependent on the composition of previous Courts at random times. Is that better?
Maybe the answer is to end civil forfeiture until after a criminal conviction.
I’m an extreme legal realist and am unsure there is any principled way to judge. (This article makes a case for robotic judging as most principled but I’m unsure it works for difficult issues like gun rights, abortion, etc.) I’d have a lot more respect for the courts if judges were honest about their biases. As it is, I think they are lying to themselves, to us, or to both in saying they are “applying neutral principles of law to decide cases,” Agendas can be wise or unwise, but hidden agendas are dishonorable and cynical.
This might not be workable--but how about allowing an owner disputing a forfeiture to post a bond for the value of whatever is forfeited, with the proviso that if the forfeiture is determined to be unreasonable, the public entity reimburses the owner for the premium. That would allow use of the car by the owner claiming innocence while the more complete forfeiture hearing can be organized and disputed. That won't solve the problem of the unequal burden of proof between civil and criminal determinations, and I don't know if sureties WOULD want to write this kind of bond. I presume the underwriting would look at the "innocence" details in considering whether or not to post the bond.
Thus even if the car is driven to another state, or even wrecked, the state would get its money if it is entitled to it.
On the topic of precedent: I agree that no judge can operate entirely without his or her preferences or biases being involved, and that the key is whether they can come up with a principled way of deciding whether to go with precedent or new ground. And the key to whether they do depends a whole lot on the reasoning shown in the opinion. With something like Dobbs, the reasoning was so awful that it is hard to justify calling the overturning of precedent as "principled." Perhaps someone could have come up with an opinion that justified the departure, but Alito didn't pen it.
I cannot remember the last time I read a legal analysis of a Supreme Court Split Decision that wasn’t focusing on the individual justices legal theories or biases. It was probably law school. You presented the case so reasonably that I was surprised Kagan was in the Dissent, since she is normally the Justice I trust to read precedent fairly. But once again, I’m part of the problem, focusing on the specific Justices rather than the law