The Supreme Court in major cases relies on matters of definition, whether some thing is another thing, to settle issues, and are therfore vacuous except in their results.
Major Supreme Court decisions are not based on arguments, They do not marshall evidence or derive logical and plausible inferences even though they may elaborate such niceties as when Brown v. Board added as a footnote that Kenneth Clark’s psychological study showed that Black children had low self esteem. Rather, what the jurists do is assert whether one category is to be included in another class. Something is or is not part of an essence. This assertion is metaphysical because it is a matter of definition, one word representing a different state of being rather than what another word indicates even though there are no significant empirical differences between them. So Plesseyv. Fergeson decided that Blacks could be segregated on railroad cars because Blacks were different from whites in race and economic and social rank while deciding in Brown v, Board that Black children could not be segregated in schools because of race even if Black children remained of a different race and remained largely inferior in social and economic standing to white children. There was a major flip flop in the way citizenship should be treated, from putative inequality to putative equality. What allowed such a change was not an argument but a matter of intellectual and cultural history. World War II had changed how people thought about race and so categories had to be dealt with categorically, which means either one or the other.
Women were also regarded in law as an exceptional class. They were barred from certain occupations because that might endanger the bearing of the young. Women were not drafted into the military.. Ruth Bader Ginsberg accomplished the same metaphysical transformation with regard to being female. Women could not be discriminated against because women were covered by the fourteenth amendment even though that was a recognized discrimination in the past even to the extent that it had not even been necessary to mention that exception. The silence had become a thing to be included with men. But there are still exceptions. Women are likely to be drafted should a draft be revived but are likely not to join at present or the future in the infantry or artillery because they cannot carry such heavy packs or projectiles and also there are rules allowing single sex bathrooms. But there is a transition between when women are excluded except for exceptions and now they are included but with exceptions. There is no empirical difference between those states, which one is either real or not, but an entirely different perception that is a matter of defamation. It is impossible to know in advance whether a category will be regarded as an exception or not until people experience the potential exception and people sense that as legitimate, such as whether transwomen are allowed into women’s bathrooms. This is a controversial matter because people disagree. Ally McBeal was in favor of single sex bathrooms and contemporary conservatives think otherwise. It is about historical and political change rather than an accurate or clarified definition of the word “woman”.
There is no telling what people that are excluded from a category can be reclassified as inclusive. That is the nature of being an exception in that it is an example that has to be judged as inclusive of an abstraction. For example, should children of fourteen be allowed to vote because they are people and citizens and a lower age boundary on voting is a singular restriction. There is no limit on old people voting even though cardinals stop voting in picking a Pope at 75. Maybe younger than eighteen year olds should be allowed to vote if they are emancipated and can show themselves self supporting. But that goes against the idea that voting is not subject to a degree of economic wealth as was the case when only landholders or worth a certain number of pounds could vote. The real division is intellectual and cultural. A thirteen year old became an adult in ancient Judaism presumably because a person was an adult if old enough to be a shepherd. Can all people who can manage software qualify to vote? Or age out of doing technology? It is a silly question until it is raised as when women insisted they should be included into voters.
Apply the idea that major Supreme Court decisions are based on affirming si or non-- either a category is or is not another category-- to some contemporary Supreme Court issues. The question of birthright citizenship is one of these and in their oral arguments it was made pretty clear that “all “ meant all. But there was some discussion about whether the two exceptions to birthright citizenship, which included indigenous Americans and children born in an area of the United States controlled by a foreign power, were the only exceptions that might exist. Actually those two exceptions are provided for by the fourteenth amendment because they are peoples who were not at the time under the jurisdiction of the united states or might become outside of the control of the jurisdiction of the United States. Not exceptions that weren’t covered. But what about other exceptions. But, as I have argued, there is no telling in advance whether a new exception arises in advance that broaches whether one thing can be separated out of the entity that is said to exist in its totality. So it is pointless to speculate about possible future exceptions whereby someone might be considered not a birthright citizen. Should sentient robots who manufacture “offspring in the United States be entitled to citizenship> Beats me.
The Supreme Court decided recently that the Mississippi case outlawing conversion therapy, whereby patients were talked out of being gay, was illegal because it violated the constitutional guarantee of free speech. The practitioners were talking and so what they did was not to be regulated, But there are many utterances which are exceptions of free speech. You cannot threaten or libel people. Practitioners of conversion therapy are also an exception because they are engaged ina professional medical practice where talk is an intervention to alter a medical statement of being and so to be regulated by acceptable medical practice. But rather than an exception to the rule, speech in conversion therapy could be considered the alteration of a state of being. It is free speech because people can exercise their thoughts even about so controversial a topic as homosexuality. Or else it could be thought not free speech because of its effects, and so treated as an action rather than an observation., just like threatening people. When is free speech one or the other? That is metaphysical because it is a categorical definition, one or the other. In the case of free speech as an action, it is ubiquitous and so always controllable and some conservatives think it is legitimate to constrain thought expressed in ideas that are unpatriotic, like burning flags or by liberals who think that people should not say things other people find to be hurtful. The calculus concerning free speech as an idea is different and responds to a different sense of the concept of free speech. It concerns whether the speech is conveyed as one to be recognized as purely verbal. Kant thought there should be free speech in universities because people were clearly playing around with ideas. It would be rude and disorderly to curse God during a church service and the person could be expelled but not jailed at least in a democratic society. Newspapers can decide what is acceptable speech in their own pages. I notice that recently the word “fuck” was introduced into an article by the NY times in an article about the use of cussingamong politicians tough the article used the term f-word in latter parts of the article. How to change speech as a form of talk is very hard. Because it doesn’t mean a truce, as in the case of speech as an action; it is the change in a cultural usage, a matter of etiquette when you change what is or is not speech as talk.
Mississippi has also chimed in on this time the liberal view of mail voting. It says by law that a mail-in ballot sent postmarked by election day will be considered as a legitimate ballot even though it arrives in the counting center after election day. The federal government has challenged that state made administrative procedure even though states are supposed to set their own rules for elections, with the exception of when them state engages inracialmdiscrimination, and that is why the Voting Act of 1964 was passed. What possible reason might justify Miossissippi’s rule? And what is the either/or definition involved? Let us say that the federal government asserts by definition that voting had to be done on election day because to allow early balloting is to prevent voters from knowing the last few days when an event or a shifting mood might change how people would vote just as a vote a few days after el;ectionday would give those voters the advantage of a few more days to ponder what might be new events. Making election day a single day puts all voters equal, just like starting a race at a single opening line and a single finish line. Only fair. In that case, under that understanding, a legitimate election essentially requires a single day vote. That might present practical difficulties. There might not be enough election precincts or centers if everyone had to vote on the same day. Otherwise lines for voting would be too long. Maybe one expedient would makeElection Day a national holiday so people could vote any time of the day and not for working class people who tend to vote after work. There might be suits yto deal with discriminatory practices but not different in quality than the findings that poll taxes and literacy tests were illegal forms of discrimination and so overcoming these Jim Crow restrictions. Maybe there might be a way to institute electronic distance voting that made sure one voter got only one ballot. But all the technicalities aside, the integrity of election day could be honored and the election process qualitatively improved so that it was a new thing.
The clearest recent case of when one thing is one thing or another by definition occurred when the Supreme Court decided that the president could not be charged with an official act while still subject to a non-official act such as killing a president’s mistress. Conservatives who like the president have increased power thought that was a good idea because it meant an expresident would not be harassed for having made policy decisions like sending ICE to Minneapolis or starting a war without congressional authorization and so might reconsider doing things that were in the public interest. It would be like trying ex-President Truman for having taken control of part of the United States steel industry during the Korean War just because the supreme court said that was illegal. Liberals thought this distinction a bad idea because presidents would not be held accountable for their improper actions even though, before Trump, presidents had been careful of doing illegal political actions because of the thought of the rule of law and their reputations, not a possible criminal suit. But in the brief time since that decision, the distinction becomes toothless because it can be argued that any act that is illegal is outside his official duties by definition and so any event by a president that can be regarded as a crime can be prosecuted. So there is no difference between official and private events. If he prosecutes an illegal war then it is not within his official purview. It all depends on whether something illegal can be official and that is just a matter of which word to apply. So much for trying to parse what the Supreme Court means. It does not have the linguistic dexterity to do other than stand by a word or assert the word to mean its opposite. Lawyers grapple with the meaning of words rather than with words as always having to describe something. That way, those so-called arguments get reducible to nothing.