jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
No. But it is the court's job to hold the litigants to precedent whenever the litigants insist upon a conclusion that relies, or is supposed to rely, on said precedent, or whenever the litigants make arguments that contradict precedent (and that don't show said precedent to be Unconstitutional).
Bolded emphasis mine. Exactly. And my point is that the court is failing to do this. You already quoted the precedent that is supposed to control, and my point is that the court is failing to follow that precedent when it reaches its conclusion that the law passes intermediate scrutiny. It is the court that reached that conclusion, not just a litigant. It is the court that made the decision, not the litigants. It is the court that justifies that decision, not the litigants. However much the court may rely on the litigants to supply it with arguments, it is the court's decision, not that of the litigants.
If you nevertheless insist that the court can use only reasoning supplied by the litigants, then my comment about colluding litigants, and the precedent that such litigants could set, stands unchallenged.
Wait. Is or is not the causation standard for intermediate scrutiny precedent?
If it is, then the court is obligated to follow it whether or not a litigant raises it (because the precedent controls the court, not the litigants). If it's not, then it doesn't matter whether the plaintiff shows that the data doesn't show causation, the court could still claim that the law passes intermediate scrutiny, because causation wouldn't then be a precedential requirement of intermediate scrutiny, and the court could then claim that correlation is sufficient for the intermediate scrutiny standard.
Which is it?
I thought they had, but I'm just going off of a very poor memory. I'd have to read all of the briefs to be able to say one way or the other. I'll presume you're right here until I discover otherwise.
The government didn't cite any data at all? That's surprising. It certainly is a departure from the other cases, so I think you've got a point here.
I certainly agree that any failures on the part of the government need to be pointed out by the plaintiffs. I was always under the impression that in litigation, you need to always bring up every possible argument that your opponent is wrong. I've never understood why counsel wouldn't do so in these cases, and that's why I brought up the question of competence. A competent litigator will attack the opponent's every weakness, and give his opponent nowhere to go. How, then, can the plaintiffs' counsel in these cases be considered anything other than incompetent if they've consistently failed to do that?
The court does not really justify the decision. They validate it. The distinction being where the proof comes from. The court does not supply the proof, they simply ensure that the litigants appropriately supply the proof.
Intermediate scrutiny requires the government demonstrate that the law is substantially related to an important interest. The requirement is to demonstrate a substantial relationship. There is no specific way this needs to be justified. It is left to the government as to how this is done. There is no specific way this needs to be validated either.
The way the government typically justifies this is through data backed up by experts that claim there is a substantial relationship. If there is no dispute over the data/claim, the court does a cursory check of the data and the claim to validate that there is nothing obviously wrong. If there is a dispute with the data/claim then court will evaluate the dispute to the extent of the dispute.
The demonstration of causation is a common way to determine if there is in fact a substantial relationship between the data and the claim. I am proposing to use causation as a way to dispute the claim that there is a substantial relationship. It is not something required by intermediate scrutiny.