Brett Stuff
Judging the Judges
Term Year: 2018

New Prime Inc., Petitioner v. Dominic Oliveira

Summary Analysis

DATE: 2019-01-15
DOCKET: 17-340
NAME: New Prime Inc., Petitioner v. Dominic Oliveira

   AUTHOR: Gorsuch
   JOINING: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan
   GOOD: Yes

OPINION: Concurring
   AUTHOR: Ginsburg
   JOINING: None
   GOOD: Yes

Case Commentary

Is this case worthy of consideration?

F! No!

Just a mere week ago, The Court decided almost the very same case, which means The Justices are slicing the decisions too thin. Also, I am not in favour of Arbitration... any Arbitration.

Now, I do Agree with The Court. But then, even a broken clock is right every once in awhile. In this case, they decided that a court should decided whether a case can be arbitrated. In the last, they decided an arbitrator should decide the very same thing. I wonder who gets to decide which precedent applies?

I think this case is so unworthy (not only of The Court's time, but my time, as well) that I will very likely only bother to read the Worthy Cases next year. I have no idea how I will decide whether something is Worth Reading prior to reading it. I'll probably just exclude everything that looks like quibbling, which this case clearly is.

In this case the quibble was right. In the last, it was not. And although I can differentiate between the logic of the two, the difference is not overly meaningful to me... if at all.

This case:

Previous Case (17-1272: Schein v. White):
There, really, is no rhyme or reason to it. And a court should always decide, whenever the parties cannot agree.

I learned a new word-phrase, yesterday: Carve Out. A Carve Out gives special treatment to one group. It makes one group more equal than the rest. It's a policy decision that thumbs its nose at that whole All Men are Created Equal nonsense. After all, who believes that dreck (short for whaledreck), anymore? And if you haven't guessed, I think Carve Outs are a bad idea, akin to the slow rot of society, and a very good way to detect corruption.

And the Federal Arbitration Act has at least one Carve Out, which is what this case it about.

Now, it might not be The Supreme Court's job to eliminate Carve Outs. But I see no reason for it to create them. And when we slice and dice (refine, as it were) decisions ever further, that is exactly what is happening. And that is exactly what is happening here.

Do you believe in Same Sex Marriage? Do you support it? Do you believe allowing Same Sex Marriage (by itself) without redefining Marriage (itself) does any good? Enacts any changes?

In this case (like many cases), The Supreme Court deconstructs a word in order to explain its decision. In this case, that word is Employment. The deconstruction is quite banal and uninteresting until one realizes The Court wants to give Employment different meanings based on when the word was used. Employment had a different meaning when the Federal Arbitration Act was enacted (then it generally does today); and so (The Court holds), that's the definition (the old definition) that should be applied to this case.

I, on the other hand, believe ALL Terms of Art should be consistent across ALL Laws, except where specifically defined within a law. If you are familiar with programming, I want all Terms of Art to be Global by default and only Local when qualified.

My way is simpler. So, no need to wonder, which way The Supreme Court chose to go (i.e. the opposite)... not that this is a new decision or methodology. But it does explain (yet again) why The Laws of the Land are so twisted and convoluted.

Bringing this section back to Same Sex Marriage (so, you know I'm closing this idea up). If we adopt this Variable Word Meaning Methodology, then for each and every Marriage Law, one can argue that Marriage was defined (at the time it was made) as a union between a man and a woman; and this new interpretation of Marriage (between one Consenting Adult and another) only applies to new laws.

Of course, that's not the way The Same Sex Marriage decision went. So, even the policy of having Local Terms of Art is not Global.

The above (Local v. Global) is the subject of Ginsburg's Concurring Opinion. But she doesn't say much: only that whenever Local Terms of Art are presented in a such a way that one believes that the writers expected the term to evolve over time, such Local Terms of Art should be interpreted Globally. Thus, Terms of Art such as Community Standards will vary over time to match ever evolving real world Community Standards; whereas, words like Employment will not.

Um, I don't think words like believe and expect provide much clarity. I very much want a law to be self-contained within its own text. I have no desire to look at the Historical Record to divine what a law means. Because if that is the case, the law isn't written very well and is destined for ambiguity.
...and as will fluctuate in unforeseen ways over the passage of time.
I think Ginsburg is more right than The Court in this regard. But in truth, she does not go far enough. Still, I don't think it is fair to disagree with an opinion (for scoring purposes: GOOD: Yes) just because a Justice failed to Cross a 'T'... especially in cases where they are closer to The Ideal than the pack. Thus, one will note that despite my complaints, I "agree" with both opinions.

Judging the Judges

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