I feel like a lot of people here would do well to try and understand the role of the Supreme Court, instead of treating it like a second version of Congress.
I'm old enough to remember when I could grudgingly accept that there was some wisdom in decisions I disagreed with, even if perhaps not enough to sway me. But I could see something argued intelligently.
This is just nakedly partisan stuff going on. I think viewing it through that lens - "we're going to do what we want because it fits our politics" - makes the most sense.
Highly disagree. All of the recent decisions make perfect legal sense, this coming from the son of a Constitutional attorney who has described to me the rulings, reasons behind them, precedents, etc.. And he's a pro-choice, anti-gun Democrat. He still agrees with the legal decisions. I read the rulings myself too and they make total sense given what I've learned over decades of listening to him.
They're pretty much at the point of flat out lying about things, like the prayer case. Sotomayor, in her dissent, included actual photographs of the coach huddling/praying with the whole team, which is quite coercive behavior. It wasn't a 'quiet prayer'.
>> included actual photographs of the coach huddling/praying with the whole team, which is quite coercive behavior
The photo on the bottom right was from before the coach was asked to stop giving post-game talks that included prayer, an order he complied with. It is not the behavior at question in the court case, so absolutely irrelevant to the matter at hand. I think Sotomayor should have included a date on the photo to make this clear.
Photo on the top right is of the coach being joined in prayer only by members of the opposing team, so if he was coercing the players on his own team, is was quite ineffective. It was a silent prayer, so yes, quiet.
Photo on the left is the coach being joined in prayer by members of the public, not team members, so also not good evidence of coercion. Also a silent prayer, so yes, quiet.
I think the dissenting opinion on this one makes a lot of sense. Even so, making legal sense doesn't mean they are not biased, seeing as the court decides which cases to rule on, and which ones to ignore.
You can doubt all you want, I read the rules, concurrences, and dissents on most SC decisions. The media doesn't really report the facts on them so I prefer to get them right from the source.
Which is ironic since FDR most of the Court decisions were nakedly partisan in the other direction, massively expanding the power and scope of the federal government well beyond would should be constitutionally allowable
The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent).
Now all that technical debt is coming back to kick our ass.
This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
Reminder: decisions like Roe v. Wade (and many others in the era before this court) weren't passed by "the left" in a political sense. For example: five of the seven-justice majority in Roe were Republican appointees.
Roe v. Wade was decided in 1971. That's not too soon after the great realignment from the election of 1964. Some of those Republican appointments like Brennan and Stewart happened well before the realignment. And even then, the author of the opinion was written by Blackmun who was appointed by Nixon. Nixon, the guy who brought us the EPA and many other things the modern Republican party likes to hate. Meanwhile one of the dissents to Roe was written by White who was appointed by JFK.
The parties of 1971 were both very different compared to today. You can't assume that someone active in the party in 1956 (Brennan) holds the same values as what's talked about on OAN today.
> Congress can fix everything that’s happened in the last few weeks via proper laws.
Can it?
In principle, sure, anything can happen.
In practice, given how it's not possible to pass any legislation without a filibuster-proof majority?
As others have commented in this and related threads, this is a win for industry precisely because congress CAN'T do anything in practice, given the reakpolitk of how congress actually "works" today.
I wish folks would stop saying "well, it should just go back to the spec, problem solved". This isn't code. This is the convoluted and complex world of political reality, where, unfortunately, might does often mean right. And more often than not, addressing the root cause isn't even possible, much less practical.
If anything, it's the current supreme court that is taking a binary view of legal interpretation and have "fixed the glitch". Glitches which in reality are patches which have been added organically over time to address changes to the underlying OS, new and unheard of use cases, changing specs and requirements, etc.
Unfortunately, a full rewrite often requires systemic overhall and reboot (something I would hope people are averse to doing in practice)
This is very much the opposite of calvinaball. The rules are in the constitution and that hasn't changed in quite a while.
EDIT: RE: no right to poop(sic) in the constitution
It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.
That rule has been there since the beginning even if you don't acknowledge it.
EDIT: It didn't need to be acknowledged because there wasn't a strong push to disarm the population until fairly recently.
EDIT2: It looks to me like they only really go back to just after the civil war, largely to keep African Americans from carrying firearms. The first attempt by the Federal Government to ban them was in the mid 20th century which was exactly what I expected.
EDIT3: James Madison tried and failed to pass the legislation (presumably because it was unpopular), at the state level (not federal level) and it didn't prevent people from owning guns just carrying them in public.
But isn't it strange that it was there in the beginning and no one acknowledged it for about two centuries?
EDIT for your edit: Huh? When I was a kid in Texas way back in the 90's, it was illegal to carry a gun period. You could take them out hunting or to the range or whatnot, but carrying a gun was illegal. The first concealed handgun law was 1995 if memory serves. Carry bans go back to the colonial era.
> It's a list of things the government may not do, not a list of things you may do.
And yet, they saw fit to include the Ninth Amendment, so some nincompoop wouldn't go "there's no right to privacy!"
> I would imagine the court would rule a law against that would violate the right to life.
The wording is "nor shall any state deprive any person of life, liberty, or property, without due process of law"; what happens if pooping is made a capital crime?
Why is banning abortion, marijuana, and whatnot not a similar violation of the "liberty" part of the same clause?
(and what's with this edit-to-reply thing you've got going?)
In this new climate, it will take more than laws. Permanence will require constitutional amendments (which is actually how most things get rooted at the state level, the state constitutions change pretty regularly).
Exactly this. And by putting this off, we've avoided the hard work to get the laws we deserve. After all, if the courts can just wave a wand and make something a `right`, who cares who you vote for or if you even vote at all?
I think the temporary pain will be worth it in the long run as we do the hard work to pass the laws the majority agrees will improve the environment, human rights, and so on.
It's abundantly clear from the Dobbs majority opinion they will not accept a Roe statue from Congress, that they would overturn it on 10th amendment grounds. It's not an express power Congress has, thus it's strictly up to states. Since they also stated in Dobbs they'd use rational basis scrutiny, the lowest scrutiny possible, when judging state laws on abortion restrictions, I expect they will accept state laws that:
* define moment of conception as murder
* fetus as citizen in fact, meaning out of state abortions are also subject to murder charges
* high burden of proof on women, low burden of proof for the state, that a miscarriage rather than abortion occurred
* hold abortion-is-legal states to article 4, section 1 "full faith and credit", i.e. civil fines and extradition for persons fleeing judgements in abortion-is-not-legal states
* hold companies paying for abortion procedures and travel as party to a crime
The Court is lost for a generation, short of expanding the Court. There is no chance 3/4 of the states will ratify a constitutional amendment on this issue. And there's a lot more litigation to come.
And should it come to the Court, I expect they will set aside Griswold, Lawrence, Obergefell using the same logic - it's not a federal power. How they could possible not reverse Loving, I'm not sure, except that likely no state is as yet backward enough to try and making interracial marriage illegal once again.
I think there is merit in the argument that we've been asking the Court to be expedient, while then not doing the dirty work of putting these rights in constitutional amendments. Instead we're kicking the can down the road, but then we are also avoiding a lot of public contention arguing about it - for good and probably not for good to some degree. But look at the polling. Most Americans now disapprove of the judiciary nearly as much as Congress. With all three branches of government at historic low approval, it is very damaging to representative democracy that this has happened, not least of which is that an unpopularly elected president put these three justices on the Court who lied under oath that these cases are "settled law", and yet just deeply unsettled one of them.
By the standards of the Soviet Union, both US political parties are extremely far right; by the standards of Pharaonic Egypt, they're incomprehensibly far left. Whose standards for center are you using? The objective standard? Are you sure that exists? Are you sure you're not just taking your own personal beliefs about what seems reasonable, declaring the middle of that the objectively correct center, and then getting angry when the real Overton Window isn't centered around that point? People act as if you should just be able to take the leftmost thing imaginable, the rightmost thing imaginable, draw a line between them, find the middle, and then get angry if both US parties are on the same side of that line. But maybe they have poor imaginations. The leftmost thing I can imagine is an insectoid hive-mind; the rightmost thing I can imagine is a rapidly expanding cloud of profit-maximizing nanobots. Are we sure that a line drawn exactly midway between those two things lands on Joe Biden? What if it lands on anarcho-capitalism? Does that mean every existing human is left-wing?
Taken as a relative claim, it at least could make sense. But relative to what?
Relative to the US? False; both parties usually get about half of the vote, suggesting one is to the right of the median American, and the other to their left. You can probably argue that the Republican Party’s structural advantages cause both parties to be a little to the right of where they’d be without them, or that Americans’ ignorance of party platforms means you can smuggle a few points in that are slightly more extreme than what they’d endorse, but it’s going to be a small effect.
Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary".
Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way.
But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value.
Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.
> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen.
It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else.
You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
It is explicit in the Constitution that people have rights not listed in it. Those unenumerated rights are, by their nature, not listed, but I find it hard to credit the idea that Americans don't have a right to privacy.
> You also ignored my example of 2A
Sure, because everyone does. The number of people arguing bans on personal ownership of nuclear arms are unconstitutional is... small. Even originalist/textualists seem to agree it's by no means absolute.
I don't think this is a winning argument. The fact that one argument - and one thought important enough to enumerate actually explicitly - is frequently ignored doesn't support the idea that another unenumerated one exists, and quite possibly the opposite.
More specifically, most Roe supporters have been ignoring the "bodily autonomy" philosophy all along, and more recently even going directly against it. It would seem that it's no more absolute than you believe 2A to be.
As I wrote elsewhere in this thread:
1. Have you taken to the streets protesting when people, even after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the "bodily autonomy" argument behind Roe is false.
Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
So, how does the government get the authority to take marijuana off the table? How do they get the authority to take any other treatment off the table? And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
This all seems to be the same argument, so why don't I hear very many Roe supporters arguing for the freedoms I referenced above, or at least providing answers to my questions? What's the principled line of philosophy that supports a freedom to abortion without also recognizing a right to medicinal marijuana or passing up a covid-19 show (when either is done under doctor supervision)?
FWIW when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine. The government isn't marching into your house with armed men injecting you with covid vaccines. Making vaccine standards for things like public schools (which you can still choose to homeschool or send to private schools) is not the same as the government forcing you to get a vaccine.
When it comes to marijuana, it can be more difficult to get past Wickard and Heart of Atlanta Motel when it relates to things like commodities sold on near international markets. Abortion services are often way more local of a law, far more difficult to argue interstate commerce.
when it comes to the argument of bodily autonomy in regards to covid vaccinations, you're still free to not get a covid vaccine.
I think you're making it sound more black-and-white than it really was. It's true that they weren't talking about coming into your house and holding you down. But they did try to make it as close to "you can't get a job to earn money to buy food" as they could. Pres Biden did issue an EO saying that anybody doing business with the federal government, and anybody in their supply chain, must ensure that their employees are vaccinated. Given the enormous size of the federal government, this covers a huge proportion of the country. (the courts did throw this out, but not before they'd coerced a lot of people to go against their own conscience)
Further, that's as far as the politicians and regulators were able to go. I seem to recall talk in some locales (NYC?) talking about wanting to implement vaccine passports, with which local businesses would deny entry to unvaccinated people, so you can't even go to the grocery store to buy food.
And, of course, my main point was about what the masses were arguing for. I don't think you could seriously deny that a sizable faction of people were arguing that the government SHOULD do all of the above. And that's exactly what I'm saying: people are claiming to back the idea of "bodily autonomy", but for a whole lot of them, their actions demonstrate that this is much less a fundamental inalienable right than they're willing to admit today.
Bodily autonomy, right? Like, the right to not to get infected by a communicable disease in which there are preventative measures out there?
A pregnant woman the next desk over to you doesn't have any effect on your body. A person infected with covid the next desk over does. You do understand how pregnancy works, right?
I imagine most would agree I have bodily autonomy to move my arms. I can't then swing my arms and beat someone to death, right? Your right to swing your arms ends just where the other man's nose begins.
You have all the right you want to not get vaccinated so long as your action doesn't impact everyone else around you. Feel free to go live in the woods with everyone else who doesn't interact with the rest of society. Nobody is going to come by and say you need to get vaccinated, just that there are a lot of benefits to being a member of society if you choose to do so.
> Roe talks about this in terms of "privacy", saying that a woman in consultation with her doctor has the right to determine what's the best course of treatment; the government doesn't have the authority to take abortion off the table.
Roe also makes it quite clear it's not absolute:
"A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."
> So, how does the government get the authority to take marijuana off the table?
For the same reason as Roe highlights above; that the right to privacy is not absolute. I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
> And how do they have the authority to say that vaccination is the only acceptable course when covid-19 is rampant?
I think you'll find the leftist position on marijuana is fairly similar to the leftist position on abortion, though.
I think that's true directionally, but not quantitatively. I haven't seen riots about marijuana, or claims that SCOTUS is corrupt.
And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy. Admittedly, there may be differences in scale of risk that lead to this difference. But the rhetoric we're hearing today seems to frame abortion rights as an absolute with no room for such finesse. And I think it is on them to explain how to draw that line.
So? "You can only say it's a right if you riot about it" is a weird position to take.
> And although I can't say this about any particular individual, I think that statistically, the left position regarding covid-19 vaccinations seems to be contrary to the "bodily autonomy" philosophy.
I don't know what you think the leftist position is on this, but no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19.
Virtually all states require quite a few vaccinations - measles, mumps, rubella, etc. - in public schools. Once again, Roe doesn't rely on "bodily autonomy", and any such right is very clearly not absolute (as Roe itself makes clear about privacy). My autonomy to swing a knife around ends when it hits your face.
Thought experiment: Do we have a right to poop? Can Congress forbid me from pooping? How would SCOTUS rule on a law banning bowel movements?
> "You can only say it's a right if you riot about it" is a weird position to take.
A month ago, governmental violations of bodily autonomy were ignored, or grumbled about at most. If you want me to believe that this change is qualitatively different, you need to explain that, or else I'm going to put both violations in the same bucket.
> no state nor the Federal government has even hinted at the idea of a universal vaccination requirement for COVID-19
First, regardless of what they've actually tried to do, there has been a lot of talk about how they should. Such talk comes pretty much exclusively from the same group of people who think that overturning Roe is an apocalypse.
Second, they most certainly have tried to force vaccination as much as they could get away with. That wasn't by a law saying "get vaccinated or go to jail". That was a backdoor coercive thing where the gov't tried to say "if you want to do business with the gov't then all your employees must be vaccinated (leading to employees getting fired)", in conjunction with the fact that the government is already so damned big that they can be the 800lb gorilla in purchasing as a backdoor alternative to legislation. And while this was going on, people who I'm very sure support Roe were nodding their heads saying it's the right thing to do. Again, there may be a principled argument for treating this differently. But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
> But I think it's incumbent on the Roe protesters to explain what that principle is, or they appear to be unprincipled hypocrites.
I'll take a stab at one potential explanation.
Pregnancy isn't infectious; you will not get pregnant by sitting next to a pregnant woman on the bus. Rights become more complicated when they impact others.
As well as the “privileges and immunities” clause.
The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.
I agree with your concerns about thrashing. I think that the fact that justices aren't elected politically, together with their typical lengthy tenure, is intended to buffer against that. But as politics becomes more polarized, perhaps the buffer doesn't serve as well anymore.
A core problem IMO is that justices are appointed politically. There's an assumption that politicians and their parties will appoint unbiased justices, presumably out of the goodness of their heart and respect for norms... That assumption looks laughably flawed today.
Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
How can you think it's not blatant politics when they lied about their opinions in congressional hearings only to overturn Roe once they had power. How can you think that is in good faith?
To argue, "oh whoops you didn't _do the work_ to obtain your RIGHTS" is also simply a distraction. The US is founded on the concept of unenumerated rights. Do not be fooled. We had those rights and now we don't thanks to this new court.
Look at it the other way around: if the nominees are being questioned about what their opinions are on specific issues, the Congress has already turned it into a political match. The Congress ought to be trying to probe for their qualifications as a justice, and I don't think that one's opinion on self defense or abortion figure directly into that.
Further, I don't buy that you truly believed the argument behind Roe anyway. I don't know you personally, but it's a good bet that you don't support the philosophy that it described. What Roe said[1] was that a person can make whatever[2] treatment they individual decide (in consultation with their doctor) is most appropriate for their circumstances.
But I'm betting that you don't actually agree with this, as evidenced that you likely haven't pursued other violations of it with such vehemence. So I ask you:
1. Have you taken to the streets protesting when people, after consulting with their doctor, have been forbidden the right to use marijuana medicinally?
2. Do you oppose the authority of the FDA to determine what medications Americans should be allowed to use, such that we should be able to use a pharmaceutical even if the FDA says it's too dangerous, or not effective enough?
3. Have you even argued against the authority of the government to force individuals to take covid-19 vaccinations?
If you answer "no" to any of the above, then I assert that your claims to believe in the argument behind Roe is false.
[1] Believe it or not, I actually support the philosophy of bodily autonomy. But that doesn't change the fact that the actual argument behind Roe was a notably lousy one. This is precisely the point I was trying to make in my original comment: one's opinions about the goodness of something are independent of their judgment about the legality of legislation under the Constitution.
[2] Actually, Roe's text limits itself to just abortions, but it seems clear that such a principle ought to apply to all medical treatments in principle - that's why many of today's protests are framed more broadly as "bodily autonomy".
Being forced to carry to term is a different circumstance. As you say yourself, the text limits the ruling to abortion which even today's court has ruled as a unique circumstance. Women should have this right and not the states. I truly believe that, but my opinions are also a distraction...
The justices lied to congress and were always going to overturn Roe. There's no higher judicial ground here.
You're ignoring the fact that there are several philosophies behind constitutional interpretation, and that the dominant philosophy which you list here ("sole job is to interpret laws through the lens of the Constitution"), also called Originalism, is a recent creation by Scalia.
In the end, they still accept or reject laws, with no accountability whatsoever. The supreme court’s decisions are laws, for all intent and purposes, and have just as much weight as what Congress writes.
The incestuous relationship between the judiciary and the legislative branch in common law systems is very problematic and does not allow true separation of powers. Like so much in our democratic governments, this works as long as most participants behave in good faith, but breaks down when some do not.
The way in which judges are brought to the bench in America and subsequently to SCOTUS is political. While it isn't Congress it isn't as independent as many people previously portrayed it.
I wonder if there’s a change within living memory that has caused that cough Bork cough
Snark aside, there’s a reasonable case to be made that Congress has been increasingly treating the judiciary as a super-legislature. Far easier to avoid the work of compromise etc. when you can punt it to the USSC. Whether that’s pure laziness or something structural based on a reduction of overall party power is up for discussion.
As far as I can tell, the nonsense with Court appointments began back in the 80s, with the campaign against Reagan's nominee Robert Bork. Since then there's been a gradually ramping escalation of hostility from both sides. The GOP had to pay back the DEMs for the Bork thing, the DEMs try to smear Thomas, vetting of nominees is held up, then entirely withheld until the President leaves office, and so forth.
The politicization of the Court is a completely bipartisan affair going back 4 decades at least.
We might even say it goes back 8 decades, to FDR's threats to pack the court (see "a switch in time saves nine").
It’s not as if Bork was first. Haynsworth and Carswell were rejected by democrats for political reasons (leading to Blackmun being confirmed). Abe Fortas was rejected as Chief Justice by republicans.
Bork’s appointment problems stem from Reagan’s essentially rewarding him for obstructing impeachment of Nixon.
I’ve never understood why the Democrats are painted as the bad guys interfering in a non-partisan appointment of Bork. Nominating Bork was an insane act.
Absolutely correct. There is a process for writing laws. There is a process for amending the constitution. But instead of building a broad coalition to go and do these things they would rather roll the dice with the judiciary. And when they lose try to change the judiciary. Completely wrong headed. We need to get our legislature working. We also need people to realize that living in a democracy means that you don’t always get your way.
Yet somehow we also managed to appoint SC judges without the senate stalling nominations to prevent the president from being able to appoint them.
Let's not pretend that the current situation represents anything like "normal", and further, that we don't all recognize that bad-faith actions by the Republican party are responsible.
> That was before the Senate hijacked the normal nomination process in 2016.
Yes, it was. What's your point?
Parent poster claimed that a non-political Supreme Court isn't possible, and in reality, the Supreme Court has been essentially completely non-political for all but about 22 years of its existence
Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used.
Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply.
We've been destroying our own government with crap like this for the last 20 years.
Textualism is just one of many excuses to rule the way you want to, as it leaves an immense amount of leeway to interpret.
A textualist reading of the First Amendment would permit the President to infringe free speech/religion/press etc. rights, as it says "Congress", and the "no law" bit would texutally forbid things like banning human sacrifice in religious ceremonies.
Textualists always find an out when they need one.
Do you have a better suggestion that’s less partisan and less prone to abuse?
Humans will always bring bias, but I can’t think of anything better than “interpret as it was plainly written and would have been understood by the people who wrote it at the time”.
Interpreting how it would have been understood at the time is quite subjective; how do we interpret how the Founding Fathers would've considered semi-automatic rifles or Facebook to fall in First/Second Amendment jurisprudence, or how far you can push the General Welfare Clause? The Founding Fathers themselves often disagreed on such things.
> Do you have a better suggestion that’s less partisan and less prone to abuse?
I'm of the opinion that textualism, in actual practice, is a highly partisan and heavily abused concept intended to be a thin veil over "I rule the way I want". I prefer the concept of a living Constitution; per Jefferson:
> I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Did you actually read the constitution end to end? It's not that big, and if you had you would have see that such things you propose aren't in line with the text
A textualist reading of the First Amendment doesn't permit banning human sacrifice in religious ceremonies.
A textualist reading of the Second Amendment doesn't permit banning of personally owned nuclear arms.
Textualists don't seem too interested in overruling the relevant unconstitutional laws in these cases.
(Yes, I've read it. It's vague - deliberately, I'd argue - in spots, like in defining "general welfare", and some folks like to pretend things like the Ninth Amendment don't exist at all.)
We can't because our system of government is broken. If the courts are going to stick to stricter interpretations of the constitution, the US is more likely to rapidly decline or fall apart completely than to fix its problems via legislation. We have only limped along this far because the courts have been lenient on that since our ~3rd major reformulation of our government (FDR). Our system of government cannot support a modern developed-world (go easy on me, citizens of other OECD states—we're kinda developed, anyway) state, without that leniency. The only hope is that monied interests will step in and force a fix because their money's threatened—we've got issues with 70+% support from the public that can't get any traction in the legislature, so clearly "lots of people want it" isn't enough (see again: our system of government is broken) so we have to hope rich people's interests align with ours, or nothing will be fixed. Given modern stateless capital and that so many rich Americans seem to have been working on a comfortable escape route from the US in the last few years, I'm not optimistic.
I'm hopeful they will visit AUMF at some point and revert back to having the Congress have to explicitly authorize war and also not redefine things as near-war but not war. Deploying troops in active conflicts = war.
on the other hand, there have been confrontations with the judicial branch Supreme Court and others in the past, just not seriously in living memory. I was surprised to find in Wikipedia a discussion of changing the number of judges in the pre-WWII era also ("court packing").
But that's just what it is now, isn't it?
A political entity driven by political goals. With an outsized power to reinterpret laws and rules to suit a certain group's political goals.
It may have started with a certain role, but it is now a political entity. I treat it as such.
That's too complicated for most people. Although it does pain me to see people using their energy so ineffectively.
Protester: "6 unelected officials can't decide what I can do!"
Supreme Court: "That's literally what we just said!"
If Congress punts issues around indefinitely for its own political wheeling and dealing, it still cannot outsource a decision on those issues to other branches of the federal government. Whether thats to the executive branch or the judicial branch. Not hard! Except more of your elected representatives!
If consensus is impossible then that's the reality we live in, the means won't be able to justify the ends, you have to work within the consensus mechanism prescribed on every topic.
But then it’s all very self-contradictory. How are people supposed to have faith in the court when it makes a decision, reaffirms it many times over nearly 50 years, then just changes its mind on a dime?
The judicial branch has a responsibility to itself for self-consistent reasoning, which it has completely abandoned this term.
The court is not supposed to change dramatically with every election, that’s what the legislative branch does. And yet, the court did.
It’s legal of course, the court can do what it wants. But it can (and has) lost approval and legitimacy, which at the end of the day were it’s most valuable currency.
It doesn't change dramatically with EVERY election, it just changed dramatically with the last one due to a lot of judges retiring/dying off at once. Just a generational phenomenon.
SCOTUS leaned liberal (in the sense that liberal justices tend to believe in larger-scope interpretations of Constitution) for a long time, now for the first time in a while they're leaning conservative (the Constitution says what it says and if we want it to say something different Congress should pass an amendment).
Honestly I find myself falling into the more Conservative camp from a judicial perspective. I'm all for gay marriage and a woman's right to choose, but I feel like we used SCOTUS to do an end-run around Congress to get both at a federal level, and from my layperson's reading the constitutional justifications for both feel stretched to me. In the same sense that you can use creative interpretations of the Bible to justify basically anything, you can do similar things with the Constitution. That isn't how the system is supposed to work
It doesn’t matter what camp you fall into, or if you think the courts decisions in the past were “wrong” (though obviously there is no absolute right or wrong interpreting how a 250 year old document interfaces with modern society).
The court as an institution has a responsibility to maintain some sort of consistency if it wants any legitimacy.
How can people make decisions about where and how to live if their fundamental rights are changing year to year (and most recently being taken away)?
You are also not aligned with the current public opinion. The court is at its lowest approval rating ever, and that is before overturning Roe. If the court cannot maintain it’s appearance of legitimacy then it essentially fails as an institution. The court could have chosen to move more slowly, with more restraint, but it didn’t.
The whole idea of the court is to be above public opinion. This is not the first time in history that the court has made sweeping overturns of previous precedent that large swaths of voters disagreed with. It's also not the first time the legitimacy of those rulings has been challenged. Remember Eisenhower sending the 101st Airborne and federalizing the Arkansas National Guard to enforce integration? Or Kennedy doing similar for Alabama? Those actions were enforcement of a controversial SCOTUS ruling against the local public opinion.
And you can say "yeah but racists were the bad guys", but that's not how any of this works, regardless of what narratives we decide to apply to history after the fact. Did the court's lack of perceived legitimacy in Birmingham or Little Rock (among many other places that required less extreme enforcement) cause it to fail as an institution?
The court only fails as an institution when it's decisions are no longer enforced. Last I checked we haven't reached that point yet. And even if we do, worth remembering SCOTUS survived the last civil war intact.
His argument is that Congress should legislate these issues either through proper laws or constitutional amendments. Turns out 9 judges might disagree with the previous set of 9 judges. That disagreement swings both ways and in the absence of proper legislative action will become the law of the land.
It is rare for the Supreme Court to act as a second Congress. When it has, those are the cases that most likely get overruled. Additionally, old cases with poor and antiquated assumptions get overturned (not relevant here, just showing a consistency in what is and can be expected to be reviewed.)
Opposing sides of that court have said the exact same thing about Roe v Wade. Ruth Bader Ginsberg even said "this is pretty weak, going to need Congress here", no different than Justice Alito on the opposite side.
I think your perspective is very common, I think it is disingenuous for different people that should know better to promote that perspective. There is so much the elected representatives and the people can do. This crisis of confidence perspective relies on nobody actually reading these cases.
RBG argued that RvW was decided poorly but that doesn’t mean there isn’t a constitutional right to abortion. There are other sources that could be used for the right than SDP.
Ruth Bader Ginsberg is most certainly not an extreme comparable to Alito, lol.
The Supreme Court has acted as a second Congress for a wide variety of things. This is how miranda rights happened. This is how contraception was legalized. This is how homosexuality was legalized. This is how race integration was legalized. ETC.
Congress better get to work and find a rationale in the articles and a variety of amendments
(As just one, like interstate commerce, will keep it on the chopping block by the same court)
also, currently people need to be challenging laws and the court has to accept those challenges, if there isn’t political will to still challenge those things then the cases will never happen
Congress giving the EPA which is staffed by domain experts the ability to decide how much pollution is acceptable is a good thing actually. Why should congressmen be expected to figure that out?
And the court didn't rule that Congress can't do that, the court ruled that Congress didn't do that. Congress can absolutely go write a law giving the EPA that authority, and they should. But if that's not what the law says, then that's not what the EPA can do.
We can't be opposed to police creatively interpreting laws to target minorities and be okay with the EPA creatively interpreting laws to target fossil fuel companies. Just because the latter is in the service of a good cause doesn't make it legal. The ends do not justify the means--down that way lies peril.
Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.
Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.
I'm fully pro-abortion but I have to admit Roe's legal argument was a big stretch at best. Even RBG admitted so. I wish they'd have left it alone but moreso I wish congress made any attempt in 50 years to codify it into law.
No, wrong. Incorrect. Roe v Wade was explicitly a ruling saying that abortion should be broadly allowed, and that no government (neither state nor federal) can regulate it (with caveats). Overturning Roe v Wade has given that power back to the state government and to the federal government.
None of this had anything to do with the federal government regulating it. It was the court saying it was a right not to be infringed upon.
>It was the court saying it was a right not to be infringed upon.
Roe v Wade was ruled on the basis of the 14th amendment due process clause regarding the right to privacy. Anyone who thought this ruling was an iron-clad blanket right to abortion was fooling themselves.
Abortion is not specifically enumerated in the constitution. Just like everything else not in the constitution, it's up to States to make their own laws regarding it.
Dobbs effectively have full control to the states. Unless the federal government can make a commerce clause argument any law they make prohibiting/legalizing abortion will be overturned due to the 10th amendment.
that is a very popular perspective, which reinforces exactly what I said about it being too complicated for people.
Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
Again I call bullshit. There’s no way in a million years these same clowns would apply the same logic to gun control. This is all just motivated reasoning because the court wants to advance a conservative agenda
Good point. It's interesting to think about this outsourcing as a relief valve Congress uses. Feels like a function of the monetary stakes for any decision are too high. Even freshmen congressional reps are too soaked in the financial implications of their own function that they punt their appointed power to the judicial branch.
The SCOTUS is a political battleground where Federal laws can be passed as jurisprudence on the interpretation of the US Constitution, circumventing the legislative process.
Instead of laws on reproductive rights, you had a ruling even detailing the time frames in which abortion was legal.
Instead of legalizing gay marriage, you have a ruling on the federal recognition of licenses issued in individual states.
Instead of a law on lobbying, you have a ruling saying that monetary contributions to campaigns are the free speech of lobbying groups.
Instead of an organic law on weapons permits, you have a ruling saying what kinds of firearm regulations states can pass.
But people can't say this politicization of the SCOTUS is new; back when the hot topic were worker rights, in the early XX century, those were the battles being fought there, to skip Congressional debates:
The Supreme Court does not create laws. Congress does. The Supreme Court interprets those laws, making sure they do not violate the Constitution.
The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written.
Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal.
There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.
Not the OP, but many folks treat the SCOTUS as divided into the red and blue teams, and that they have to vote like whatever party would, vs an independent check on the other two branches of gov't.
