The Power of the SCOTUS Part VII - The Bedrock of the Republic!

[FadeToBlack&Gold]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's expecting a lot, of course--most people have not read single decision in its entirely, much less the body of decisions that are cited within it. It makes a difference, but the mainstream press and, even more, partisan bloggers, will never go there because they will be ignored. It is so much easier to make simplistic declarations if you haven't done the work.

This is why you hear so much howling about so-called "activist judges". It's much easier for us lay-humans with regular jerbs to read the headline, "Supreme Court Legalizes X" and scream about LEGISLATION FROM THE BENCH!!1!!1

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Interesting article on how the Supreme Court is being viewed more and more as a partisan body and how views swing with major decisions that go one way or another. No real surprise, but just puts some meat on what was already a known trend of most everything in this country being viewed as more partisan, including the Court. Unfortunate, but not surprising.

http://www.washingtonpost.com/news/the-fix/wp/2015/07/29/the-supreme-court-is-viewed-as-more-political-than-ever-before-thats-a-very-bad-thing/

The Court has always been highly partisan. There have also been periods in which it was viewed as highly partisan. There have been cranks who called for SCOTUS justices to be impeached because of rulings -- there were violent threats after almost every important decision in history.

Our educational system used to whitewash American history and pretend that our ideals were also our historical reality, but that has always been balderdash. Our politics, including our courts, has always been rough and tumble and dirty and self-interested. But people like us who were raised on the pablum version of history have a false sense that suddenly all the backbiting and dirty tricks are new, and this is a Fall of Man. Our educators did us a grave disservice -- they were trying to be patriotic, but they wound up teaching us a lot of BS.

The ideals are GOOD. We should strive to meet them. But we should also know that it has always been this way. This is nothing new. Our forefathers were just as full of **** as we are.

 

[FadeToBlack&Gold]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

The Court has always been highly partisan. There have also been periods in which it was viewed as highly partisan. There have been cranks who called for SCOTUS justices to be impeached because of rulings -- there were violent threats after almost every important decision in history.

Including a crank named Franklin Delano Roosevelt (I think he was POTUS or something...), who tried to add six SCOTUS justices so that he could load the court with his own cronies.

 

[St. Clown]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Including a crank named Franklin Delano Roosevelt (I think he was POTUS or something...), who tried to add six SCOTUS justices so that he could load the court with his own cronies.

The Stitch in Time That Saved Nine.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

The Stitch in Time That Saved Nine.

switch

FDR is a perfect example of what I'm talking about. The Court has always been partisan. Justices appointed during the Gilded Age obviously had a Lochner mentality. That's to be expected given the presidential nomination of justices. The popular view of partisanship occurs when the public changes and the Court is (as it was designed to be) "behind." So, FDR faced a Court that reflected an earlier political philosophy. But it was clearly political -- people only think a Court is deciding "on the merits" when the Court agrees with them.

The Court is usually out of step and serves as a brake -- if the new view is a fad then it evaporates before affecting Court membership, if the new view persists eventually the Court "catches up." Obama faces a Court that is still stuck back in the prior economic conservative mindset. If Clinton is elected, her appointments will eventually catch up with the death of supply side. If Bush wins, the Court will continue to be conservative.

The system works, and is annoying as heck.

 

[Bob Gray]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Who wasn't viewing the SC as a partisan body after December 2000?

Interestingly the article indicates people were a lot happier overall with the SC after 2000 than they are now.

One thing that strikes me as different is that the judges seem to be a lot more active in making speeches, etc. than they used to be (or else we just hear a lot more about it than we used to, hard to say) and inevitably they show views and perspectives on issues so they no longer look like this judge that is at least relatively neutral on cases/issues until they come before them. You hear a speech by Ginsburg or Scalia and you probably don't walk away with as much sense of them being a neutral arbiter of the law.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

One thing that strikes me as different is that the judges seem to be a lot more active in making speeches, etc. than they used to be (or else we just hear a lot more about it than we used to, hard to say) and inevitably they show views and perspectives on issues so they no longer look like this judge that is at least relatively neutral on cases/issues until they come before them. You hear a speech by Ginsburg or Scalia and you probably don't walk away with as much sense of them being a neutral arbiter of the law.

That may be, or we may simply be more connected and know about them, now. Didn't one mid-century SCOTUS justice essentially run a presidential exploratory committee from his bench? IINM Brandeis used to be criticized for making speeches and opining on political issues of the day. I think it just comes down to temperament -- there are "invisible" justices like Souter and "drama queens" like Scalia.

 

[FreshFish]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

This is why you hear so much howling about so-called "activist judges".

I thought more of the howling about activist judges came about when they "discovered" rights that are not actually written down in the Constitution? ....how do you "interpret" a document that has absolutely no salient language whatsoever to the actual case at hand?

and some of the howling comes about when a Justice re-writes the actual text of the law and makes it say something different than it originally did. Traditionally only the legislature "should" be able to revise the actual text of a statute.

 

[unofan]

I thought more of the howling about activist judges came about when they "discovered" rights that are not actually written down in the Constitution? ....how do you "interpret" a document that has absolutely no salient language whatsoever to the actual case at hand?

and some of the howling comes about when a Justice re-writes the actual text of the law and makes it say something different than it originally did. Traditionally only the legislature "should" be able to revise the actual text of a statute.

Anyone who uses the phrase "activist judge" in a non-satirical manner is just showing they don't have an actual argument to make about the decision they don't like. I lost some respect for my old boss when she used it once.

 

[FreshFish]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's why the debate should be about the language of the decision itself and prior precedent, not the result.

You hit the nail on the head; much of the current dissatisfaction with the Court comes about when there is no prior precedent whatsoever, and they give the appearance of making stuff up on the fly.

 

[FreshFish]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Anyone who uses the phrase "activist judge" in a non-satirical manner is just showing they don't have an actual argument to make about the decision they don't like.

Set aside that particular term then; you neatly side-stepped the widespread complaint that the Court has "discovered" things that just weren't there before.

Even ardent supporters of Roe v Wade shudder at the concept of "penumbras" and "emanations." that is not judicial reasoning, that is pure sophistry plain and simple: they started with the conclusion they wanted and then worked backward to find a way to justify it post facto. There are plenty of good constitutional arguments that could be made in favor of Roe v Wade; unfortunately none of them actually appeared in the majority opinion. Had that opinion actually incorporated valid constitutional reasoning, I suspect that it would be far less controversial today.


or to set aside the actual written text of a law, rather than send the law back to Congress for revision....that goes beyond "interpretation" into actual legislation from the bench.

 

[burd]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

You hit the nail on the head; much of the current dissatisfaction with the Court comes about when there is no prior precedent whatsoever, and they give the appearance of making stuff up on the fly.

I'm interested in knowing which recent decision you feel had no prior precedent. You may have a point, and I probably have not read it, but I don't think many people have any clue whatsoever whether there is precedent or not, because they don't read the opinion or the cited cases. And if they don't read the opinion or the cited decisions, they have to basis to complain about lack of precedent.

 

[unofan]

I'm interested in knowing which recent decision you feel had no prior precedent. You may have a point, and I probably have not read it, but I don't think many people have any clue whatsoever whether there is precedent or not, because they don't read the opinion or the cited cases. And if they don't read the opinion or the cited decisions, they have to basis to complain about lack of precedent.

I could hazard a guess based on his past postings and rantings in these issues when those decisions came down.

gay marriage on the "made things up" front.
ACA (both of them) on the "rewrote statutes" front.

 

[LynahFan]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Set aside that particular term then; you neatly side-stepped the widespread complaint that the Court has "discovered" things that just weren't there before.

Even ardent supporters of Roe v Wade shudder at the concept of "penumbras" and "emanations." that is not judicial reasoning, that is pure sophistry plain and simple: they started with the conclusion they wanted and then worked backward to find a way to justify it post facto. There are plenty of good constitutional arguments that could be made in favor of Roe v Wade; unfortunately none of them actually appeared in the majority opinion. Had that opinion actually incorporated valid constitutional reasoning, I suspect that it would be far less controversial today.

I admire your optimism, I really do. Hats off to you, sir!

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I could hazard a guess based on his past postings and rantings in these issues when those decisions came down.

gay marriage on the "made things up" front.
ACA (both of them) on the "rewrote statutes" front.

If he's honest he'll admit the "strict constructionist" (cough, cough) justices use the Constitution as their personal ideological toilet paper as well. If the argument is the left is more "activist" in its interpretation of the Constitution than the right, that's just partisan nonsense. If the argument is that modern justices are more adventurous in extending the language of the constitution than their predecessors, that deserves a fair hearing. I'm not at all convinced it is true, but if it is one would kind of expect it. As time passes, more and more of reality is not anticipated by Constitutional language. Unless we want to pass amendments every time we invent airplanes or cell phones or credit default swaps justices are going to have to extend Constitutional language in ways the Founders could not, by definition, have envisioned.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I admire your optimism, I really do. Hats off to you, sir!

I think the majority of Con scholars actually agree with FF that if Roe had been based on 14th amendment equal protection of the woman it would have stood up under the onslaught of fundy fire better than its actual reasoning in the event.

But the controversy would still be there -- the "pregnancy is divine punishment for spreading your legs you whore" types would still be howling just as loudly.

 

[Bob Gray]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I think the majority of Con scholars actually agree with FF that if Roe had been based on 14th amendment equal protection of the woman it would have stood up under the onslaught of fundy fire better than its actual reasoning in the event.

But the controversy would still be there -- the "pregnancy is divine punishment for spreading your legs you whore" types would still be howling just as loudly.

Your lack of valuing human life is scary.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Your lack of valuing human life is scary.

Your glorification of your personal arbitrary moral code as a universal measuring stick is inane.

 

[Bob Gray]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Your glorification of your personal arbitrary moral code as a universal measuring stick is inane.

Clueless, as usual.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Clueless, as usual.

Fatuous, as usual.