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I find this very remarkable about American legal system. The supreme court could have technically showed some bleeding heart by not showing judicial restraint.

I find this very remarkable about American legal system. The supreme court could have technically showed some bleeding heart by not showing judicial restraint. Instead they just did their job. Americans must thank this judicial culture.

milesvp 8y ago
Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisions as local as possible. Courts handle exceptional circumstances, and it’s important they not rule too broadly, else there can be huge overarching unintended side effects of their ruling. The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.
- KorematsuFred 8y ago
  That is excellent analogy. This then boils down to globalism vs fractal localism.
- xxpor 8y ago
  >The courts aren’t there to set law, that is for the legislature I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one. Case law is just as much part of the law as statutes are. This is the fundamental difference between common law systems and civil law systems. https://en.wikipedia.org/wiki/Common_law#Common_law_legal_systems_as_opposed_to_civil_law_legal_systems https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
  - pvg 8y ago
    It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.
    - dragonwriter 8y ago
      > It's not really a 'meme' It is, in fact, a self-replicating unit of behavior. (It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
      - kortilla 8y ago
        That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.
        sjy 8y ago
        This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).
        wpasc 8y ago
        I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!
        aeorgnoieang 8y ago
        If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.
        dragonwriter 8y ago
        > That’s like claiming any knowledge is a meme. No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
  - sjy 8y ago
    These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).
  - KorematsuFred 8y ago
    It is not a meme. It is the very definition of American courts. Brits dont even have a constitution and have a very different system from that of USA. Other than appearance there is no similarity between British and American courts. I remember a famous case where a British judge refused to punish a Muslim man who use to beat his wife claiming, that is how the man is cultured and beating wife is part of his religion. Such a disaster is unlikely to happen in USA.
    - wallace_f 8y ago
      Underneath the parent comment -- which linked a Wikipedia article with some educational material on case law vs statutory law vs common law etc -- there are a number of comments like this which just show users didn't even bother to read a Wikipedia page, but were happy to tell the world how it works in their own minds. Maybe there is some important lesson about people here. I think today people think of themselves as above those of the past who took intellectual shortcuts to understanding the world and came to preposterous models of reality. But then you can see just how intellectually lazy people are still today, yet at the same time how hard it is to convince them.
      - xxpor 8y ago
        I find it incredibly ironic that the person's user name is KorematsuFred given the context.
  - rplst8 8y ago
    Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
    - xxpor 8y ago
      >Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices. District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
    - dragonwriter 8y ago
      > Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
    - gammateam 8y ago
      The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves. Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic. When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency. The courts can also overrule itself in a future court case. (The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
- craftyguy 8y ago
  > The courts aren’t there to set law, that is for the legislature. They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
  - cryptonector 8y ago
    And then there's common law, which is essentially judge-made law. Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
    - posterboy 8y ago
      The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.
      - cryptonector 8y ago
        Ha, good point. It's worth knowing the difference between law and statute...
        posterboy 8y ago
        "I say I say I say: Statutory law is not law". This kind of negativity is questionable.
- DoctorOetker 8y ago
  A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected. For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
  - TFortunato 8y ago
    On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases. EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all. It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
- ataturk 8y ago
  Yeah, I mean it's not like we would want the incorporation of the 8th Amendment to have any additional implications such as the incorporation of the 4th, 2nd or 1st Amendments, right? I mean, where would that take us? The only Amendment still holding up is the 3rd and that's only because quartering soldiers in people's homes in order to control their lives hasn't become fashionable in modern times. But just wait, they're somehow going to cross the line on that again, too. Every single right that people fought and died to obtain is either under attack or already dead. So while it's great that the SC made this ruling, don't think for a second that it means the pendulum is swinging back towards freedom because it's not.
sathackr 8y ago
It's a welcome check on the Executive and Legislative branches. Anyone can become President, and anyone can become a lawmaker. It takes a lifetime of respect to earn a seat on the Supreme Court bench.
- sgc 8y ago
  It has in general, but not lately.
- jecxjo 8y ago
  Respect is not quite the word I'd use. Yes you have to put in your time, but politics play just as much a role in SCOTUS appointments as any other branch. The major difference is that the appointees do not pander to the public for votes, rather they pander to those we have voted into office.
  - sathackr 8y ago
    Even including recent events, I think the actual judicial track record of the Supreme Court proves its legitimacy. These people put huge amounts of research, thought, and reasoning into their decision. Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
    - pmoriarty 8y ago
      "These people put huge amounts of research, thought, and reasoning into their decision." What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
- jeromegv 8y ago
  I'm sure lots of women would not agree with your last statement.
- thatoneuser 8y ago
ErikVandeWater 8y ago
> showed some bleeding heart As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?
- chidg 8y ago
  It seems likely the person you are replying to has english as a non-first language and may be using this phrase incorrectly.
  - yesenadam 8y ago
    Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.
    - AlexB138 8y ago
      > Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense. That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
      - yesenadam 8y ago
        Well, you disagree with me, and call my opinion 'bias', i.e. 'biased'. (Leaving aside the gratuitous 'laughably'.) You presumably see yourself as 'not biased'. (Nice work if you can get it.) I think 'bias' used like that doesn't make a lot of sense. Every person speaking their mind can be called 'biased' by someone who doesn't agree, but that doesn't really get us anywhere, does it. It's primarily a way of disguising (to yourself) that you're saying "You're wrong and I'm right". Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)
JohnFen 8y ago
Now if we could only do something about the police stealing stuff from people who aren't even accused of breaking the law.
hannasanarion 8y ago
And why is it a good thing that they didn't rule on the other merits of the case, such as clarifying that a confiscation of a $45000 car is "excessive" for a crime with a maximum fine of $1200?
- TheGRS 8y ago
  Probably because what constitutes excessive is going to be a fairly arbitrary and subjective amount at any point in time and depending on the person in the case. I don't think that's what's really the meat of the argument. The 8th amendment not applying to states however is a huge deal as its a pretty clear violation of the 14th amendment and its broader intentions.
  - deleted 8y ago
    [deleted]
- sathackr 8y ago
  IANAL, which should be evident, but.. The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance. The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied. Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court. But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
- cryptonector 8y ago
  It's standard operating procedure for the court. They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided. In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.
mikekchar 8y ago
Not American here, but would SCotUS even be able to rule on anything outside of their narrow window? My impression was that they only rule on constitutional issues. I guess that's why they vacated the rest. When it gets to that level, is there any oversight to ensure that they don't go beyond the boundaries of their mandate?
- tfigment 8y ago
  I think that norms are what are keep them most things in check and to preserve legitimacy they rule mostly on constitutional issues but I'm sure they can review any ruling in lower courts that they like or even overturn old rulings as they see fit. They cannot write new law as that is explicitly congress but they could take cases and interpret them broadly or narrowly to skew the desired result. If they tried to write laws themselves presumably they would be ignored or removed either via impeachment or by physical force. In a situation where parties are adhering to the rules then either congress can pass new law to clarify intent (and probably fight again) or pass an amendment to constitution or states could call constitutional convention to overrule an undesired court ruling.
- da_chicken 8y ago
  The SCotUS has extremely broad leeway in it's decision making. Any court case can rise to the SCotUS, but the SCotUS also has the power to deny hearing any case it wants. The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction." However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].) So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts. For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS. There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3]. [0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_Supreme_Court_of_the_United_States https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-cases10.htm https://money.howstuffworks.com/10-overturned-supreme-court-...
RyanShook 8y ago
The amount of restraint shown depends largely on the issue and justices. One of the most infamous overreaches was the Dred Scott case where the court went way beyond the issue at hand and essentially decided the case was invalid because of the defendant’s race.

milesvp 8y ago

Yes actually. The courts aren’t there to set law, that is for the legislature. Also by limiting their ruling to the narrowest ruling they can, they keep decisions as local as possible. Courts handle exceptional circumstances, and it’s important they not rule too broadly, else there can be huge overarching unintended side effects of their ruling. The parallel in programming would be some god class that handles every exception, vs handling exceptions as close to the exception as possible. Generally global exception handling is a bad idea, you want to handle exceptions as close to the context as possible since that is where the most pertinent information in the system lives, and also has the least impact on the rest of the system if the exception can be resolved at a local level.

KorematsuFred 8y ago
That is excellent analogy. This then boils down to globalism vs fractal localism.
xxpor 8y ago
>The courts aren’t there to set law, that is for the legislature I hate this meme. This is explicitly not true in the American legal system, as well as similar systems evolved from the British one. Case law is just as much part of the law as statutes are. This is the fundamental difference between common law systems and civil law systems. https://en.wikipedia.org/wiki/Common_law#Common_law_legal_systems_as_opposed_to_civil_law_legal_systems https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...
- pvg 8y ago
  It's not really a 'meme', it just uses a shorthand for 'statutory law' which is what most people think of when they they see 'law'.
  - dragonwriter 8y ago
    > It's not really a 'meme' It is, in fact, a self-replicating unit of behavior. (It's also true in one sense, which is one of the bases of it's relative reproductive fitness as a meme.)
    - kortilla 8y ago
      That’s like claiming any knowledge is a meme. Kinda destroys the meaning if it just means any time someone repeats a fact.
      - sjy 8y ago
        This is the original meaning given by Dawkins in The Selfish Gene. The word ‘meme’ is more than a repeated fact – first, it doesn’t have to be a fact, and second, it suggests that our culture is the result of evolution in an environment where memes are selected for reproductive fitness (‘virality’).
        wpasc 8y ago
        I've read the Selfish Gene and loved it, but I had NO idea that meme originated from that book. I must have skimmed that paragraph. Thank you for this!
        aeorgnoieang 8y ago
        If I'm remembering the book correctly, it's discussed at some length in a later chapter; maybe the last chapter.
      - dragonwriter 8y ago
        > That’s like claiming any knowledge is a meme. No, beliefs—whether true and justified (hence, knowledge) or otherwise—are not memes. Behaviors—including ones by which beliefs (including knowledge) are transmitted—are memes. If memes are viewed as analogous to genes (which is the whole point of the concept), beliefs (again, including knowledge) are among the features analogous to aspects of phenotype.
- sjy 8y ago
  These days there is so much statutory law in the developed world that this distinction is fading away. Yes, it’s technically possible for a common law court to grant a new form of relief that isn’t derived from legislation or binding precedent (eg. the Mabo decision in Australia), but these days the common law is really a ‘god of the gaps,’ and if the courts aren’t satisfied with the common law remedies available 200 years ago or created later by statute, they have very little power to create new remedies. Of course, written laws are always open to interpretation in both the common and civil law system, and that’s what happened in this case (the written law being the U.S. Constitution).
- KorematsuFred 8y ago
  It is not a meme. It is the very definition of American courts. Brits dont even have a constitution and have a very different system from that of USA. Other than appearance there is no similarity between British and American courts. I remember a famous case where a British judge refused to punish a Muslim man who use to beat his wife claiming, that is how the man is cultured and beating wife is part of his religion. Such a disaster is unlikely to happen in USA.
  - wallace_f 8y ago
    Underneath the parent comment -- which linked a Wikipedia article with some educational material on case law vs statutory law vs common law etc -- there are a number of comments like this which just show users didn't even bother to read a Wikipedia page, but were happy to tell the world how it works in their own minds. Maybe there is some important lesson about people here. I think today people think of themselves as above those of the past who took intellectual shortcuts to understanding the world and came to preposterous models of reality. But then you can see just how intellectually lazy people are still today, yet at the same time how hard it is to convince them.
    - xxpor 8y ago
      I find it incredibly ironic that the person's user name is KorematsuFred given the context.
- rplst8 8y ago
  Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". There are some exceptions to this where federal laws have likely overreached the framers intentions, and then federal courts had to rule on a matter pertaining to that law.
  - xxpor 8y ago
    >Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Common law (state and local courts) can create "laws". Uh, no. This is just completely incorrect. Things like reasonable suspicion are standards created by federal courts that have the force of law (see Terry v Ohio). The logic is based on the 4th amendment, but the standard was created by the justices. District courts can't really create laws since it's not binding on any other court. Appeals courts do all the time, in fact one of the easiest ways to get something to the supreme court is to have a split between the circuits because that creates different law in different parts of the country.
  - dragonwriter 8y ago
    > Isn't the difference here that Federal courts can't create law, only rule on constitutional matters. Federal courts aren't limited to ruling on Constitutional issues—cases that are purely state law can be in federal court jurisdiction, e.g., because of diversity of citizenship of the parties, and any federal law issue, not just an issue of the Constitution, also qualifies a case for federal court; and they create law just like any other courts (only with broader geographical impact, because it's federal law.)
  - gammateam 8y ago
    The federal courts can create law solely because overruling them is nigh impossible. The Supreme Court exists to rule on constitutional matters, but it is merely the final arbiter and uses that to its advantage based on case law they made for themselves. Overruling the Supreme Court requires a constitutional amendment and this won't happen, and the court rarely does something untenable or an impossible outcome for a functioning society as it wants compliance. It tries to match a partial collective conscious understanding of a topic. When it does act as fill-in legislature, Congress/Legislatures are capable of simply changing the law it ruled on, such as repealing the legal framework supporting enforcement agency. The courts can also overrule itself in a future court case. (The Supreme Court exists by the constitution, the other federal courts are created by congress and have a path to the supreme court.)
craftyguy 8y ago
> The courts aren’t there to set law, that is for the legislature. They set the interpretation of the law, which could literally go any which way, and is not reversible without further legislative action to repeal/amend the law. So in a way, they most definitely set law by solidifying its 'meaning'.
- cryptonector 8y ago
  And then there's common law, which is essentially judge-made law. Case law is very much law. Judges are not supposed to invent law from whole cloth, sure, but they are supposed to make law in a very specific and important sense: by interpreting law (including constitutional law) when its meaning isn't clear. The fact that some judges abuse this to set policy does not mean that judges shouldn't make law -- it only means that some judges don't have the right stuff to be judges. But judge-made law is a thing, and a real and legitimate thing. Downvoting this won't make it not so. Please acquaint yourselves with English and American jurisprudence, law, and constitutions.
  - posterboy 8y ago
    The problem is one of semantics. Law is an ambiguous term and commentators have different interpretations--let's appreciate the irony for a second.
    - cryptonector 8y ago
      Ha, good point. It's worth knowing the difference between law and statute...
      - posterboy 8y ago
        "I say I say I say: Statutory law is not law". This kind of negativity is questionable.
DoctorOetker 8y ago
A big difference between programming and law is that the programmers ultimate incentive is independent of the processors incentive. In law and politics there are multiple agents each with their own incentives, so it is extremely important to uniformize the application of the law (in order to be equal before the law). That nearly all systems do provide leeway for the judge (anglosaxon common law emphasizes this and civil law doesnt, so it's more arguing appearances) is not because it is a feature, but because the law is not that exactly specified. One could imagine each precedent by a judge to be accompanied by a democratic consultation, since in a democracy the people are supposed to govern themselves. While this could allow rampant democratic discrimination (both on factors which are recognized discriminative properties: skin tone, religion, ...; but also on factors not yet recognized as discriminative properties), it would also provide a means for proving our voting behaviour to be discriminative in some sense. In this way unintentional discrimination can be highlighted and corrected. For example a constant back and forth switching on some rule such that the black person goes to prison while the white person walks free would constantly choke the system for democratic consultations until the populace collectively decides to let the black person drink from the same fountain as the white person (or whatever). The system should be set up such that whenever rules are applied unequally it slightly chokes the system with another democratic consultation, until humans end up with equality before the law.
- TFortunato 8y ago
  On reading, this sounds a lot to me like "trial by a jury of one's peers", only the response to the system being (choked for democratic consultations / having massive court backups and shortage of jurors) has unfortunately so far been mostly public apathy, and people being pushed into accepting plea deals / waiving their rights for a jury trial in many cases. EDIT: I dont say this to be snarky. On the contrary, the idea of "law's being applied equally" being enforced by citizens exercising their powers democratically, vs. the whims of one judge, is really appealing, and explains a lot of why we supposedly have things like jury trials being a right for all. It's just unfortunate that the reality is, we are trying to do this, but if you look at folks who are actually trying to highlight things like discrimination in the system or "hey, maybe we arent applying these laws equally"...well the response they get for doing that isn't always what one would hope for from an enlightened body of citizens.
ataturk 8y ago
Yeah, I mean it's not like we would want the incorporation of the 8th Amendment to have any additional implications such as the incorporation of the 4th, 2nd or 1st Amendments, right? I mean, where would that take us? The only Amendment still holding up is the 3rd and that's only because quartering soldiers in people's homes in order to control their lives hasn't become fashionable in modern times. But just wait, they're somehow going to cross the line on that again, too. Every single right that people fought and died to obtain is either under attack or already dead. So while it's great that the SC made this ruling, don't think for a second that it means the pendulum is swinging back towards freedom because it's not.

sathackr 8y ago

It's a welcome check on the Executive and Legislative branches. Anyone can become President, and anyone can become a lawmaker. It takes a lifetime of respect to earn a seat on the Supreme Court bench.

sgc 8y ago
It has in general, but not lately.
jecxjo 8y ago
Respect is not quite the word I'd use. Yes you have to put in your time, but politics play just as much a role in SCOTUS appointments as any other branch. The major difference is that the appointees do not pander to the public for votes, rather they pander to those we have voted into office.
- sathackr 8y ago
  Even including recent events, I think the actual judicial track record of the Supreme Court proves its legitimacy. These people put huge amounts of research, thought, and reasoning into their decision. Every single person will have some sort of bias. We are all human. Sometimes the court will 'lean' left, sometimes it will lean right. Over the years it has been an anchor of reason and stability that is very much appreciated by this American.
  - pmoriarty 8y ago
    "These people put huge amounts of research, thought, and reasoning into their decision." What makes you think the judges are the ones who actually do all that research, thought, and reasoning? They all have a staff to do that for them.
jeromegv 8y ago
I'm sure lots of women would not agree with your last statement.
thatoneuser 8y ago

ErikVandeWater 8y ago

> showed some bleeding heart As if the court being overly sentimental would be the only reason to overturn confiscations of property of this kind?

chidg 8y ago
It seems likely the person you are replying to has english as a non-first language and may be using this phrase incorrectly.
- yesenadam 8y ago
  Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense.
  - AlexB138 8y ago
    > Maybe. In Australia, 'bleeding heart' used by people on the right to describe people on the left who act with conscience, ethics, compassion or recommend a course of such acts. It's a term of abuse, because they think such actions and desires must be pretense, as the right doesn't feel those things themselves. (The right has and doesn't want others to have, a position that hardens the heart.) I took the phrase in that sense. That is a laughably bias interpretation. The phrase "bleeding heart" is used as an insult, suggesting the targets lack reason and are completely guided by their feelings. Your descriptions paints those you disagree with as mustache-twirling cartoon villain caricatures and comes off about as genuine as "They hate us for our freedom".
    - yesenadam 8y ago
      Well, you disagree with me, and call my opinion 'bias', i.e. 'biased'. (Leaving aside the gratuitous 'laughably'.) You presumably see yourself as 'not biased'. (Nice work if you can get it.) I think 'bias' used like that doesn't make a lot of sense. Every person speaking their mind can be called 'biased' by someone who doesn't agree, but that doesn't really get us anywhere, does it. It's primarily a way of disguising (to yourself) that you're saying "You're wrong and I'm right". Yes, 'suggesting the targets lack reason', which if they had it, I suppose, would make them more in agreement with the criticizer. (In this neo-con-ruled world people who use the term 'bleeding heart' see themselves as 'realists', i.e. follow the pronouncements of the local economist, think-tank, party-back-room guru etc without much considering the actual effects on people or the world. Money, or votes, is the prize. Everywhere is obsession with 'efficiency' and 'growth'. It's hardly noticed how many people hate their work, or that growth is unsustainable, or what's happening to the planet. We have no idea where we're going but are obsessed with getting there efficiently. But that's rant for another place..)

JohnFen 8y ago

Now if we could only do something about the police stealing stuff from people who aren't even accused of breaking the law.

hannasanarion 8y ago

And why is it a good thing that they didn't rule on the other merits of the case, such as clarifying that a confiscation of a $45000 car is "excessive" for a crime with a maximum fine of $1200?

TheGRS 8y ago
Probably because what constitutes excessive is going to be a fairly arbitrary and subjective amount at any point in time and depending on the person in the case. I don't think that's what's really the meat of the argument. The 8th amendment not applying to states however is a huge deal as its a pretty clear violation of the 14th amendment and its broader intentions.
- deleted 8y ago
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sathackr 8y ago
IANAL, which should be evident, but.. The lower courts already felt the fine was excessive, but declined to rule so because they felt they were not subject to the 8th amendment. The Supreme Court ruled that they were in fact subject to the 8th amendment, and sent the case back to the State court to re-evaluate under the new guidance. The Supreme court generally tries to rule as precisely and efficiently as possible. Since the most prominent question under their jurisdiction was the application of the 8th amendment to the states, they ruled on that issue and remanded for the remainder of the case to be resolved by the lower case with the 8th amendment applied. Now the lower court, which is a perfectly capable entity, will rule on the case, applying the 8th amendment as directed by the Supreme Court. If the lower court then rules the fine was not excessive, that ruling as well would be subject to review by the higher court. But it was not necessary at this time for the Supreme Court to rule on this as the ruling on the 8th amendment will permit the lower court to do it's job and re-evaluate.
cryptonector 8y ago
It's standard operating procedure for the court. They usually make the narrowest possible decisions, only in cases they felt they had to take (usually because of disagreements below, sometimes due to time considerations), and remand to lower courts to work out details left undecided. In this case the holding leaves very little room for the lower courts to make any decision other than that the $45k property or equivalent value must be restored to the plaintiff. I suppose Indiana might want to take the $8800 between the $1200 and the max fine ($10k), but that would invite further pointless expense and embarrassment by having their rulings overturned by Federal courts, so I would bet the plaintiff gets the $45k back. I suppose the plaintiff may want interest too, but there's not enough value in that for them, but the State will surely fight that tooth an nail, especially if the courts decide that all (or many) civil asset forfeiture cases are now to open to being revisited, as the States (or their cities) will be on the hook for enormous amounts of money, and interest on that will be a lot too.

mikekchar 8y ago

Not American here, but would SCotUS even be able to rule on anything outside of their narrow window? My impression was that they only rule on constitutional issues. I guess that's why they vacated the rest. When it gets to that level, is there any oversight to ensure that they don't go beyond the boundaries of their mandate?

tfigment 8y ago
I think that norms are what are keep them most things in check and to preserve legitimacy they rule mostly on constitutional issues but I'm sure they can review any ruling in lower courts that they like or even overturn old rulings as they see fit. They cannot write new law as that is explicitly congress but they could take cases and interpret them broadly or narrowly to skew the desired result. If they tried to write laws themselves presumably they would be ignored or removed either via impeachment or by physical force. In a situation where parties are adhering to the rules then either congress can pass new law to clarify intent (and probably fight again) or pass an amendment to constitution or states could call constitutional convention to overrule an undesired court ruling.
da_chicken 8y ago
The SCotUS has extremely broad leeway in it's decision making. Any court case can rise to the SCotUS, but the SCotUS also has the power to deny hearing any case it wants. The Supreme Court has original jurisdiction (that is, the first court the case must be heard in) in a very narrow set of circumstances defined by the US Constitution (in Article III): "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction." However, the Constitution goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (More here [0].) So, for state courts (which try violations of state or municipal law, which are the vast majority of cases), you would have your original jurisdiction court (civil court, criminal court, etc.). If the case is appealed, it goes to the state appellate court. If that decision is appealed, it goes to the state supreme court. If that decision is appealed, it goes to the SCotUS. Not all states have both a supreme court and a designated appellate court. Some cities also have their own courts for municipal laws (New York and Chicago both do) but they work the same basic way and I believe they appeal to state appellate courts. For federal courts (which try violations of federal law or that occur on federal land or that cross state lines, but also any trial in Washington, D.C., because the federal government regulates that), you start at the district court[1]. Appeals to that cast go to the circuit court[2], and appeals to that go to the SCotUS. There is no appealing a decision by the SCotUS. It would require an act of Congress, Constitutional Amendment, or a completely different trial where the SCotUS reversed it's prior decision. This has happened, most famously in Plessy v. Ferguson (1896) (legalized racial segregation) was overturned by Brown v. Board of Education (1954) [3]. [0]: https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_Supreme_Court_of_the_United_States https://en.wikipedia.org/wiki/Original_jurisdiction_of_the_S... [1]: https://en.wikipedia.org/wiki/United_States_district_court https://en.wikipedia.org/wiki/United_States_district_court [2]: https://en.wikipedia.org/wiki/United_States_circuit_court https://en.wikipedia.org/wiki/United_States_circuit_court [3]: https://money.howstuffworks.com/10-overturned-supreme-court-cases10.htm https://money.howstuffworks.com/10-overturned-supreme-court-...

RyanShook 8y ago

The amount of restraint shown depends largely on the issue and justices. One of the most infamous overreaches was the Dred Scott case where the court went way beyond the issue at hand and essentially decided the case was invalid because of the defendant’s race.