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Are you suggesting that the average person should read Supreme Court decisions? And furthermore, are you implying that there are fundamental mistakes in the rea

by spupe 4y ago

Are you suggesting that the average person should read Supreme Court decisions? And furthermore, are you implying that there are fundamental mistakes in the reasoning of Roe v Wade that emerged just now, 50 years later? Both seem unreasonable suggestions to me. It's akin to saying people should learn programming and read up on code/documentation if they want to have an opinion about Facebook.

nullc 4y ago
> Are you suggesting that the average person should read Supreme Court decisions? The country would be a better place if more people did. Supreme court decisions are phenomenally well written. They usually begin with a clear, short, and accessible statement of the case and the relevant principle(s) before they summarize their decision. I find that they describe the issues surrounding the cases with great compassion for all the major arguments. And the dissents are usually equally informative. Reading decisions has dramatically increased my appreciation of the nuance that goes into the decisions of the court and the operation of our country. Even for cases where I disagreed with the judgement with both before and after reading the decision, I gained a much greater perspective of alternative views. ... and a feeling that even when I strongly believe we're doing the wrong thing that we're trying so hard to do the right thing that eventually we'll get it right somehow. For several years I read at least the beginning of every decision and dissent -- there aren't that many. I stopped only because I became crunched for time, and I'm thankful that your post reminded me of this gap from my life now that I have the time to pick up the practice again.
- spupe 4y ago
  I also find the American Supreme Court decisions to be surprisingly accessible, while in my and other countries there is a lot of obfuscation. That said, I'm not sure I have the same feeling as you reading some of these decisions. Law and its interpretation is obviously a political matter and always will be. For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions, which happens to coincide with the recent introduction of three more conservative judges (one of them illegitimately). It's just futile, in my view, to treat any of these decisions as if the people involved were trying really hard to achieve objective truth, rather than impress their prejudices in the most articulate way.
  - nullc 4y ago
    > one of them illegitimately From googling, I'm guessing you're referring to the fact that Barrett's appointment was a week ahead of the presidential election and months ahead of the end of trump's presidency. Federal appointments down to the last minute of a presidency are lawful, and somewhat late appointments happen frequently. I find the suggestion otherwise in this context particularly amusing, because the fantastic drama over some literally 11th hour appointments-- ones so late they were delivered after the end of the presidency-- is how the supreme court took the power to review laws for constitutionality in https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison . Even lame-duck supreme court nominations used to be fairly common (even though supreme court nominations are not that common themselves) -- that they aren't common more recently is because an unplanned vacancy is far more rare. It's true that Obama failed to make a nomination at the end of his term, but the view that he couldn't or that it would have been improper is just not factually supported by the law or the history of the country, including the history of supreme court nominations. Instead there is a clear political explanation: Given the composition of the senate and the weakness of an outgoing president, Obama would have only been able to get through a compromise nomination. There was high confidence that Hillary would win and that the dems would have greater senate influence, allowing a more politically extreme nominee if it was left to her term. This was a grave political error, one I suspect we'll be suffering from for years to come. (The fact that we had a number of unplanned vacancies of late are also political errors, at least to the extent that you consider the justices political actors.) I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. The fact that some politicians and pundits can't restrain themselves doesn't excuse the rest of us. > you reading some of these decisions [...] to treat any of these decision It's a big step from some to any. No person or process is infallible.
    - spupe 4y ago
      Yes, I was referring to how the nomination was stolen from Obama. The nominee they had in mind was in fact moderate, and in the past Congress had never wielded its power to block a nomination because it was done in the last year of a presidency. The fact that the Republicans pushed their own nomination at the last minute was just adding insult to injury. I think we have to be clear about what is legal and what is legitimate here. It is legal for the Democrats to pack the Court, and there is even precedent for that. They also have congressional majorities that in theory allow for that. However, it would be illegitimate to do so. > I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. A fine and honorable institution which has upheld slavery, segregation, imprisonment camps, and the list goes on. The SCOTUS is not above criticism, and change can only occur if we treat them for what they are, servants of the people.
Amezarak 4y ago
Just to add on to the sibling comment: absolutely yes, they should. SCOTUS opinions are written to be read by educated laymen. It is nothing like reading code - the whole point of the institution is that it's the supreme court of a democratic, self-governed people! The law is supposed to be understood. Justices are experts because of their comprehensive knowledge of case law and precedent and their ability to apply it to a given case, not because the method is beyond the grasp of normal people. You might also be surprised at how, compared to the code analogy, informal and even non-legalistic many opinions are. There's a lot of opinions that read largely like well-informed Internet comments for long stretches until legal citations come back in.
_dain_ 4y ago
>And furthermore, are you implying that there are fundamental mistakes in the reasoning of Roe v Wade that emerged just now, 50 years later? They didn't emerge just now, they were pointed out in scholarly discussions of the case immediately after it was handed down, and throughout the intervening 50 years. It was even criticized by pro-abortion people, they wanted something more soundly reasoned.
- spupe 4y ago
  I would imagine that there is criticism for every decision the Court has ever made. However, this one has been challenged numerous times over these 50 years and stayed in place. Either we believe that law is a purely technical matter and the Court has failed at that job for 50 years, or we believe that politics are far more important and the technical arguments simply follow from that. I find it absurd to believe that you can treat law as some sort of math proof.
  - _dain_ 4y ago
    Yes, every decision has its share of criticism. Roe is unusual in that it rested on such a remarkably flimsy basis (part of which was rejected in Casey). It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.
    - spupe 4y ago
      > It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us. Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.
rayiner 4y ago
Roe has consistently been criticized by even liberal legal scholars: https://www.washingtonexaminer.com/restoring-america/restoring-america/equality-not-elitism/there-is-no-valid-defense-of-roe-thats-why-that-side-resorts-to-threats https://www.washingtonexaminer.com/restoring-america/restori... > Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely. > Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000. “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Roe is the Lochner of liberal jurisprudence. (https://en.wikipedia.org/wiki/Lochner_v._New_York https://en.wikipedia.org/wiki/Lochner_v._New_York). It makes sense only under an extrapolation of the broadly libertarian small-government sentiment behind the Constitution that the left doesn’t believe in. (It was penned by a Nixon appointee, and was reaffirmed in Casey by five Republican appointees.)
vmception 4y ago
Yes, regarding fundamental mistakes, absolutely. The reasoning didnt emerge just now, people just didnt want to talk about anything more nuanced than being “pro-life” or “prochoice” and “dont say the a-word”. If you read the case you’ll realize “hold up, what? I’ve been emotionally led my whole life based on this steamy pile of shaky logic?” You’ll realize that the same outcome could have been created with more durable consensus. Durable meaning acceptable, less divisive, not based on time. But now, a major roadblock to evaluating things this way has crumbled. The primary issues are: - How the multiple unrelated case(s) got to the Supreme Court and were consolidated for Roe v Wade - How the Supreme Court acted as a super legislature creating frameworks and edicts (it does this sometimes but they are guidelines, prongs for likelihood of compliance. In this case they were completely uncircumventable rights and restrictions, the area of Congress), instead of finding a part of the constitution to support it. Its out of character and relies on the difficulty of overruling the Supreme Court. - How Congress has had 50 years or more to do or even just try anything on this topic, but didnt. (Risky for politicians doesnt mean the court can do their job) - The next time the topic was revisited in Casey, the court was relying on the concept of Roe being precedent while then altering that precedent for a modified framework anyway. (The new draft uses that logic to dismantle Casey before dismantling Roe. And it doesnt take an opposite extreme view, it just gets the federal government out of it and returns it to state regulation. If Congress had opined at all, ever, it would have just returned it to Congress’ national laws, but since it never has then there is nothing to supersede state regulation.)

by spupe 4y ago

nullc 4y ago

> Are you suggesting that the average person should read Supreme Court decisions? The country would be a better place if more people did. Supreme court decisions are phenomenally well written. They usually begin with a clear, short, and accessible statement of the case and the relevant principle(s) before they summarize their decision. I find that they describe the issues surrounding the cases with great compassion for all the major arguments. And the dissents are usually equally informative. Reading decisions has dramatically increased my appreciation of the nuance that goes into the decisions of the court and the operation of our country. Even for cases where I disagreed with the judgement with both before and after reading the decision, I gained a much greater perspective of alternative views. ... and a feeling that even when I strongly believe we're doing the wrong thing that we're trying so hard to do the right thing that eventually we'll get it right somehow. For several years I read at least the beginning of every decision and dissent -- there aren't that many. I stopped only because I became crunched for time, and I'm thankful that your post reminded me of this gap from my life now that I have the time to pick up the practice again.

spupe 4y ago
I also find the American Supreme Court decisions to be surprisingly accessible, while in my and other countries there is a lot of obfuscation. That said, I'm not sure I have the same feeling as you reading some of these decisions. Law and its interpretation is obviously a political matter and always will be. For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions, which happens to coincide with the recent introduction of three more conservative judges (one of them illegitimately). It's just futile, in my view, to treat any of these decisions as if the people involved were trying really hard to achieve objective truth, rather than impress their prejudices in the most articulate way.
- nullc 4y ago
  > one of them illegitimately From googling, I'm guessing you're referring to the fact that Barrett's appointment was a week ahead of the presidential election and months ahead of the end of trump's presidency. Federal appointments down to the last minute of a presidency are lawful, and somewhat late appointments happen frequently. I find the suggestion otherwise in this context particularly amusing, because the fantastic drama over some literally 11th hour appointments-- ones so late they were delivered after the end of the presidency-- is how the supreme court took the power to review laws for constitutionality in https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison . Even lame-duck supreme court nominations used to be fairly common (even though supreme court nominations are not that common themselves) -- that they aren't common more recently is because an unplanned vacancy is far more rare. It's true that Obama failed to make a nomination at the end of his term, but the view that he couldn't or that it would have been improper is just not factually supported by the law or the history of the country, including the history of supreme court nominations. Instead there is a clear political explanation: Given the composition of the senate and the weakness of an outgoing president, Obama would have only been able to get through a compromise nomination. There was high confidence that Hillary would win and that the dems would have greater senate influence, allowing a more politically extreme nominee if it was left to her term. This was a grave political error, one I suspect we'll be suffering from for years to come. (The fact that we had a number of unplanned vacancies of late are also political errors, at least to the extent that you consider the justices political actors.) I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. The fact that some politicians and pundits can't restrain themselves doesn't excuse the rest of us. > you reading some of these decisions [...] to treat any of these decision It's a big step from some to any. No person or process is infallible.
  - spupe 4y ago
    Yes, I was referring to how the nomination was stolen from Obama. The nominee they had in mind was in fact moderate, and in the past Congress had never wielded its power to block a nomination because it was done in the last year of a presidency. The fact that the Republicans pushed their own nomination at the last minute was just adding insult to injury. I think we have to be clear about what is legal and what is legitimate here. It is legal for the Democrats to pack the Court, and there is even precedent for that. They also have congressional majorities that in theory allow for that. However, it would be illegitimate to do so. > I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. A fine and honorable institution which has upheld slavery, segregation, imprisonment camps, and the list goes on. The SCOTUS is not above criticism, and change can only occur if we treat them for what they are, servants of the people.

Amezarak 4y ago

Just to add on to the sibling comment: absolutely yes, they should. SCOTUS opinions are written to be read by educated laymen. It is nothing like reading code - the whole point of the institution is that it's the supreme court of a democratic, self-governed people! The law is supposed to be understood. Justices are experts because of their comprehensive knowledge of case law and precedent and their ability to apply it to a given case, not because the method is beyond the grasp of normal people. You might also be surprised at how, compared to the code analogy, informal and even non-legalistic many opinions are. There's a lot of opinions that read largely like well-informed Internet comments for long stretches until legal citations come back in.

_dain_ 4y ago

>And furthermore, are you implying that there are fundamental mistakes in the reasoning of Roe v Wade that emerged just now, 50 years later? They didn't emerge just now, they were pointed out in scholarly discussions of the case immediately after it was handed down, and throughout the intervening 50 years. It was even criticized by pro-abortion people, they wanted something more soundly reasoned.

spupe 4y ago
I would imagine that there is criticism for every decision the Court has ever made. However, this one has been challenged numerous times over these 50 years and stayed in place. Either we believe that law is a purely technical matter and the Court has failed at that job for 50 years, or we believe that politics are far more important and the technical arguments simply follow from that. I find it absurd to believe that you can treat law as some sort of math proof.
- _dain_ 4y ago
  Yes, every decision has its share of criticism. Roe is unusual in that it rested on such a remarkably flimsy basis (part of which was rejected in Casey). It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.
  - spupe 4y ago
    > It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us. Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.

rayiner 4y ago

Roe has consistently been criticized by even liberal legal scholars: https://www.washingtonexaminer.com/restoring-america/restoring-america/equality-not-elitism/there-is-no-valid-defense-of-roe-thats-why-that-side-resorts-to-threats https://www.washingtonexaminer.com/restoring-america/restori... > Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely. > Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000. “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Roe is the Lochner of liberal jurisprudence. (https://en.wikipedia.org/wiki/Lochner_v._New_York https://en.wikipedia.org/wiki/Lochner_v._New_York). It makes sense only under an extrapolation of the broadly libertarian small-government sentiment behind the Constitution that the left doesn’t believe in. (It was penned by a Nixon appointee, and was reaffirmed in Casey by five Republican appointees.)

vmception 4y ago

Yes, regarding fundamental mistakes, absolutely. The reasoning didnt emerge just now, people just didnt want to talk about anything more nuanced than being “pro-life” or “prochoice” and “dont say the a-word”. If you read the case you’ll realize “hold up, what? I’ve been emotionally led my whole life based on this steamy pile of shaky logic?” You’ll realize that the same outcome could have been created with more durable consensus. Durable meaning acceptable, less divisive, not based on time. But now, a major roadblock to evaluating things this way has crumbled. The primary issues are: - How the multiple unrelated case(s) got to the Supreme Court and were consolidated for Roe v Wade - How the Supreme Court acted as a super legislature creating frameworks and edicts (it does this sometimes but they are guidelines, prongs for likelihood of compliance. In this case they were completely uncircumventable rights and restrictions, the area of Congress), instead of finding a part of the constitution to support it. Its out of character and relies on the difficulty of overruling the Supreme Court. - How Congress has had 50 years or more to do or even just try anything on this topic, but didnt. (Risky for politicians doesnt mean the court can do their job) - The next time the topic was revisited in Casey, the court was relying on the concept of Roe being precedent while then altering that precedent for a modified framework anyway. (The new draft uses that logic to dismantle Casey before dismantling Roe. And it doesnt take an opposite extreme view, it just gets the federal government out of it and returns it to state regulation. If Congress had opined at all, ever, it would have just returned it to Congress’ national laws, but since it never has then there is nothing to supersede state regulation.)