4 ms·

The Supreme Court is, in no sense of the word, ignoring the law. They are interpreting the laws in ways you disagree with and in ways which have historically no

The Supreme Court is, in no sense of the word, ignoring the law. They are interpreting the laws in ways you disagree with and in ways which have historically not been how it was interpreted by the same court, but this is not what ignoring means. Further, the objections of the population have nothing to do with the judicial branch and everything to do with the legislative branch. The courts are not and have never been democratically elected entities.

kepler1 4y ago
I would add that if you are a fan of courts protecting minority rights not subject to the whims and abuses of majorities, you should be grateful that judges are not democratically elected.
- geraneum 4y ago
  The worse case is majority rights being subject to the whims and abuses of a minority. Protecting minorities shouldn’t mean that this is ok! P.S. minorities here could mean anything i.e the mega rich, the “legal” cartels, etc.
  - bilbo0s 4y ago
    How is that "worse"? Abusing any population, is abusing a population. What you just argued is akin to walking into a room full of pregnant high school girls, and declaring one to be the "most" virgin. Besides, the point of the Constitution, is to make it difficult for such things to happen in one direction or another in the political dimension. Which it does pretty well. If you want it to provide protections in the dimension of private economic activity, you can do that, just make an amendment and build a consensus. If this new amendment which you draft to ostensibly protect this "majority", can't build the requisite consensus, then not only is it doubtful that it actually protects a majority, but it also shouldn't be an amendment. That's just democracy since the "majority" you claim to be serving doesn't seem to want the amendment.
- sosull 4y ago
  There are twenty-three states where judges all the way up to the State Supreme Court are elected, rather than being appointed. These include partisan elections, nonpartisan elections, and legislative elections. https://ballotpedia.org/Judicial_selection_in_the_states https://ballotpedia.org/Judicial_selection_in_the_states
sosull 4y ago
Watching this play out (as a non-US person), there’s very little comfort in the distinction between court ignoring the law and the court interpreting the law in a way that is different to historic precedent. The act of interpretation infers that the court is making some kind of justification – backing these changes up by explaining them. Typically this would happen via written decision or at least by stare decisis. But then I saw Samuel Alito commenting just today about how the first amendment does not give Americans, and college students specifically, the right to shout fire in a crowded theatre. The fire in a crowded theatre standard was overturned in Brandenburg v. Ohio (1969). So it’s a little odd to hear that the Schenck interpretation from fifty years earlier is back on the menu. I find myself wondering how that happened. What’s the fine distinction between interpreting the law differently to precedent and ignoring settled law?
- biztos 4y ago
  > The fire in a crowded theatre standard was overturned… According to Wikipedia that standard was explicitly upheld as the example of speech that would be prosecuted. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
  - sosull 4y ago
    Almost, but not quite. Brandenburg created a softer standard than Schenck. The offending speech would have to incite or produce imminent unlawful conduct. But there's an exception for political speech in Brandenburg, which handed people back their right to protest against (and urge people not to comply with) the draft. Alito claimed* that the 'fire in a crowded theatre' standard should be applied to today's college campuses, essentially because he has strong views on how free speech should/shouldn't be regulated at college. It seems to me that he's taking issue specifically with the right of students to engage in political speech and protest. The current court seems to have a particular distaste for case law from the civil rights era. I think he's deciding to bring this exact issue up because he wants to signal to any prospective plaintiff what rulings and precedents the court is likely to focus on in a hypothetical case. But he did that by deliberately misapplying the relevance of a widely-known and easily-misunderstood civil rights-era standard. It feels like he's doing that to taunt his political opponents and signal his preference for an earlier legal regime. My point is that it's fair to question whether the court is actually behaving like a legislature: it's concentrating on case law that specifically affects social policy and it's doing that because it has a majority's muscle. As a foreigner, I can't explain how insane this looks from outside. Judges don't get to just show up to cocktail parties or speeches and single out the precedents they'd prefer to ignore or dispense with. That's a politician's job. * https://lawandcrime.com/supreme-court/justice-alito-takes-direct-aim-at-law-schools-for-abysmal-and-dangerous-free-speech-climate-as-conservative-judges-boycott-his-alma-mater https://lawandcrime.com/supreme-court/justice-alito-takes-di...
harywilke 4y ago
Their stay in Texas's HB-8 was clearly ignoring the law as it stood. The restrictions in HB-8 were unquestionably unconstitutional at the time it arrived at the supreme court. Later the court changed the interpretation of constitution. The majority could not wait to overturn the law, so they ignored it.

kepler1 4y ago

I would add that if you are a fan of courts protecting minority rights not subject to the whims and abuses of majorities, you should be grateful that judges are not democratically elected.

geraneum 4y ago
The worse case is majority rights being subject to the whims and abuses of a minority. Protecting minorities shouldn’t mean that this is ok! P.S. minorities here could mean anything i.e the mega rich, the “legal” cartels, etc.
- bilbo0s 4y ago
  How is that "worse"? Abusing any population, is abusing a population. What you just argued is akin to walking into a room full of pregnant high school girls, and declaring one to be the "most" virgin. Besides, the point of the Constitution, is to make it difficult for such things to happen in one direction or another in the political dimension. Which it does pretty well. If you want it to provide protections in the dimension of private economic activity, you can do that, just make an amendment and build a consensus. If this new amendment which you draft to ostensibly protect this "majority", can't build the requisite consensus, then not only is it doubtful that it actually protects a majority, but it also shouldn't be an amendment. That's just democracy since the "majority" you claim to be serving doesn't seem to want the amendment.
sosull 4y ago
There are twenty-three states where judges all the way up to the State Supreme Court are elected, rather than being appointed. These include partisan elections, nonpartisan elections, and legislative elections. https://ballotpedia.org/Judicial_selection_in_the_states https://ballotpedia.org/Judicial_selection_in_the_states

sosull 4y ago

Watching this play out (as a non-US person), there’s very little comfort in the distinction between court ignoring the law and the court interpreting the law in a way that is different to historic precedent. The act of interpretation infers that the court is making some kind of justification – backing these changes up by explaining them. Typically this would happen via written decision or at least by stare decisis. But then I saw Samuel Alito commenting just today about how the first amendment does not give Americans, and college students specifically, the right to shout fire in a crowded theatre. The fire in a crowded theatre standard was overturned in Brandenburg v. Ohio (1969). So it’s a little odd to hear that the Schenck interpretation from fifty years earlier is back on the menu. I find myself wondering how that happened. What’s the fine distinction between interpreting the law differently to precedent and ignoring settled law?

biztos 4y ago
> The fire in a crowded theatre standard was overturned… According to Wikipedia that standard was explicitly upheld as the example of speech that would be prosecuted. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
- sosull 4y ago
  Almost, but not quite. Brandenburg created a softer standard than Schenck. The offending speech would have to incite or produce imminent unlawful conduct. But there's an exception for political speech in Brandenburg, which handed people back their right to protest against (and urge people not to comply with) the draft. Alito claimed* that the 'fire in a crowded theatre' standard should be applied to today's college campuses, essentially because he has strong views on how free speech should/shouldn't be regulated at college. It seems to me that he's taking issue specifically with the right of students to engage in political speech and protest. The current court seems to have a particular distaste for case law from the civil rights era. I think he's deciding to bring this exact issue up because he wants to signal to any prospective plaintiff what rulings and precedents the court is likely to focus on in a hypothetical case. But he did that by deliberately misapplying the relevance of a widely-known and easily-misunderstood civil rights-era standard. It feels like he's doing that to taunt his political opponents and signal his preference for an earlier legal regime. My point is that it's fair to question whether the court is actually behaving like a legislature: it's concentrating on case law that specifically affects social policy and it's doing that because it has a majority's muscle. As a foreigner, I can't explain how insane this looks from outside. Judges don't get to just show up to cocktail parties or speeches and single out the precedents they'd prefer to ignore or dispense with. That's a politician's job. * https://lawandcrime.com/supreme-court/justice-alito-takes-direct-aim-at-law-schools-for-abysmal-and-dangerous-free-speech-climate-as-conservative-judges-boycott-his-alma-mater https://lawandcrime.com/supreme-court/justice-alito-takes-di...

harywilke 4y ago

Their stay in Texas's HB-8 was clearly ignoring the law as it stood. The restrictions in HB-8 were unquestionably unconstitutional at the time it arrived at the supreme court. Later the court changed the interpretation of constitution. The majority could not wait to overturn the law, so they ignored it.