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Whatever your opinion about recent supreme court decisions, this has all underscored what has been true for a long time: Legislating via the judicial branch is

Whatever your opinion about recent supreme court decisions, this has all underscored what has been true for a long time: Legislating via the judicial branch is a bad idea. If it only takes 5 out of 9 people to make laws for 600 million, it only takes one seat change to revert them. (Edit: sorry, 300 - pre-caffeine posting)

DeathArrow 3y ago
But somehow, some people only feel the need to mention it when they don't like the result.
- yanderekko 3y ago
  Yep. Roe vs. Wade was one of the most egregious examples of "legislating from the bench" in the latter 20th century? How many people who would hand-wring over recent SCOTUS decisions oppose Roe on these grounds? Or is this a convenient exception? Griswold? How about Lawrence vs. Texas?
  - mehlmao 3y ago
    Please explain how Henry Wade could enforce the overturned Texas Penal Code statutes without violating the constitutional right to privacy.
    - Aunche 3y ago
      In the right to privacy is so broad that it applies to abortion, it should also apply to self-medicating yourself with narcotics. I'm not saying that decriminalization of drugs is a bad thing, but it's something that obviously shouldn't be decided by the Supreme Court.
      - yanderekko 3y ago
        Yep, and if it applies to abortion, why not third-trimester abortion? Why is that relevant to a privacy interest? Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
        dragonwriter 3y ago
        > Where is the right to privacy in the Constitution, btw? People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.
- ericmay 3y ago
  Right, like how the SCOTUS rejected the Independent State Legislature theory case. Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on.
  - ellisv 3y ago
    How was rejecting ISL was legislating from the bench?
  - JustBreath 3y ago
    > Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on. That's internally consistent. Roe V. Wade was the bench legislation in this case. The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions. Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
    - mywittyname 3y ago
      The constitution doesn't enumerate every right a citizen has. It's a framework for judges (and congress) to determine what laws can and cannot be applied to citizens. The right to abortion was ruled to be protected by the 4th amendment. While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
      - lolinder 3y ago
        Justice Ruth Bader Ginsburg would have disagreed with you there, and I think she's more qualified than you to comment on the function of the Court: > Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision. > Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since. > “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...
gjsman-1000 3y ago
The Judicial branch also has the job of ensuring whatever misguided ideas the Legislative branch may come up with, regardless of what they are (Communications Decency Act, anyone here?) are compliant with the US Constitution and other applicable laws.
devoutsalsa 3y ago
Laws aren't (and can't) be written to cover all current and future use cases. The judicial branch is meant to provide interpretation of the law. Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena. https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch https://www.whitehouse.gov/about-the-white-house/our-governm...
- JustBreath 3y ago
  It's true laws don't account for the future. It's also true that laws can be created and updated by other means and quite often the judicial branch is used as a fast pass extension of the legislative branch. The problem when you do this - especially on questionable legal arguments - is you're essentially setting up the future to have to fight for that right all over again, as we've seen with Roe v. Wade. You can't take a section of the constitution that's about citizenship, infer a right to privacy and then extend that to abortion and not expect that flimsy foundation to be challenged later when the right 5 people happen to be present.
damnesian 3y ago
>Legislating via the judicial branch is a bad idea. If the Citizens United decision didn't teach us that, nothing will.
jl6 3y ago
600 million?
- DeathArrow 3y ago
  Not yet.
kickout 3y ago
The population of the US is roughly ~330M
- sproketboy 3y ago
  [dead]
- PopAlongKid 3y ago
  But don't forget to add corporations to the total, because they are people too according to SCOTUS.
  - ghaff 3y ago
    Corporations have had certain characteristics of people as long as they've existed. Do you want a corporation to be able to enter a contract that isn't with a specific person within the corporation, for example? Corporations also have freedom of the press/freedom of speech. The question in that decision was whether political spending by corporations was part of the free speech right. There's no question more broadly that corporations can put out a press release saying more or less anything (truthful) that they want. This is a really lazy trope whatever you think of the specific decision's result (or the reasoning).
    - mcpackieh 3y ago
      > The question in that decision was whether political spending by corporations was part of the free speech right. There's no question more broadly that corporations can put out a press release saying more or less anything (truthful) that they want. The "political spending" in the case of Citizens United was the production and dissemination of a propaganda film. If the release of a film can be restricted, why not a press release as well? From wikipedia: "Broadcasting the film would have been a violation of the 2002 Bipartisan Campaign Reform Act, which prohibited any corporation, non-profit organization, or labor union from making an "electioneering communication" within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time." If the law bans "electioneering communication", could not an electioneering press release be considered such a banned communication as well?
baron816 3y ago
> 600 million You mean 330 million?
kenjackson 3y ago
I don’t love the decision, but I actually like the process. And I don’t think it is legislating. It is interpreting the law. I’d like term limits on Supreme Court justices. But I think the arguments on both sides of this debate are well thought out. Again I don’t love the decision, but Im OK with it. That said I’d love to see universities stop giving weight to legacies. But the money is just too strong.
- zapataband1 3y ago
  When a neoconservative spends his life petitioning courts for this exact result instead of petitioning anyone in congress... it feels like dirty legislating. Part of it is because our congress is dreadfully inept.
  - zoklet-enjoyer 3y ago
    Congress has more important issues to deal with, such as making it illegal to participate in any programs involving extraterrestrial craft without notifying Congress
  - malnourish 3y ago
    Our federal congress was dragged into ineptitude by a group of people who refuse to legislate or collaborate and would rather confirm judges. Some states are getting legislation done. Minnesota, for example, but same too with states that rapidly passed abortion curbs.
  - NoRelToEmber 3y ago
    He didn't petition congress because congress already legislated on this issue: neither the 14th amendment nor the civil rights act contain exceptions allowing racial discrimination, as long as it's for the right cause (and the courts get to pick which causes are right).
- ellisv 3y ago
  > I don’t love the decision, but I actually like the process. And I don’t think it is legislating. It is interpreting the law. I think this is naive. Roberts is not "calling balls and strikes" despite what he would have you believe. The conservative wing of the court has been willing to adopt a range of interpretations to accommodate their outcome. It's not just setting aside precedent but their increased use of emergency motions (shadow docket) to issue orders without explanation.
londons_explore 3y ago
> Legislating via the judicial branch is a bad idea. Perhaps, if there is no 75% majority of opinions at the supreme court, then the case is just put on hold indefinitely until new clarifying laws are passed?
- solardev 3y ago
  Even if 100% of the court agreed, 9 people can't possibly represent 300 million in any representative way. Even Congress with 535 representatives isn't many. One representative for each 600,000 citizens? When was the last time a thousand Americans agreed on anything, much less half a million? We have one of the worst ratios in the world: https://en.wikipedia.org/wiki/List_of_legislatures_by_number_of_members?wprov=sfla1 https://en.wikipedia.org/wiki/List_of_legislatures_by_number... Edit: And the SC isn't representative anyway. They're appointed by the elites for the benefit of the ruling party, and there's a lot of politicking for those seats. Way too much power and corruption -- for life. The institution itself is a problem.
  - catiopatio 3y ago
    They’re not supposed to be representative. Democracy isn’t perfect, and they’re a check against some of the failings of the system. Frankly, I’m shocked at how upset some of you are over racial discrimination being banned.
    - solardev 3y ago
      There's not really checks and balances when all three branches are in cahoots for the benefit of party over people, primarily won through electoral shenanigans and political games. We literally have a system that continously overrules the will of the majority with a small group of electoral elites, justified using some byzantine algorithm of electoral boundaries. That isn't a democracy, it's a farce. I don't really care about affirmative action much one way or the other. I care about the lack of representation in my so called democracy, and the Supremes are a huge part of that problem.
deleted 3y ago
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andrewprock 3y ago
The judicial branch does not legislate. It interprets existing legislation. In this case they were interpreting the 14th amendment to the US Constitution. Now, they may not have interpreted it the way you or I would, and they may not have interpreted it correctly. But that is what they do.
- matthewdgreen 3y ago
  "Interpret" is just a word. In practice the Court has enormous power in interpreting laws, to the point where it can completely change the policy that laws implement, or strike them altogether. We afford deference to the Court because we believe it follows a constrained legal procedure that makes the word "interpret" meaningful: this involves taking into account precedent and past case law. This approach tends to prevent justices from "interpreting" the law in ways that effectively re-write the law according to their instantaneous political preferences. This court is receiving criticism (and serious loss of public approval [1]) because it has abandoned those constraints, and keeps overturning longstanding precedent in ways that happen to correspond to the stated political preferences of the justices (and the politicians that appointed them.) [1] https://news.gallup.com/poll/4732/supreme-court.aspx https://news.gallup.com/poll/4732/supreme-court.aspx
mjh2539 3y ago
There's only approximately 330 million of us, but yes, your main point is correct. I think that judicial activism has led to a perversion of both the legislative and the judicial branches. Why try to pass legislation that requires broad consent and lots of work when you can just bank on getting your policies through via the judiciary? At the same time, why constrain the judiciary's decisions on something as irrelevant and inflexible as the constitution?
splitstud 3y ago
[dead]
topposter32 3y ago
I only hear complaints from either side when the tables are turned against them. When its in their favor it's just the right thing to do.
- ellisv 3y ago
  Eh. I think we should be complaining about the court all the time. They're not doing a great job.
- JKCalhoun 3y ago
  Perhaps there are pro-slavery people still complaining about the 13th, 14th and 15th amendment?
  - topposter32 3y ago
    Those amendments were made by the legislature.
kjfarm 3y ago
I completely agree with legislation via judicial branch being a bad idea. However, affirmative action isn't legislation. This is judicial review striking down policy (executive branch interpretation and implementation of legislation) https://en.wikipedia.org/wiki/Affirmative_action https://en.wikipedia.org/wiki/Affirmative_action https://www.history.com/topics/us-government-and-politics/affirmative-action https://www.history.com/topics/us-government-and-politics/af...
- alsaaro 3y ago
  Judicial review has upheld the constitutionality of affirmative action policies for 40+ years, what changed is the composition of the Supreme Court and its related willingness to legislate from the bench -- abandoning stare decisis and judicial restraint. We saw this with Roe last year.
  - newacct3 3y ago
    What also changed was the timing of the decision, see O'Connor's "25 years" comment
    - alsaaro 3y ago
      Remember the Supreme Court upheld the legality of affirmative action in 2016 in Fisher v. UT-Austin, and two lower courts upheld the legality of affirmative action in this particular decision. What changed is the make-up of the court; otherwise, apparently affirmative action's unconstitutionality was just realized like a revelation from God and every previous court (federal and Supreme) was wrong. Racial rancor, and racism in general -- anti black racism in particular -- has probably increased since 2003; at least in the public sphere - hopefully this ruling is not a part of that milieu.
  - MichaelZuo 3y ago
    Regardless of whatever the political currents are, it's sensible policy to strike down every pseudo law that doesn't have legislative backing of some kind. If they only selectively struck them down in favor of one group or another, then that would be a different matter.
gotoeleven 3y ago
[flagged]
notlegislating 3y ago
The legislation in question (the Civil Rights Act) prohibits all racial discrimination and it was only previous (in my opinion, misguided) Supreme Court decisions that allowed affirmative action as an exception to that in the first place.
VoodooJuJu 3y ago
The judicial branch does not make laws. You're implying that the judicial branch legislated in this case. They did no such thing. They interpreted existing laws for a particular case, gave their judgement, and applied the existing law. Indeed, legislating via the judicial branch is a bad idea, and so it's a good thing that they do not and are not able to.
- theratattack 3y ago
  > They interpreted existing laws In the dissent at least, the court is very much interpreting court precedent and almost entirely ignoring the law itself
  - polski-g 3y ago
    Liberal SCOTUS opinions talk a lot about morality and societal harm, rarely about the legality of the subject at hand. It is Congress' job to deal with morality and harm, not the judicial branch.
    - eli 3y ago
      Conservatives also care deeply about morality and society, but their opinions often hide behind whatever legal interpretation gives them the policy outcome they desire. Thomas is a textualist when the text is favorable. If it's not, suddenly historical context and the founder's intent becomes crucial.
    - koolba 3y ago
      The Jackson dissent opener is a great example of this: > Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the genera- tions. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Apparently anything that doesn’t further a final state of equality of outcome is inherently racist and it’s the governments job to make that happen.
ralusek 3y ago
They aren't legislating from the bench. Legislating from the bench is the opposite of what is being done here. The role of the judicial is to look at laws and actions and determine if they're legal within the meta framework. That is what was done here.
PM_me_your_math 3y ago
SCOTUS rules on the constitutionality of laws. It doesn't write or institute any laws whatsoever. Now people need to get into college on merit instead of scoring high in the Victim Olympics. That's a great thing for our society.
- malnourish 3y ago
  Did all pre-Affirmative Action college applicants matriculate based on their merits?
kindatrue 3y ago
This also works in the opposite direction though: New York has a right to shelter law because of the judicial branch of government. Basically, a pro bono lawsuit and a judge forced NY to have enough shelter space for all people sleeping in the street. Compare and contrast that to San Francisco (and more broadly California) - where everything can be decided on at the ballot box (like kidney dialysis staffing levels) - which has more people sleeping on the street than all of the UK, and has a wait list of each night of 1000+ for a shelter spot. Everything has advantages and drawbacks.
cvoss 3y ago
Whether to a sufficient degree or not, SCOTUS agrees with you on this point and exercises a strong reluctance to second-guess past generations of itself, especially on statutory (as opposed to constitutional) matters, since it is theoretically easy for Congress to amend its own statutes if ever Congress should disagree with how the Court has interpreted them. Indeed, just today, SCOTUS also released a unanimous opinion protecting a person's religious rights against his employer [1]. Sotomayor and Jackson left an addendum pointing out that this man had asked them to overrule a 50-year precedent in interpreting a law, and they explicitly chose not to do so (though they ruled in his favor in a different, narrower way) precisely for the reason I mentioned about Congress having the opportunity to correct the matter if they so choose. The "liberal" justices usually get the most flack for "legislating from the bench" (although arguments can be made that the "conservative" ones do it too). But here we have the most liberal justice on the Court saying "The Court's respect for Congress's decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals." If I could air a very broad-brush opinion, complaints people have about SCOTUS being a partisan institution these days are best levied against Congress (and litigants) for how they treat the Court, not against the Court for its own behavior. When people express low confidence in the Court, I'm always eager to see them aim their low confidence at Congress instead of (not in addition to) the Court. [1] https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf
- vxNsr 3y ago
  This one is interesting because ever since the Native American case, they’ve been carefully sidestepping this issue every time it came before the court, they’d rule very narrowly usually in favor of religious freedom, but would never establish any precedent, looks like they took the same tack here.
ec109685 3y ago
Beyond that it took Gore losing in Florida by a handful of votes (butterfly ballot?!), Trump carrying the states he did by less than 100k votes and effectively two Supreme Court Justices to die, and one to retire for this to be overturned.

DeathArrow 3y ago

But somehow, some people only feel the need to mention it when they don't like the result.

yanderekko 3y ago
Yep. Roe vs. Wade was one of the most egregious examples of "legislating from the bench" in the latter 20th century? How many people who would hand-wring over recent SCOTUS decisions oppose Roe on these grounds? Or is this a convenient exception? Griswold? How about Lawrence vs. Texas?
- mehlmao 3y ago
  Please explain how Henry Wade could enforce the overturned Texas Penal Code statutes without violating the constitutional right to privacy.
  - Aunche 3y ago
    In the right to privacy is so broad that it applies to abortion, it should also apply to self-medicating yourself with narcotics. I'm not saying that decriminalization of drugs is a bad thing, but it's something that obviously shouldn't be decided by the Supreme Court.
    - yanderekko 3y ago
      Yep, and if it applies to abortion, why not third-trimester abortion? Why is that relevant to a privacy interest? Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
      - dragonwriter 3y ago
        > Where is the right to privacy in the Constitution, btw? People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.
ericmay 3y ago
Right, like how the SCOTUS rejected the Independent State Legislature theory case. Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on.
- ellisv 3y ago
  How was rejecting ISL was legislating from the bench?
- JustBreath 3y ago
  > Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on. That's internally consistent. Roe V. Wade was the bench legislation in this case. The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions. Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
  - mywittyname 3y ago
    The constitution doesn't enumerate every right a citizen has. It's a framework for judges (and congress) to determine what laws can and cannot be applied to citizens. The right to abortion was ruled to be protected by the 4th amendment. While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
    - lolinder 3y ago
      Justice Ruth Bader Ginsburg would have disagreed with you there, and I think she's more qualified than you to comment on the function of the Court: > Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision. > Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since. > “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...

gjsman-1000 3y ago

The Judicial branch also has the job of ensuring whatever misguided ideas the Legislative branch may come up with, regardless of what they are (Communications Decency Act, anyone here?) are compliant with the US Constitution and other applicable laws.

devoutsalsa 3y ago

Laws aren't (and can't) be written to cover all current and future use cases. The judicial branch is meant to provide interpretation of the law. Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena. https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch https://www.whitehouse.gov/about-the-white-house/our-governm...

JustBreath 3y ago
It's true laws don't account for the future. It's also true that laws can be created and updated by other means and quite often the judicial branch is used as a fast pass extension of the legislative branch. The problem when you do this - especially on questionable legal arguments - is you're essentially setting up the future to have to fight for that right all over again, as we've seen with Roe v. Wade. You can't take a section of the constitution that's about citizenship, infer a right to privacy and then extend that to abortion and not expect that flimsy foundation to be challenged later when the right 5 people happen to be present.

damnesian 3y ago

>Legislating via the judicial branch is a bad idea. If the Citizens United decision didn't teach us that, nothing will.

jl6 3y ago

600 million?

DeathArrow 3y ago
Not yet.

kickout 3y ago

The population of the US is roughly ~330M

sproketboy 3y ago
[dead]
PopAlongKid 3y ago
But don't forget to add corporations to the total, because they are people too according to SCOTUS.
- ghaff 3y ago
  Corporations have had certain characteristics of people as long as they've existed. Do you want a corporation to be able to enter a contract that isn't with a specific person within the corporation, for example? Corporations also have freedom of the press/freedom of speech. The question in that decision was whether political spending by corporations was part of the free speech right. There's no question more broadly that corporations can put out a press release saying more or less anything (truthful) that they want. This is a really lazy trope whatever you think of the specific decision's result (or the reasoning).
  - mcpackieh 3y ago
    > The question in that decision was whether political spending by corporations was part of the free speech right. There's no question more broadly that corporations can put out a press release saying more or less anything (truthful) that they want. The "political spending" in the case of Citizens United was the production and dissemination of a propaganda film. If the release of a film can be restricted, why not a press release as well? From wikipedia: "Broadcasting the film would have been a violation of the 2002 Bipartisan Campaign Reform Act, which prohibited any corporation, non-profit organization, or labor union from making an "electioneering communication" within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time." If the law bans "electioneering communication", could not an electioneering press release be considered such a banned communication as well?

baron816 3y ago

> 600 million You mean 330 million?

kenjackson 3y ago

I don’t love the decision, but I actually like the process. And I don’t think it is legislating. It is interpreting the law. I’d like term limits on Supreme Court justices. But I think the arguments on both sides of this debate are well thought out. Again I don’t love the decision, but Im OK with it. That said I’d love to see universities stop giving weight to legacies. But the money is just too strong.

zapataband1 3y ago
When a neoconservative spends his life petitioning courts for this exact result instead of petitioning anyone in congress... it feels like dirty legislating. Part of it is because our congress is dreadfully inept.
- zoklet-enjoyer 3y ago
  Congress has more important issues to deal with, such as making it illegal to participate in any programs involving extraterrestrial craft without notifying Congress
- malnourish 3y ago
  Our federal congress was dragged into ineptitude by a group of people who refuse to legislate or collaborate and would rather confirm judges. Some states are getting legislation done. Minnesota, for example, but same too with states that rapidly passed abortion curbs.
- NoRelToEmber 3y ago
  He didn't petition congress because congress already legislated on this issue: neither the 14th amendment nor the civil rights act contain exceptions allowing racial discrimination, as long as it's for the right cause (and the courts get to pick which causes are right).
ellisv 3y ago
> I don’t love the decision, but I actually like the process. And I don’t think it is legislating. It is interpreting the law. I think this is naive. Roberts is not "calling balls and strikes" despite what he would have you believe. The conservative wing of the court has been willing to adopt a range of interpretations to accommodate their outcome. It's not just setting aside precedent but their increased use of emergency motions (shadow docket) to issue orders without explanation.

londons_explore 3y ago

> Legislating via the judicial branch is a bad idea. Perhaps, if there is no 75% majority of opinions at the supreme court, then the case is just put on hold indefinitely until new clarifying laws are passed?

solardev 3y ago
Even if 100% of the court agreed, 9 people can't possibly represent 300 million in any representative way. Even Congress with 535 representatives isn't many. One representative for each 600,000 citizens? When was the last time a thousand Americans agreed on anything, much less half a million? We have one of the worst ratios in the world: https://en.wikipedia.org/wiki/List_of_legislatures_by_number_of_members?wprov=sfla1 https://en.wikipedia.org/wiki/List_of_legislatures_by_number... Edit: And the SC isn't representative anyway. They're appointed by the elites for the benefit of the ruling party, and there's a lot of politicking for those seats. Way too much power and corruption -- for life. The institution itself is a problem.
- catiopatio 3y ago
  They’re not supposed to be representative. Democracy isn’t perfect, and they’re a check against some of the failings of the system. Frankly, I’m shocked at how upset some of you are over racial discrimination being banned.
  - solardev 3y ago
    There's not really checks and balances when all three branches are in cahoots for the benefit of party over people, primarily won through electoral shenanigans and political games. We literally have a system that continously overrules the will of the majority with a small group of electoral elites, justified using some byzantine algorithm of electoral boundaries. That isn't a democracy, it's a farce. I don't really care about affirmative action much one way or the other. I care about the lack of representation in my so called democracy, and the Supremes are a huge part of that problem.

deleted 3y ago

[deleted]

andrewprock 3y ago

The judicial branch does not legislate. It interprets existing legislation. In this case they were interpreting the 14th amendment to the US Constitution. Now, they may not have interpreted it the way you or I would, and they may not have interpreted it correctly. But that is what they do.

matthewdgreen 3y ago
"Interpret" is just a word. In practice the Court has enormous power in interpreting laws, to the point where it can completely change the policy that laws implement, or strike them altogether. We afford deference to the Court because we believe it follows a constrained legal procedure that makes the word "interpret" meaningful: this involves taking into account precedent and past case law. This approach tends to prevent justices from "interpreting" the law in ways that effectively re-write the law according to their instantaneous political preferences. This court is receiving criticism (and serious loss of public approval [1]) because it has abandoned those constraints, and keeps overturning longstanding precedent in ways that happen to correspond to the stated political preferences of the justices (and the politicians that appointed them.) [1] https://news.gallup.com/poll/4732/supreme-court.aspx https://news.gallup.com/poll/4732/supreme-court.aspx

mjh2539 3y ago

There's only approximately 330 million of us, but yes, your main point is correct. I think that judicial activism has led to a perversion of both the legislative and the judicial branches. Why try to pass legislation that requires broad consent and lots of work when you can just bank on getting your policies through via the judiciary? At the same time, why constrain the judiciary's decisions on something as irrelevant and inflexible as the constitution?

splitstud 3y ago

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topposter32 3y ago

I only hear complaints from either side when the tables are turned against them. When its in their favor it's just the right thing to do.

ellisv 3y ago
Eh. I think we should be complaining about the court all the time. They're not doing a great job.
JKCalhoun 3y ago
Perhaps there are pro-slavery people still complaining about the 13th, 14th and 15th amendment?
- topposter32 3y ago
  Those amendments were made by the legislature.

kjfarm 3y ago

I completely agree with legislation via judicial branch being a bad idea. However, affirmative action isn't legislation. This is judicial review striking down policy (executive branch interpretation and implementation of legislation) https://en.wikipedia.org/wiki/Affirmative_action https://en.wikipedia.org/wiki/Affirmative_action https://www.history.com/topics/us-government-and-politics/affirmative-action https://www.history.com/topics/us-government-and-politics/af...

alsaaro 3y ago
Judicial review has upheld the constitutionality of affirmative action policies for 40+ years, what changed is the composition of the Supreme Court and its related willingness to legislate from the bench -- abandoning stare decisis and judicial restraint. We saw this with Roe last year.
- newacct3 3y ago
  What also changed was the timing of the decision, see O'Connor's "25 years" comment
  - alsaaro 3y ago
    Remember the Supreme Court upheld the legality of affirmative action in 2016 in Fisher v. UT-Austin, and two lower courts upheld the legality of affirmative action in this particular decision. What changed is the make-up of the court; otherwise, apparently affirmative action's unconstitutionality was just realized like a revelation from God and every previous court (federal and Supreme) was wrong. Racial rancor, and racism in general -- anti black racism in particular -- has probably increased since 2003; at least in the public sphere - hopefully this ruling is not a part of that milieu.
- MichaelZuo 3y ago
  Regardless of whatever the political currents are, it's sensible policy to strike down every pseudo law that doesn't have legislative backing of some kind. If they only selectively struck them down in favor of one group or another, then that would be a different matter.

gotoeleven 3y ago

[flagged]

notlegislating 3y ago

The legislation in question (the Civil Rights Act) prohibits all racial discrimination and it was only previous (in my opinion, misguided) Supreme Court decisions that allowed affirmative action as an exception to that in the first place.

VoodooJuJu 3y ago

The judicial branch does not make laws. You're implying that the judicial branch legislated in this case. They did no such thing. They interpreted existing laws for a particular case, gave their judgement, and applied the existing law. Indeed, legislating via the judicial branch is a bad idea, and so it's a good thing that they do not and are not able to.

theratattack 3y ago
> They interpreted existing laws In the dissent at least, the court is very much interpreting court precedent and almost entirely ignoring the law itself
- polski-g 3y ago
  Liberal SCOTUS opinions talk a lot about morality and societal harm, rarely about the legality of the subject at hand. It is Congress' job to deal with morality and harm, not the judicial branch.
  - eli 3y ago
    Conservatives also care deeply about morality and society, but their opinions often hide behind whatever legal interpretation gives them the policy outcome they desire. Thomas is a textualist when the text is favorable. If it's not, suddenly historical context and the founder's intent becomes crucial.
  - koolba 3y ago
    The Jackson dissent opener is a great example of this: > Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the genera- tions. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Apparently anything that doesn’t further a final state of equality of outcome is inherently racist and it’s the governments job to make that happen.

ralusek 3y ago

They aren't legislating from the bench. Legislating from the bench is the opposite of what is being done here. The role of the judicial is to look at laws and actions and determine if they're legal within the meta framework. That is what was done here.

PM_me_your_math 3y ago

SCOTUS rules on the constitutionality of laws. It doesn't write or institute any laws whatsoever. Now people need to get into college on merit instead of scoring high in the Victim Olympics. That's a great thing for our society.

malnourish 3y ago
Did all pre-Affirmative Action college applicants matriculate based on their merits?

kindatrue 3y ago

This also works in the opposite direction though: New York has a right to shelter law because of the judicial branch of government. Basically, a pro bono lawsuit and a judge forced NY to have enough shelter space for all people sleeping in the street. Compare and contrast that to San Francisco (and more broadly California) - where everything can be decided on at the ballot box (like kidney dialysis staffing levels) - which has more people sleeping on the street than all of the UK, and has a wait list of each night of 1000+ for a shelter spot. Everything has advantages and drawbacks.

cvoss 3y ago

Whether to a sufficient degree or not, SCOTUS agrees with you on this point and exercises a strong reluctance to second-guess past generations of itself, especially on statutory (as opposed to constitutional) matters, since it is theoretically easy for Congress to amend its own statutes if ever Congress should disagree with how the Court has interpreted them. Indeed, just today, SCOTUS also released a unanimous opinion protecting a person's religious rights against his employer [1]. Sotomayor and Jackson left an addendum pointing out that this man had asked them to overrule a 50-year precedent in interpreting a law, and they explicitly chose not to do so (though they ruled in his favor in a different, narrower way) precisely for the reason I mentioned about Congress having the opportunity to correct the matter if they so choose. The "liberal" justices usually get the most flack for "legislating from the bench" (although arguments can be made that the "conservative" ones do it too). But here we have the most liberal justice on the Court saying "The Court's respect for Congress's decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals." If I could air a very broad-brush opinion, complaints people have about SCOTUS being a partisan institution these days are best levied against Congress (and litigants) for how they treat the Court, not against the Court for its own behavior. When people express low confidence in the Court, I'm always eager to see them aim their low confidence at Congress instead of (not in addition to) the Court. [1] https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf

vxNsr 3y ago
This one is interesting because ever since the Native American case, they’ve been carefully sidestepping this issue every time it came before the court, they’d rule very narrowly usually in favor of religious freedom, but would never establish any precedent, looks like they took the same tack here.

ec109685 3y ago

Beyond that it took Gore losing in Florida by a handful of votes (butterfly ballot?!), Trump carrying the states he did by less than 100k votes and effectively two Supreme Court Justices to die, and one to retire for this to be overturned.