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I agree that I'm playing kind of fast and loose with the terms. I think you could definitely make an argument that Gorsuch argues the position from a small-c co
by enragedcacti 3y ago
I agree that I'm playing kind of fast and loose with the terms. I think you could definitely make an argument that Gorsuch argues the position from a small-c conservative "rule of law" perspective. In my view the dissent is operating on a very different rule-of-law, one that Gorsuch is happy to dabble in with most other issues:
> Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
It's satisfying to raise issues above the partisan or ideological divide, but if the people that call themselves conservative consistently find ways make the law protect their own while restraining others, as four of them try to do here, then its naive to assume that the issues are really transcendent of that.
- rayiner 3y ago[flagged]
- rsynnott 3y agoDo you mean on this specific issue? I don't think that's surprising at all, because, a decade ago, "we should abide by treaties" was pretty much a consensus idea in the US. The "smart conservative" (I don't particularly buy that there's anyone smart left in the US Republican Party, but YMMV) may keep quiet about it now because Dear Leader has contempt for treaties as a concept, but a decade ago they'd have been publicly pretty horrified by the idea of doing this, and maybe they still are, privately.
- rayiner 3y agoConservatives have always chaffed at treaties because they’re generally hostile to the idea of international law, and they’re skeptical of giving the government in the present the power to bind the flexibility of the government in the future. The general rule is that what one Congress does today, a different Congress can undo tomorrow. And of course there are smart people in the Republican Party. Conservatives make up maybe 10% of lawyers, but over the last 40 years have been rolling back a generation of liberal jurisprudence. For example, they have made the case for textualism so strongly that even liberal judges feel the need to fight on that turf. As a result, the arguments made by liberals a generation ago wouldn’t fly with liberal’s of today’s generation. (Credit also goes to Justice Ginsberg, who despite her left of center bent made an entire career advancing a textualist construction of the 14th amendment.) You saw this with Roe, where the left could offer no real argument that Roe has been decided correctly on the merits to begin with, and resorted instead to emphasizing how long ago it was decided. That happened because over 50 years, conservatives completely chipped away the intellectual underpinning that made Roe defensible in the first place.
- dctoedt 3y ago> For example, they have made the case for textualism so strongly that even liberal judges feel the need to fight on that turf. The "so strongly" part comes solely from what Justice White's Roe v. Wade dissent grumbled was simply "raw judicial power."
- rayiner 3y agoMore or less. But in 1973, exercising “raw judicial power” in dispensing “Justice” was seen differently than it is today. It was quite interesting to see commenters who went to law school post 2000, like Vox’s Ian Millhiser, talk about Dobbs. Their arguments focused on things—stare decisis and public opinion—which couldn’t have justified Roe in the first instance, and couldn’t justify a similarly sweeping decision today. You can state the basic conservative position quite simply, as you have, but it took a lot of work to drag the law away from the notion of judging as an exercise in applied philosophy.
- enragedcacti 3y agoI don't really see that personally, do you have an example of each?