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The POV you express is quite common but it's mistaken in that it assumes the role of the courts is to "fix" things, when it is not. Their role is to apply the l

The POV you express is quite common but it's mistaken in that it assumes the role of the courts is to "fix" things, when it is not. Their role is to apply the law as written consistently. While the word "fairly" is often used in place of "consistently", that can lead to confusion because some people mistake the word "fairness" in this context as meaning "morally fair" judicial outcomes. While "moral fairness" does sometimes happen as a result of applying the law consistently, it's not the primary goal or purpose of courts. When things in society are happening that are unfair or otherwise wrong, blaming the courts is like blaming the CPU instead of the programmer. In the US, the "programmer" is congress (the legislative branch). They write the code. The courts in this analogy are the CPU. Their job is to run the code as written correctly and consistently. If the outcomes aren't satisfactory, it's either a bug, missing feature or unhandled exception in the code. The Supreme Court's primary job is to fix system bugs at the micro-code and kernel levels, stuff like scope violations, etc, when the system runs correct code improperly. It's very rare for the issue behind "bad or unexpected outcomes" to be due to the micro-code or kernel but it can happen. Those rare times are when you call the Supremes. When the Supremes pass on accepting a case without comment, it's like rejecting a bug report, often due to it being a bug in the application-level code. In those cases passing is like responding "Not our Bug." Other times they are basically saying the issue is due to a program using system-level APIs in undefined ways. From their perspective, the system responding to ill-defined or undefined instructions with unexpected or inconsistent results is actually correct, so they respond with "Won't Fix (GiGO)". No one wants the CPU making up how to correctly respond to undefined instructions on its own. This is why the phrase "Courts don't make they law, they apply the law" is such a mantra. In this case, congress hasn't yet written any code designed to directly address this use case. If we want to "fix" things we need to get the feature approved and on the legislative backlog to be addressed in a future sprint.

riwsky 3y ago
This idealism ignores decades of the Supreme Court acting as a shadow legislature on topics as broad as environmental protections and sexual freedom. Roe v Wade, and decades later Dobbs vs Jackson Women’s Health Organization, are not matters of microcode.
- simiones 3y ago
  That's only because Congress refuses to legislate. Congress could pass a law that says women have the right to an abortion up to X weeks with Y exceptions (or don't or whatever Congress determines is the will of the people), and Roe v Wade or Dobbs would become irrelevant. Even if the SC somehow found that would be unconstitutional, Congress even has the power to enact an amendment to the Constitution.
  - riwsky 3y ago
    Sure, but that doesn’t fix the problem with mrandish’s argument. People assume the Court’s role is to fix things because from like 1950–2016, it fixed things: the Court’s political outlook was much closer to the average American’s than Congress’ was, and its macro-decisions served to nudge the law towards popular opinion.
    - mrandish 3y ago
      I was trying to communicate how the legal system was generally intended to function. You are quite correct that historically it has not always lived up these aspirations. The tendency in certain eras for SCOTUS to creatively go beyond its charter and "color outside the lines" is part of the reason there's confusion about how the court was intended to function. Although, the popular media also bears a good share of the blame for constantly assessing court actions on moral outcomes instead of judicial process. I also acknowledge the exact boundary of the court's proper scope has always been a philosophical gray area over which reasonable people can disagree. However, I think most judicial observers today would agree that some courts in prior eras definitely exceeded those proper bounds, even if they don't agree among themselves on exactly how much and when. While there are still those who believe the excessive judicial activism of the past was proper, I think today that viewpoint is a small minority. I suspect that's because even those who agree directionally with certain historical precedents established through such activism understand that the judicial creativity that's wonderful when the court leans your way becomes terrible when the winds inevitably blow the other way. Hence my analogy about CPUs and how few people think it's a good design approach to "fix" poorly written code or even programs doing things we no longer agree with at the CPU level. The most predictable, reliable and sustainable long-term design approach is for CPUs to consistently run the code as written and for misbehaving code to be fixed at the program level. I think this remains the most proper design intention despite some CPUs of the past being purposefully "creative" to achieve what some may believe were more desirable outcomes than just sticking to the code as written.
xenadu02 3y ago
Indeed Congress could do much much more to make legal proceedings "morally fair". They could greatly expand the bench (aka have more judges) so cases get heard faster. They could create entirely new levels of legal proceedings by expanding "small claims" or invent other forms of legal review that are less formal with simpler discovery rules. They could greatly expand the basis for appeals and insert more levels of review into the existing process, rather than just trial -> appellate -> SCOTUS. The fact that the current congress is dysfunctional is a political problem the courts can't fix.
- JumpCrisscross 3y ago
  > could greatly expand the bench (aka have more judges) so cases get heard faster For what it's worth, we have 62 judicial vacancies with 25 nominees pending [1]. Bugging your Senator about this from time to time isn't a bad idea, since most electeds are convinced their voters don't care about judges. [1] https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies https://www.uscourts.gov/judges-judgeships/judicial-vacancie...
- simiones 3y ago
  That's not the point the poster above was making. They were saying that, if Congress passed a morally unfair law (say, Congress passed a law requiring all transactions in the USA of any kind to pay a 30% commission to Apple Inc.), it's not the job of the courts to fix this moral unfairness. Just like if you write `rm -rf . /`, it's not the job of the CPU to prevent the OS from deleting your entire file system. The courts, including the Supreme Court, are supposed to apply the law as written. If people are unhappy with the law, they need to take that up with Congress, not the court system.
  - xenadu02 3y ago
    That is what I was saying. If Congress wanted courts to be more "morally fair" they could decide what that means and remodel the courts to apply that new standard. And I think we both agree a great many things are issues Congress should resolve by changes to the law. I find it unfortunate that the vast majority of arguments (for or against) in these kinds of cases are just ad-hoc complaints about what the poster wants because it would be more convenient for them. There is very little reasoning from principles going on. The much larger question is: should companies be able to be rewarded for creating a market? That covers everything from retail stores to game consoles and cell phones. Millions of businesses pay commissions every single day to someone else for access to the other company's customers. Some people say they aren't doing anything of value, they are just getting in the middle... but if they hadn't done anything at all there would be no market and no customers to sell to. It takes a ton of work to build a business, find customers, keep those customers happy, and get those customers to enter an ongoing payment relationship the customer trusts enough to continue making purchases. And come back to keep buying into the ecosystem every X years. My personal opinion is that has a value greater than $0 that so many people seem to be arguing here.

riwsky 3y ago

This idealism ignores decades of the Supreme Court acting as a shadow legislature on topics as broad as environmental protections and sexual freedom. Roe v Wade, and decades later Dobbs vs Jackson Women’s Health Organization, are not matters of microcode.

simiones 3y ago
That's only because Congress refuses to legislate. Congress could pass a law that says women have the right to an abortion up to X weeks with Y exceptions (or don't or whatever Congress determines is the will of the people), and Roe v Wade or Dobbs would become irrelevant. Even if the SC somehow found that would be unconstitutional, Congress even has the power to enact an amendment to the Constitution.
- riwsky 3y ago
  Sure, but that doesn’t fix the problem with mrandish’s argument. People assume the Court’s role is to fix things because from like 1950–2016, it fixed things: the Court’s political outlook was much closer to the average American’s than Congress’ was, and its macro-decisions served to nudge the law towards popular opinion.
  - mrandish 3y ago
    I was trying to communicate how the legal system was generally intended to function. You are quite correct that historically it has not always lived up these aspirations. The tendency in certain eras for SCOTUS to creatively go beyond its charter and "color outside the lines" is part of the reason there's confusion about how the court was intended to function. Although, the popular media also bears a good share of the blame for constantly assessing court actions on moral outcomes instead of judicial process. I also acknowledge the exact boundary of the court's proper scope has always been a philosophical gray area over which reasonable people can disagree. However, I think most judicial observers today would agree that some courts in prior eras definitely exceeded those proper bounds, even if they don't agree among themselves on exactly how much and when. While there are still those who believe the excessive judicial activism of the past was proper, I think today that viewpoint is a small minority. I suspect that's because even those who agree directionally with certain historical precedents established through such activism understand that the judicial creativity that's wonderful when the court leans your way becomes terrible when the winds inevitably blow the other way. Hence my analogy about CPUs and how few people think it's a good design approach to "fix" poorly written code or even programs doing things we no longer agree with at the CPU level. The most predictable, reliable and sustainable long-term design approach is for CPUs to consistently run the code as written and for misbehaving code to be fixed at the program level. I think this remains the most proper design intention despite some CPUs of the past being purposefully "creative" to achieve what some may believe were more desirable outcomes than just sticking to the code as written.

xenadu02 3y ago

Indeed Congress could do much much more to make legal proceedings "morally fair". They could greatly expand the bench (aka have more judges) so cases get heard faster. They could create entirely new levels of legal proceedings by expanding "small claims" or invent other forms of legal review that are less formal with simpler discovery rules. They could greatly expand the basis for appeals and insert more levels of review into the existing process, rather than just trial -> appellate -> SCOTUS. The fact that the current congress is dysfunctional is a political problem the courts can't fix.

JumpCrisscross 3y ago
> could greatly expand the bench (aka have more judges) so cases get heard faster For what it's worth, we have 62 judicial vacancies with 25 nominees pending [1]. Bugging your Senator about this from time to time isn't a bad idea, since most electeds are convinced their voters don't care about judges. [1] https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies https://www.uscourts.gov/judges-judgeships/judicial-vacancie...
simiones 3y ago
That's not the point the poster above was making. They were saying that, if Congress passed a morally unfair law (say, Congress passed a law requiring all transactions in the USA of any kind to pay a 30% commission to Apple Inc.), it's not the job of the courts to fix this moral unfairness. Just like if you write `rm -rf . /`, it's not the job of the CPU to prevent the OS from deleting your entire file system. The courts, including the Supreme Court, are supposed to apply the law as written. If people are unhappy with the law, they need to take that up with Congress, not the court system.
- xenadu02 3y ago
  That is what I was saying. If Congress wanted courts to be more "morally fair" they could decide what that means and remodel the courts to apply that new standard. And I think we both agree a great many things are issues Congress should resolve by changes to the law. I find it unfortunate that the vast majority of arguments (for or against) in these kinds of cases are just ad-hoc complaints about what the poster wants because it would be more convenient for them. There is very little reasoning from principles going on. The much larger question is: should companies be able to be rewarded for creating a market? That covers everything from retail stores to game consoles and cell phones. Millions of businesses pay commissions every single day to someone else for access to the other company's customers. Some people say they aren't doing anything of value, they are just getting in the middle... but if they hadn't done anything at all there would be no market and no customers to sell to. It takes a ton of work to build a business, find customers, keep those customers happy, and get those customers to enter an ongoing payment relationship the customer trusts enough to continue making purchases. And come back to keep buying into the ecosystem every X years. My personal opinion is that has a value greater than $0 that so many people seem to be arguing here.