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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 d

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.
  - riwsky 3y ago
    How the system was intended to function is only relevant to the mistakenness of the popular conception of its ethical obligations insofar as that conception does (or should) rely on beliefs about that founding intent. Generally, it does not: it's moral intuition—and when that intuition has lined up so well with the realpolitiks for most of our lifetimes, I strain to see the argument it should, either.

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.
- riwsky 3y ago
  How the system was intended to function is only relevant to the mistakenness of the popular conception of its ethical obligations insofar as that conception does (or should) rely on beliefs about that founding intent. Generally, it does not: it's moral intuition—and when that intuition has lined up so well with the realpolitiks for most of our lifetimes, I strain to see the argument it should, either.