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It's probably worth noting that "someone who has litigated Chevron cases" and presumably will litigate again has a real bias to look supportive of the supreme c

It's probably worth noting that "someone who has litigated Chevron cases" and presumably will litigate again has a real bias to look supportive of the supreme court (or any judge who could decide his cases). For the rest of us, whether you agree with the outcome of decision or not, it overturns a 40 year old precedent which is: * old enough that several congresses have had a chance to clarify any older laws and have made new laws with it on the books * not so old that it's obviously from a different era and doesn't make sense today * and always icky from a stare decisis perspective fwiw, from a HN perspective, I'm mostly interested in how the SC works as a process with politics aside.

rayiner 2y ago
It’s also fair to point out that someone who doesn’t litigate administrative law cases probably isn’t qualified to offer an opinion on an interpretive practice in administrative law. But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overruled/ https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010. In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.
- skhunted 2y ago
  The court is clearly going in the direction of activism in the sense of abandoning major precedents that have been around for many decades. Abortion, fair share union dues, Chevron, Citizens United, gutting the Voting Rights Act (thousands of polling stations have been shut down in recent years), and this week effectively legalizing bribery of government officials. The combination of these and other precedents is ushering in a new era of intensifying regulatory capture and with the people effectively losing power. The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.
  - lolinder 2y ago
    Did you look at the table linked by OP? What you're describing is definitely the meme that's been going around, but how much of the sense that this court is more activist than the last few is just the amplification of social media? OP's table pretty clearly shows that overturning well-established precedent is just what the Supreme Court does. Looking at the rulings in that table, the main difference that I see between this court and previous courts is that this is the first time that a conservative court has thrown caution to the wind and started overturning what they see as bad precedent. Typically conservative justices have held themselves to a standard that liberal justices did not, and the Trump era definitely ushered in a set of judges that were done with that double standard. I'm willing to have a conversation about the merits of the individual rulings (there are some I disagree with!), but that's a separate question from whether this court is doing something that hasn't already been the norm for a century or longer.
    - skhunted 2y ago
      My comment had nothing to do with wether or not the Court is being more or less activist. It was about the consequences of some key rulings.
  - rayiner 2y ago
    > Abortion A case ultimately rooted in the legal theory or “emanations from penumbras” in the Constitution. > fair share union dues Forcing government employees to pay dues to a private organization they disagree with politically. > Chevron Overturning an earlier case that had ruled in favor of an oil company. > Citizens United Held that making a political movie about Hilary Clinton was free speech. > gutting the Voting Rights Act Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula. > this week effectively legalizing bribery of government officials Overturned a conviction for accepting bribes in connection with an official act, where the jury was instructed that it was irrelevant whether the defendant had corrupt intent at the time of the official act. I don’t know what historians will say about the current Supreme Court. But historians (and journalists) are feelers (in the Meyers Briggs sense), not thinkers. They think in terms of human stories and impacts on people, rather than logical systems. Who cares what feelers think about legal precedents?
- guntars 2y ago
  See my (now buried) comment on cumulative years of precedent overturned using the same source: https://news.ycombinator.com/item?id=40838536 https://news.ycombinator.com/item?id=40838536 I think we can both agree that the count of precedents overturned is important, but so is the time something has been established law, as it affects more decisions made by the individuals and the legislature.
- jhp123 2y ago
  in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.
  - rayiner 2y ago
    There must be a justification, but the bar isn’t as high as you’re making it out to be. https://www.law.cornell.edu/wex/stare_decisis https://www.law.cornell.edu/wex/stare_decisis > Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U.S. at 828. "[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.'" Id. at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.'"
    - jhp123 2y ago
      I'm sure he'd join you in minimizing the importance of precedent today but my comment was a direct quote of Alito

rayiner 2y ago

It’s also fair to point out that someone who doesn’t litigate administrative law cases probably isn’t qualified to offer an opinion on an interpretive practice in administrative law. But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overruled/ https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010. In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.

skhunted 2y ago
The court is clearly going in the direction of activism in the sense of abandoning major precedents that have been around for many decades. Abortion, fair share union dues, Chevron, Citizens United, gutting the Voting Rights Act (thousands of polling stations have been shut down in recent years), and this week effectively legalizing bribery of government officials. The combination of these and other precedents is ushering in a new era of intensifying regulatory capture and with the people effectively losing power. The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.
- lolinder 2y ago
  Did you look at the table linked by OP? What you're describing is definitely the meme that's been going around, but how much of the sense that this court is more activist than the last few is just the amplification of social media? OP's table pretty clearly shows that overturning well-established precedent is just what the Supreme Court does. Looking at the rulings in that table, the main difference that I see between this court and previous courts is that this is the first time that a conservative court has thrown caution to the wind and started overturning what they see as bad precedent. Typically conservative justices have held themselves to a standard that liberal justices did not, and the Trump era definitely ushered in a set of judges that were done with that double standard. I'm willing to have a conversation about the merits of the individual rulings (there are some I disagree with!), but that's a separate question from whether this court is doing something that hasn't already been the norm for a century or longer.
  - skhunted 2y ago
    My comment had nothing to do with wether or not the Court is being more or less activist. It was about the consequences of some key rulings.
- rayiner 2y ago
  > Abortion A case ultimately rooted in the legal theory or “emanations from penumbras” in the Constitution. > fair share union dues Forcing government employees to pay dues to a private organization they disagree with politically. > Chevron Overturning an earlier case that had ruled in favor of an oil company. > Citizens United Held that making a political movie about Hilary Clinton was free speech. > gutting the Voting Rights Act Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula. > this week effectively legalizing bribery of government officials Overturned a conviction for accepting bribes in connection with an official act, where the jury was instructed that it was irrelevant whether the defendant had corrupt intent at the time of the official act. I don’t know what historians will say about the current Supreme Court. But historians (and journalists) are feelers (in the Meyers Briggs sense), not thinkers. They think in terms of human stories and impacts on people, rather than logical systems. Who cares what feelers think about legal precedents?
guntars 2y ago
See my (now buried) comment on cumulative years of precedent overturned using the same source: https://news.ycombinator.com/item?id=40838536 https://news.ycombinator.com/item?id=40838536 I think we can both agree that the count of precedents overturned is important, but so is the time something has been established law, as it affects more decisions made by the individuals and the legislature.
jhp123 2y ago
in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.
- rayiner 2y ago
  There must be a justification, but the bar isn’t as high as you’re making it out to be. https://www.law.cornell.edu/wex/stare_decisis https://www.law.cornell.edu/wex/stare_decisis > Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U.S. at 828. "[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.'" Id. at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.'"
  - jhp123 2y ago
    I'm sure he'd join you in minimizing the importance of precedent today but my comment was a direct quote of Alito