6 ms·

(headline, ext version) Supreme Court To Lower Courts: Ignore Actual Binding Precedent, Follow Our Unexplained Shadow Docket Vibes Instead

krapp 1y ago
To be fair, the Supreme Court has always operated by vibes. Americans have convinced themselves that SCOTUS has some objective means of interpreting the Constitution according to "originalist" principles, but in essence they guess what the founding fathers would say if summoned via pentagram.
- DangitBobby 1y ago
  It's more like they use motivated reasoning to reach the desired outcome and then backfill the legal rationale as best they can.
  - krapp 1y ago
    Given that ghosts aren't real, it's the same difference.
    - boroboro4 1y ago
      I kinda agree on overall sentiment but it’s important to write it down: we went from 1. Court doing legislation by making decision on important topics, coming with reasoning, mostly building on previous reasoning and gradually changing things 2. Court makes a decision and then just build up a reasoning to support it, sometimes completely off 3. Court makes a decision without reasoning at all I think 1 is reasonable, with 2 being bad and 3 being ugly.
- rayiner 1y ago
  What’s the alternative to guessing what the founding fathers meant? Not even pretending to be bound by what the constitution means? The “living constitution” is an oxymoron. Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. If the duly elected legislature votes to execute accused criminals without trial, then that reflects evolving social standards. The only thing that can overrule that is the dead hand of the founders. You may have a point that originalism doesn’t work. But if you’re correct, then that’s just an argument for curtailing the jurisdiction of the courts.
  - krapp 1y ago
    > Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. By what non-tautological definition? Of course it can, because that's the method the court already uses and has always used. That they cover their personal and political interpretation with the thin veneer of "originalism" doesn't matter - it doesn't really exist, it's a farce. Their decisions are obviously correct when you agree with the outcome and radical legislation from the bench when you don't. We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice.
    - rayiner 1y ago
      >> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. > By what non-tautological definition? The definitions invoked by proponents of "living constitutionalism." The steel-man version of their premise is that judges should interpret the constitution "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, J.). But courts rarely hear cases that involve social standards that have actually evolved. Nobody is challenging outdated adultery laws in the Supreme Court because the social standards have evolved and nobody is getting prosecuted under them. An honest version of "living constitutionalism" would be an extremely narrow principle, reserved for unusual cases where someone has taken action contrary to the accepted social consensus. > We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice. That's just an argument for drastically curtailing the jurisdiction of the courts! We already have two political branches. We don't need a third.
- paulddraper 1y ago
  1. Many Americans and justices have explicitly denied attempting originalist interpretation. 2. New phenomena necessitate extrapolation. But many phenomena — death penalty, abortion, religious observance, public schools, etc — existed when the Constitution was ratified by the people; there’s no need to summon the dead.

krapp 1y ago

To be fair, the Supreme Court has always operated by vibes. Americans have convinced themselves that SCOTUS has some objective means of interpreting the Constitution according to "originalist" principles, but in essence they guess what the founding fathers would say if summoned via pentagram.

DangitBobby 1y ago
It's more like they use motivated reasoning to reach the desired outcome and then backfill the legal rationale as best they can.
- krapp 1y ago
  Given that ghosts aren't real, it's the same difference.
  - boroboro4 1y ago
    I kinda agree on overall sentiment but it’s important to write it down: we went from 1. Court doing legislation by making decision on important topics, coming with reasoning, mostly building on previous reasoning and gradually changing things 2. Court makes a decision and then just build up a reasoning to support it, sometimes completely off 3. Court makes a decision without reasoning at all I think 1 is reasonable, with 2 being bad and 3 being ugly.
rayiner 1y ago
What’s the alternative to guessing what the founding fathers meant? Not even pretending to be bound by what the constitution means? The “living constitution” is an oxymoron. Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. If the duly elected legislature votes to execute accused criminals without trial, then that reflects evolving social standards. The only thing that can overrule that is the dead hand of the founders. You may have a point that originalism doesn’t work. But if you’re correct, then that’s just an argument for curtailing the jurisdiction of the courts.
- krapp 1y ago
  > Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. By what non-tautological definition? Of course it can, because that's the method the court already uses and has always used. That they cover their personal and political interpretation with the thin veneer of "originalism" doesn't matter - it doesn't really exist, it's a farce. Their decisions are obviously correct when you agree with the outcome and radical legislation from the bench when you don't. We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice.
  - rayiner 1y ago
    >> Any interpretive method that purports to “update the constitution with the times” almost by definition cannot be invoked to overturn democratically-legitimated laws and executive actions. > By what non-tautological definition? The definitions invoked by proponents of "living constitutionalism." The steel-man version of their premise is that judges should interpret the constitution "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, J.). But courts rarely hear cases that involve social standards that have actually evolved. Nobody is challenging outdated adultery laws in the Supreme Court because the social standards have evolved and nobody is getting prosecuted under them. An honest version of "living constitutionalism" would be an extremely narrow principle, reserved for unusual cases where someone has taken action contrary to the accepted social consensus. > We need to stop pretending the courts at any level are any less partisan or political than any other branch of the government, and that requires disabusing ourselves of the premise that the Constitution was ever not a "living document" in practice. That's just an argument for drastically curtailing the jurisdiction of the courts! We already have two political branches. We don't need a third.
paulddraper 1y ago
1. Many Americans and justices have explicitly denied attempting originalist interpretation. 2. New phenomena necessitate extrapolation. But many phenomena — death penalty, abortion, religious observance, public schools, etc — existed when the Constitution was ratified by the people; there’s no need to summon the dead.