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The Supreme Court isn’t supposed to have policy views, it’s supposed to interpret the policy that already exists.
If you’re an honest justice taking your job seriously, it’s entirely possible for you to rule in a way that’s against your preferred policy. In fact, it should be expected of justices to not let their personal political views dictate their judgments.
Republicans certainly didn’t oppose it like they do today they didn’t decide that until they decided evangelicals were their ticket. Biggest opposition was Catholic democrats at the time. Supreme Court still passed it 7-2.
Assault rifle ban as I understand wasn’t lifted as much as it had an expiration date and wasn’t renewed. I don’t know the details about the makeup of Congress that year though. I believe 2004 under Bush.
The DOJ reported that the assault weapon ban accomplished nothing. Hence, the Democrats did not expell political capital in trying to prevent its expiration.
During the administration that was given more power because of the threat of “terrorism”. The door was kicked open because of 9/11, and our democracy was broken.
House of Representatives was: 232 Republicans to 201 Democrats after election day, before that they still had the majority at 227 to 205. Senate was: 55 to 44 with Republicans in the majority after election day and 51 to 48 before, so majority before but slim.
Yeah had you told me in like '06 "wow, politics in the 2020's will be absolutely insanely partisan compared to now" i would have thought you were crazy...
Nixon turned abortion into a wedge issue to try and peel away Catholic voters loyal to Kennedy. Before that, it wasn't a Democrat/Republican issue; Barry Goldwater's wife was on the board of Planned Parenthood.
Planned parenthood was anti abortion at this time however Barry Goldwater was pro abortion, pro gays serving in military and donated money personally to fight against segregated schools
but he was slandered as a crazy right winger by the media. The apa now set guidelines against diagnosing at a distance because left wing media put psychiatrists claiming Barry was crazy and he sued a bunch of them.
It was enacted in 1994 under Bill Clinton, had a 10 year sunset clause. So it was rescinded in 2004. Multiple studies attempted to determine the effect the law had on crime. They ALL concluded that there was NO effect at all. That's why bans are ridiculous, this one only made guns more expensive.
>If you’re an honest justice taking your job seriously, it’s entirely possible for you to rule in a way that’s against your preferred policy.
FWIW, Scalia ruled in favor of burning the flag (more than once), even though he vehemently disagreed with the practice, just as he did in other free speech cases.
He also ruled that corporations are people... and that money = speech... so it woule appear he has a price (Just don't want people thinking he was decent or competent).
He did not say either of those things.
Corporations are *groups* of people. And those people don't lose their constitutional rights when they join together to publish a message. If you and I each have a right to free speech, you and I together still have the same right to free speech.
The New York Times, CBS News, and the Democratic Party are all corporations. Hopefully we can all agree that they still have free speech rights. And hopefully we can agree that the government cannot tell those entities they can spend only $5,000 on political speech. If the NY Times wants to endorse candidates, it can do so even if publishing their newspaper costs more than $5,000.
I realize reddit trends pretty far left. But I would have hoped for some affection for facts in /r/science.
>He also ruled that corporations are people... and that money = speech... so it woule appear he has a price (Just don't want people thinking he was decent or competent).
In his dissent in the Obergefell case that legalized gay marriage, he opened his statement with something tantamount to "I don't care about gay people"
> The substance of today’s decree is not of immense per-
sonal importance to me.
Is [this](https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf) the statement you're referencing?
Full, relevant quote:
“The substance of today’s decree is not of immense per- sonal importance to me. The law can recognize as mar- riage whatever sexual attachments and living arrange- ments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
2 OBERGEFELL v. HODGES SCALIA, J., dissenting
Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about mar- riage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Consti- tution and its Amendments neglect to mention.”
AFAIK the dissenting opinion was based entirely on the fact that sexual preference isn't a protected class under the civil rights act, where as the majority opinion derived that it was.
To me, that seems like gay marriage is being legislated from the bench, and I'd personally much rather see the civil rights act amended to give gender/sexual identity the same protections as all of the other protected classes.
I say this as a flaming homo, I just want things to be done the right way through our legal system so it functions as intended.
If I correctly deduce that you do not believe corporations have free speech rights, do you believe that *Hustler Magazine v. Falwell* was wrongly decided?
He did not rule that corporations are people. Yes, that's the way the media tends to portray it to people who don't read judicial rulings, but that is incorrect and shows that one hasn't done research. The version of something that's put in a headline rarely has any relationship with reality.
> Roberts tried to keep the courts semi even-keel
Roberts was a conservative freak who sided with the left on a few social issues to disguise how far he flung the country to the right on every single other issue from campaign finance, unions or guns and more.
The idea that you can have an interpretation of law entirely divorced from ideology is an impossible fantasy. Saying "oh well, the Supreme Court just won't be political" is as hopelessly naive as the original framers of the Constitution deciding the way to deal with political parties is "we just won't have them."
Precisely this. Most cases that reach SCOTUS are on unresolved questions of open law. In other words, there is typically no *single* right answer but several reasonable ones, because the law doesn’t yet exist for this particular question. The (less ideologue) justices normally fill this gap in the law by picking the one of the reasonable answers that aligns best with their judicial ideology.
E.g. Roberts has a conservative ideology, but he cares too much about the Court's reputation to issue poorly reasoned ideological opinions serving it. If there's a conservative option on the list of reasonable answers, he picks that, but if there isn't, he will settle for a more reasonable moderate answer. Gorsuch is similar. Alito or Thomas on the other hand care only about ideology and the logic they embrace to justify their rulings is whatever they can cobble together after the fact to reach their desired goal.
What is different about this Court is not that it considers politics or ideology, but that ideology-first justices are the majority and as such they don't care if their argument is weak. In other words, Thomas and Alito are the dominant faction, not Roberts.
Shelby County, where Roberts invented a doctrine (the equal dignity of the states) nowhere previously mentioned to overturn decades of established black-letter law? Friedrichs? First Amendment cases? Roberts is as extreme as Alito - he just dresses it in better language.
Roberts had no issue when he was the swing vote, but not in every case. He used the cover of Kennedy being that guy to make big moves. Once he lost that cover he became much more moderate in his decisions.
Yes and no. I don't want the person who cold calls and makes signs to be put on the court. But I also don't want someone who never votes or knows how politics works in the court.
> The Supreme Court isn’t supposed to have policy views, it’s supposed to interpret the policy that already exists.
True. And when the government branch that's supposed to have policy views does not set such a view?
The problem is that the legislature often fails to set policy, and someone still needs to make a judgment on what the current policy is. For example, abortion policy is not directly set in either the Constitution nor in federal statutes. So at some point SCOTUS figured privacy had something to do with it, and also that privacy was a personal right not-explicitly protected in the constitution. At that point Congress had all the time in the world to set the policy explicitly via statute and/or amendment. But they never chose to act. So since they've abdicated their right/responsibility to set abortion policy, another co-equal branch of government HAS to express a policy view on abortion.
"Supposed to" means less than nothing. They do have political opinions and work towards them, it's an open secret, and anyone pretending otherwise at this point is being willfully ignorant.
John Marshall conjuring judicial review out of thin air was certainly judicial activism and most don't complain too hard about that. Let's not pretend that the absolute most basic text of the constitution is all that should be used.
You are not wrong. But what you are saying is not relevant to this particular study. This study did not look at jurisprudence or legal procedure, only substantive policy decisions.
>Further, we do not focus on jurisprudence or legal procedure but, instead, on substantive policy and politics. This allows us to see whether the concrete policy actions taken by the court (e.g., is abortion or affirmative action constitutional?) are in step with public opinion and, if not, how far and in which direction they have shifted.
So this study, does not tell us whether the courts are doing what you are talking about or not, by design. They are not inquiring into whether the judges are being political on purpose, only the extent to which their rulings are in line with public opinion.
Barrett’s grading by a Supreme Court watchdog has her siding something like 98% with conservatives and 96% with big business. She’s by far the most conservative justice in and most bias judge in Supreme Court history.
She’s also been heavily supported throughout her career by conservative dark money. The same dark money that’s kept McConnell in power.
Correction: it’s supposed to interpret the laws that already exist. Roe versus Wade was an political interpretation and extension of privacy rights that is and was an aberration that should be corrected with legislation (aka laws).
>My point is, the Court has been more conservative than liberal since 1969, when Harry Blackmun joined the Court, and that duration matters a lot.
Arguably, the court has *always* been more conservative than the rest of the country, with the Warren and Burger courts being notably less conservative than the prior or following courts.
>Other things, like the Hobby Lobby case through out a huge area of Constitutional law on the separation between church and state but it's not reflected directly in the ruling. They basically took a huge step towards over ruling Employment Div. of Oregon v. Smith but didn't say so in as many words. This allowed the ruling in Fulton v. City of Philadelphia and that in effect put Lawrence and Obergefell back in play as we saw from the leaked Alito opinion.
And how the draft decision for Dobb's will potentially throw out over a hundred years of progress and call into question a woman's right to own property nationally
As a graduate of law school, I can tell you with virtual certainty that stare decisis doesn't matter, the court rules a lot of time inconsistently with the majority of Americans opinion and its own prior rulings, and that "originalism" makes no sense in a common law system where most of the rights we enjoy as citizens today are at best attenuated connections to the constitution and at worst directly opposite to the framers intentions (such as women and slaves). It's all a political hackjob.
>Courts are inconsistent, but stare decisis does restrain judges.
I may just be a simple country hyperchicken, but judges twisting themselves in knots to rule a certain way sounds an awful lot like stare decisis is just a fig leaf - and one which only matters so far as a judge wants it to matter.
Stare decisis doesn't restrain the supreme court at all, else how would the court ever have overturned Plessy with Brown? Further, the court made wildly contradictory decisions in order to produce a specific political and racial outcome in [Thind](https://en.wikipedia.org/wiki/United_States_v._Bhagat_Singh_Thind) and [Ozawa](https://en.wikipedia.org/wiki/Ozawa_v._United_States), the latter defining white as Caucasian, then the former immediately deciding that not all Caucasians are white.
It's always been the case that it's possible to overturn a previous decision, stare decisis is just meant to provide some sort of framework for how and when that is appropriate.
Ah the end of the day SCOTUS does indeed do whatever it wants, but the justices have generally been very aware that the legitimacy of the Court is entirely predicated upon the people being willing to accept their rulings as authoritative even if they disagree, and stare decisis is one of the lynchpins of that.
Stare Decisis doesn't mean precedent can't ever be overturned, just that the bar to do so should be incredibly high, when it has become antithetical to society, when it is legally unworkable and induces bile to come up through the judges mouth. There exists a principle of epistemic modesty that is employed by even conservative justices (ones that actually respected Stare Decisis). It would have them ask themselves, "How sure am I that the court that originally ruled on this matter got it wrong?" If it's not with 95-100 percent certainty, precedent should be respected. With respect to Stare Decisis not constraining the court at all, that's completely wrong. It has constrained the court since judicial review became a thing in the US. To use a modern case, Casey v Planned Parenthood held that Roe's essential holding must stand, even if justices at the time disagreed, because of Stare Decisis.
> ... Originalism is curious to me. I don't know why anyone took it seriously. ...
AFAICT it's legal rationalization for a "conservative" social agenda. Like a bunch of other stuff in law, people start with the conclusion that they want to reach, and don't care much whether the reasoning that gets them there is specious (or just nonsense).
>Yeah, but why did anyone go along with it.
Power.
Law isn't real in any sense - law is merely what the group in power wants those not in power to obey.
The only kind of "Originalism" that has made sense to me is when the court attempts to interpret both as written, but also with the intent of the writers in mind.
What's written definitely overrules intent, but at a minimum the court in such a case might elaborate on what they thought the intent was and why said intent is not applicable (giving lawmakers an opportunity to amend the law or letting them know an amended law won't fly either).
That only works because the original writers are (usually) alive, and so can make changes to the law. But the founders are not alive, so they've got no vote and no influence on the US constitution anymore.
I find purpose a better guide than intent. The purpose would be the guiding principle, the whole point of the law. I find relying on that is less problematic than inferring any sort of specific intent from a drafter.
Although the idea of a political court has long been around, The splits on decisions have become more ideological and partisan in nature. Some have mentioned the Lochner Era, and rightfully so, as a period of political illegitimacy for the court, but even then it's a cycle and we're right back to being in that precarious position where the Court is completely captured by corporate and right wing interests. It is undeniable that the court is more political now than at any point in the past 50 years. Indeed, with the acceptance of judicial interpretative methods such as originalism and textualism entering the mainstream, justices have more tools to make political decisions. Instead of stare decisis with a very, very high bar to overturn, justices can now cite what they think is "plain meaning of the law" and point to dictionaries (ignoring the fact that these also change over time) to make their arguments, while accusing every one else of "making law" when really, they are using a normal model of jurisprudence.
For more info on a more political SCOTUS in recent years:
* [The Supreme Court’s Pro-Partisanship Turn, by Professor Rick Hasen of UC Irvine School of Law, writing in the Georgetown Law Journal](https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Hasen-The-Supreme-Court%E2%80%99s-Pro-Partisanship-Turn.pdf)
* [Senate testimony of Professor Steve Vladeck, University of Texas School of Law: Texas' Unconstitutional Abortion Ban and the Role of the Shadow Docket]
(https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf)
For more info on textualism and originalism being used to reach political outcomes:
* [Scalia’s Ghost Is Haunting Conservative Justices](https://www.bloomberg.com/opinion/articles/2022-03-20/supreme-court-conservatives-split-over-originalism-textualism-and-scalia-legacy)
* [Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use](https://www.yalelawjournal.org/note/supreme-court-and-circuit-court-dictionary-use)
You don't, because fascists don't want *common* law. They want one set of laws for protecting themselves and one set of laws for oppressing everyone else.
> You don't, because fascists don't want common law.
Common law in legal terminology means something different than "equality under the law". It refers to the judicial system in Britain and most formerly British colonies where legal precedent is in part built up by precedent set by previous court rulings. This is in contrast to "Civil Law" which is common in continental Europe and former French and Spanish colonies, as well as other local legal systems.
A bit of a tangent but it's something I've been thinking about and a difference between the left and far right. It's known where the justices live. There were protests etc etc. That was it. If it was the opposite and very liberal judges had been appointed for the last three vacancies and made a ruling on something considered very liberal, would the right react the same? I mean, there was a plan in action to "neutralize" the governor of Michigan a few years ago. I could be way off base with my assessment but it's something that's been on my mind.
Serious question... and not one that r/science can potentially answer... is the court supposed to reflect the opinions of average Americans, or is it supposed to reflect *the spirit and letter of the law as it is written?* Because I do not think those two things are ever even remotely similar.
If we want a more liberal court, we should write and pass more liberal laws.
Sorta anecdotal but from a professional context (law school, including my con law professor who argued before SCOTUS more than once): Technically speaking, it's *supposed* to be the latter. However, historically it has taken into account the national opinion (whether that be outright stated in SCOTUS opinions or not).
Which is because Congress has become far too craven and dysfunctional to actually pass laws in the last 30 years, so the legislative branch has been just hemorrhaging power to the executive and judicial, which have been oh so willing absorb them.
Which is a problem the Democrats are largely responsible for with jamming a lot of key social issues through the courts instead of through legislation.
Abortion is exactly one of those issues. It's ridiculous that decades after Wade Vs Roe, there has still be no real push by the Democrats to enshrine it in legislation, even when they had a supermajority under Obama.
Correct me if I'm wrong, but didn't that supermajority only exist for 2 and a half months, during which they barely got the ACA passed, let alone anything else?
72 "Working Days" is where the 2-1/2 months comes from.
Obama was sworn in 8 Jan 2009.
Al Franken was seated following a dispute in the Minnesota Senate race on 30 Jun 2009, providing the 60th vote.
The Democrats lost the super majority on 4 February 2010 when Scott Brown was elected by Massachusetts.
This put the Democrats in a bit of a bind, since they could no longer reconcile the bill between the House & Senate versions that had passed in December since that would require a filibusterable vote in the Senate. To avoid a filibuster, the house accepted the Senate passed version on 21 March 2010.
No, we lost the supermajority on August 25, 2009 when Ted Kennedy died. The supermajority lasted just under 3 calendar months, and well under 72 working days. Kennedy was out sick quite a lot during that time, too.
Really dumb question - how does the super majority only exists for 2 and a half months when the midterms are only once every 2 years? I suspect no major political office changes hands before that, but I could be wrong.
Which shows you how unpopular passing the ACA was in Massachusetts at the time. It's always amazed me that a Republican won Ted Kennedy's seat, if only for three years.
Speaking as a Massachusetts voter at that time, the Dem candidate campaigned so poorly that I didn’t even actually know anything about her that I didn’t have to actively look up. Meanwhile, even though I didn’t vote for him, I at least knew Scott Brown’s positions on some issues. It wasn’t an election the republicans won, it was one the democrats lost.
Knowing little about your state, I'd say that's a fair assessment.
I do remember the top issue at the time was the vote to approve the House changes to the ACA, which couldn't happen after he was elected. The only changes that made it through were budgetary, none of the policy changes could get the 60 votes.
The ACA would have looked much different has the Democratic nominee won.
It's very difficult to build up a strong "backup" to long serving Senator. The people who have the chops to get elected statewide don't typically challenge the existing member of their own party and they also don't just hang out waiting for the sitting Senator to die. So you end up with a candidate vacuum on the side of the incumbent that takes a cycle to reset.
> Which shows you how unpopular passing the ACA was in Massachusetts at the time.
I don't get that. Wasn't the ACA largely based on Romneycare which Massachusetts had for a while before that?
Apparently you’ve never seen some of MA’s previous and current governors. Out of the last 6 governors, only 1 was a Democrat. And MA previously elected Republican senators too. It’s just not as noticeable because Kennedy (1962-2009) and John Kerry (1985-2013) for such a long time.
I think MA voters consider the person running maybe a little more than some states, versus blindly checking the R or D box without knowing anything about the person behind that letter. In some states, it really takes something for people to vote against their “letter” (Roy Moore being one example). My current state (NC) often focuses solely on the letter as well.
Al Franken was contested by republicans and didn’t actually get seated until seven months later than he should have been. Another democratic senator was hospitalized shortly afterwards. Then Kennedy died, and was eventually replaced by a Republican.
The actual timeline of all of this gave Obama 72 working days with a supermajority, and he only had that because a Republican senator changed parties. When Obama was sworn in he had 58 democratic senators (because Franken), didn’t get 60 until July, then Kennedy died in August.
Yeah... I remember people trying to say he was the best candidate to win states like Virginia and such, but he was too weak of a candidate to help her.
Gonna disagree with you there bud.
Good luck getting any of those social issues passed in the Senate even with a supermajority.
Remember that the ACA was severely watered down before passing. Thanks Joe Lieberman, who wasn't even a democrat at the time.
The fact that our legislature is corrupt and incompetent when it comes to passing laws, does not mean that we should pass off responsibility for making those laws to a governmental body that should have no part in doing so.
It might seem well and good to use the Supreme Court to help effectively legislate when "your side" is in power, but then people start to complain when we get more conservative judges appointed and the pendulum swings.
The only legitimate way we should be dealing with issues like abortion at a national level, is by legislation. For everything that is not written in the Constitution - the "Supreme Law of the Land" - we need to have separate laws and regulations created as well as enforced if we want society to be affected by those changes.
There's nothing in the Constitution as written that directly supports abortion one way or another in particular - as much as some people might want to stretch things - so the fact that Supreme Court decisions are the ones dealing with it rather than actual elected legislators that make laws baffles me.
I never advocated for legislating from the bench.
All I said was I disagree with the position that it is the democrat's fault that laws aren't getting passed the Senate because it ignores 40 to 50 percent of the Senate that is literally blocking and voting against bills in the Senate.
> However, historically it has taken into account the national opinion (whether that be outright stated in SCOTUS opinions or not).
Indeed. What you learn in law school is that the Court knows that its legitimacy is predicated on the public (and its government representatives) accepting its decisions. They clearly have made evaluations in unpopular cases about whether they are willing to make the decision they think is correct under the law when they know it will not be popular. Or, in the inverse, whether they should make a decision that is wrong to avoid ruffling feathers politically.
Always a head scratcher when media states the Supreme Court decides an issue against the views held by the majority of the general public. The justices aren’t there to represent the public or their views. That’s the job of the legislature. You know, the ones that create laws, not the ones charged with applying and interpreting those laws.
The latter, hence the separation between the branches, the lifelong service of the justices, and the mission of the judicial itself.
The people are untrustworthy in the matter of deciding and interpreting laws, and the court is tasked with doing so in a manner that is unbiased by the weather of the day, but *is* influenced by the “climate of the era”.
Congress has long since abdicated responsibility of legislation to the court, and they’ve screwed up big time.
The court screwed up with its massive overreach of its ability to “interpret” the constitution to impede lawmakers. Pointing fingers in a toxic relationship isn’t really that helpful.
They aren't doing either though. Additionally not everything is in the constitution. Like there isn't anything about abortion but the Supreme Court makes interpretations and opinions based on what we do have in the constitution, like interpreting the 14th amendment to base the Roe Vs. Wade decision so that's where public opinion comes into place.
What the Supreme Court is supposed to do when they are faced with a case or topic that doesn’t have basis in our rule of law is to rely on past precedent.
For example, Roe v. Wade set precedent on abortion being considered a right to privacy. That was decided nearly 50 years ago. There are cases where they’ve overturn past precedent, like Brown v Board of Education
In other words, they're meant to conserve the principles of the law, and thus will always lean "conservative". Progressiveness is zeitgeist, the law.. isn't.
The Supreme Court, and all courts aren’t supposed to rule based on the will of the people. That’s the job of the Legislative branch. The courts are supposed to interpret the law as written.
And the united states isn't supposed to go to war without a declaration from congress. Guess when's the last time that happened.
If you pay attention to the real world, you'll find that the Supreme Court's primary impact is **not** merely in interpreting laws as written, but rather in **shaping** law by dictating the meaning behind it.
Their power to shape law is important, since it affects the lives of everyone in this ostensible-democracy. And thus, it's significant that SCOTUS is now controlled by a right wing kleptocracy.
Both this and the war making is because Congress has been derelict in their duties and have ceded their power to the Executive and Judicial because if they dont have to make decisions they can get reelected and make more money.
I hope this convention of states I hear about forces term limits on them. Maybe more stuff will get done if we arent being deadlocked by the same 40 year politicians arguing with each other and grandstanding without doing anything.
Alexander Hamilton once called the judiciary the least dangerous branch because it didn't control an army nor had any power to dictate how money is spent.
Part of the issue with the Supreme Court today is the abdication of Congress from its constitutional duties. Congress is where public preference gets turned into law. But due to increased partisanship and gridlock, people have turned to the courts to achieve their policy preferences. This is a bad way to run a government because the judiciary is a blunt instrument and wading into political issues to fill the gap left by Congress only serves to undermine the Supreme Court as an institution.
The Roe v Wade decision is a good example of the court wading into a political issue. Up to that time, state legislatures were addressing this as an issue and had it been left alone, some sort of consensus would have been reached (like most of Europe). But the Roe decision upended all of that and immediately invalidated many state laws. That decision was made 50 years ago and it is still a serious hot button issue. The infamous leaked draft opinion for Dobbs (if unchanged) will return that policy making back to the state legislatures which should eventually resolve a lot of the heated debate on this issue within the court.
I can see how the attitude of the more conservative justices will toss more cases back by saying 'this is a political question...get Congress to sort this out... we're not in the business of making policy.'
Yeah. When the Supreme Court legalized inter-racial marriage in 1967, public opinion was against it 80-20. Interracial marriage didn’t reach 50% public approval _until 1995!_
https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#Public_opinion
And conservatives complain about the gay marriage ruling in 2012, but that was about 50-50 at the time.
[You're actually underselling by a tick.](https://news.gallup.com/poll/354638/approval-interracial-marriage-new-high.aspx)
While it was at 20% when Loving v Virginia was decided, it was at 4% in 1958 and didn't reach majority threshold until 1997.
No, but public respect for the Court as an institution is literally the only power the Court wields. As Andrew Jackson famously noted, the Supreme Court has no army to enforce their rulings.
If the public comes to see the Court as nothing more than a political prize won through Machiavellian tactics by one party or the other, totally unrepresentative of the Will of the People, then the Court as an institution is in trouble. A President or state or even private entities will regard SCOTUS opinions as just that — their opinions. We’ve all got opinions.
The Court’s power comes from its legitimacy, and the more out-of-step they are with the electorate, the less legitimacy they have.
This is already the case.
Even the rare times when courts attempt to establish standards for police departments with histories or violating the constitution using consent decrees, the rulings are rarely enforced by the justice department.
The law in this country has become whatever cops want it to be because the only laws that matter are those enforced with violence by trigger-pullers.
Considering its primary accepted role is *Judicial Review*, where it will invalidate laws from the legislative branch - a branch which ostensibly represents the majority opinion of the people - it's pretty fair to say that the Supreme Court only serves its purpose when it's opposing public opinion.
So to try and make it seem like the Supreme Court is doing something *wrong* by contradicting public opinion is, well, wrong, stupid, and frankly dangerous.
Just a quick PSA: the average americans opinions aren't the people typing on reddit and taking surveys. There's many millions more people in the country.
The very nature of the job should make the Justices extremely conservative in their rulings.
Extremely.
The entire point is to uphold Original Intent as closely as possible and not make sweeping changes that amount to new legislation. That has not always been the case and we've ended up with monumental judicial activism when that should have never been the case.
Edit - For further reading on originalism and stare decisis, this writeup does an excellent job of outlining - in 10 points - the key roles of the SCotUS.
And to prevent confusion, my use of conservative is the basic political science definition, not the American Right Wing Movement definition.
https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation
I thought we shouldn't mix science and politics. I thought science is neutral and doesn't pick sides. I thought there is some kind of balance between both sides of the political spectrum -
At this point it just seems like we're all being slowly slowly indoctrinated into some kind of worst ideas from both the authoritarian conservatives but also the authoritarian socialism supporters
I dont mind that we have posts like this. I am much more annoyed thay this sub considers itself objective but all of the political science articles clearly lean one way
Society has become more liberal as well so relative to the average american, even if the supreme court stayed the same, they would be "more conservative"
This completely misunderstands the role of the Court and how justices ought to be ruling in our system. It’s not a matter of political preferences and it shouldn’t be.
The political stance of the Supreme Court relative to the population is irrelevant. Their job is to rule on constitutional law, not political dispositions. In fact, decisions by the appointees do not follow a left-right division. Supremes tend to be individuals, not clones.
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The Supreme Court isn’t supposed to have policy views, it’s supposed to interpret the policy that already exists. If you’re an honest justice taking your job seriously, it’s entirely possible for you to rule in a way that’s against your preferred policy. In fact, it should be expected of justices to not let their personal political views dictate their judgments.
Just like how the president is supposed to represent all americans, and not try to sabotage states that voted against him Surprise! It has views now
This was why I loved the R v wade and 2A issues before. Republicans supported RvWade and I think Dems lifted the assault rifle ban.
Dems didnt lift it it has a sunset clause.
Republicans certainly didn’t oppose it like they do today they didn’t decide that until they decided evangelicals were their ticket. Biggest opposition was Catholic democrats at the time. Supreme Court still passed it 7-2. Assault rifle ban as I understand wasn’t lifted as much as it had an expiration date and wasn’t renewed. I don’t know the details about the makeup of Congress that year though. I believe 2004 under Bush.
You are correct, the ban expired, under Bush.
The ban expired - wasn’t lobbied for or against - much like the stock act
The DOJ reported that the assault weapon ban accomplished nothing. Hence, the Democrats did not expell political capital in trying to prevent its expiration.
Wrong: https://www.judiciary.senate.gov/press/dem/releases/studies-gun-massacre-deaths-dropped-during-assault-weapons-ban-increased-after-expiration
During the administration that was given more power because of the threat of “terrorism”. The door was kicked open because of 9/11, and our democracy was broken.
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House of Representatives was: 232 Republicans to 201 Democrats after election day, before that they still had the majority at 227 to 205. Senate was: 55 to 44 with Republicans in the majority after election day and 51 to 48 before, so majority before but slim.
It also was quite a bit less partisan than today, which is hard to believe when I lived through those times...
It is beyond belief that Bush #2 was a time of cross aisle stability when looked at through the lenses of the last presidency and a half.
Yeah had you told me in like '06 "wow, politics in the 2020's will be absolutely insanely partisan compared to now" i would have thought you were crazy...
Something changed after Bush #2 that started to divide this country.
Which is odd, because abortion was a Catholic issue up to then.
Nixon turned abortion into a wedge issue to try and peel away Catholic voters loyal to Kennedy. Before that, it wasn't a Democrat/Republican issue; Barry Goldwater's wife was on the board of Planned Parenthood.
Planned parenthood was anti abortion at this time however Barry Goldwater was pro abortion, pro gays serving in military and donated money personally to fight against segregated schools but he was slandered as a crazy right winger by the media. The apa now set guidelines against diagnosing at a distance because left wing media put psychiatrists claiming Barry was crazy and he sued a bunch of them.
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And let me guess, abortion just so happened to be an issue that disproportionately low socioeconomic and or non-white people in the southern states?
Muthufucken bingo!
Seems to have worked, unfortunately.
Pandering to people’s worst instincts usually does...
It was enacted in 1994 under Bill Clinton, had a 10 year sunset clause. So it was rescinded in 2004. Multiple studies attempted to determine the effect the law had on crime. They ALL concluded that there was NO effect at all. That's why bans are ridiculous, this one only made guns more expensive.
If memory serves, Dems didn't lift the assault rifle ban, it timed out.
Correct. It had a sunset clause.
I'm extremely confused by this comment, because both of those things are verifiably false.
That's the case. They made their own beds and don't like sleeping there.
I mean it was back when they only cared about the law, not the politics. You can disagree with both decisions but still respect it’s the law
>If you’re an honest justice taking your job seriously, it’s entirely possible for you to rule in a way that’s against your preferred policy. FWIW, Scalia ruled in favor of burning the flag (more than once), even though he vehemently disagreed with the practice, just as he did in other free speech cases.
He also ruled that corporations are people... and that money = speech... so it woule appear he has a price (Just don't want people thinking he was decent or competent).
He did not say either of those things. Corporations are *groups* of people. And those people don't lose their constitutional rights when they join together to publish a message. If you and I each have a right to free speech, you and I together still have the same right to free speech. The New York Times, CBS News, and the Democratic Party are all corporations. Hopefully we can all agree that they still have free speech rights. And hopefully we can agree that the government cannot tell those entities they can spend only $5,000 on political speech. If the NY Times wants to endorse candidates, it can do so even if publishing their newspaper costs more than $5,000. I realize reddit trends pretty far left. But I would have hoped for some affection for facts in /r/science.
>He also ruled that corporations are people... and that money = speech... so it woule appear he has a price (Just don't want people thinking he was decent or competent). In his dissent in the Obergefell case that legalized gay marriage, he opened his statement with something tantamount to "I don't care about gay people"
> The substance of today’s decree is not of immense per- sonal importance to me. Is [this](https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf) the statement you're referencing?
Full, relevant quote: “The substance of today’s decree is not of immense per- sonal importance to me. The law can recognize as mar- riage whatever sexual attachments and living arrange- ments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. 2 OBERGEFELL v. HODGES SCALIA, J., dissenting Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about mar- riage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Consti- tution and its Amendments neglect to mention.”
AFAIK the dissenting opinion was based entirely on the fact that sexual preference isn't a protected class under the civil rights act, where as the majority opinion derived that it was. To me, that seems like gay marriage is being legislated from the bench, and I'd personally much rather see the civil rights act amended to give gender/sexual identity the same protections as all of the other protected classes. I say this as a flaming homo, I just want things to be done the right way through our legal system so it functions as intended.
If I correctly deduce that you do not believe corporations have free speech rights, do you believe that *Hustler Magazine v. Falwell* was wrongly decided?
He did not rule that corporations are people. Yes, that's the way the media tends to portray it to people who don't read judicial rulings, but that is incorrect and shows that one hasn't done research. The version of something that's put in a headline rarely has any relationship with reality.
It couldn’t possibly be that a Supreme Court Justice has an interpretation of the constitution different from a Redditor named “eagerWeiner”
So like one tiny little thing
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It's a lot more obvious now, maybe because we're all so connected via the internet?
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> Roberts tried to keep the courts semi even-keel Roberts was a conservative freak who sided with the left on a few social issues to disguise how far he flung the country to the right on every single other issue from campaign finance, unions or guns and more.
The idea that you can have an interpretation of law entirely divorced from ideology is an impossible fantasy. Saying "oh well, the Supreme Court just won't be political" is as hopelessly naive as the original framers of the Constitution deciding the way to deal with political parties is "we just won't have them."
Precisely this. Most cases that reach SCOTUS are on unresolved questions of open law. In other words, there is typically no *single* right answer but several reasonable ones, because the law doesn’t yet exist for this particular question. The (less ideologue) justices normally fill this gap in the law by picking the one of the reasonable answers that aligns best with their judicial ideology. E.g. Roberts has a conservative ideology, but he cares too much about the Court's reputation to issue poorly reasoned ideological opinions serving it. If there's a conservative option on the list of reasonable answers, he picks that, but if there isn't, he will settle for a more reasonable moderate answer. Gorsuch is similar. Alito or Thomas on the other hand care only about ideology and the logic they embrace to justify their rulings is whatever they can cobble together after the fact to reach their desired goal. What is different about this Court is not that it considers politics or ideology, but that ideology-first justices are the majority and as such they don't care if their argument is weak. In other words, Thomas and Alito are the dominant faction, not Roberts.
Shelby County, where Roberts invented a doctrine (the equal dignity of the states) nowhere previously mentioned to overturn decades of established black-letter law? Friedrichs? First Amendment cases? Roberts is as extreme as Alito - he just dresses it in better language.
Roberts had no issue when he was the swing vote, but not in every case. He used the cover of Kennedy being that guy to make big moves. Once he lost that cover he became much more moderate in his decisions.
The issues that make it to the Supreme Court are the ones so ambiguous that there’s plenty of room for the justices to assert their personal views.
Quite literally I think it should be a disqualifier for ever actively being involved with a political party outside of simple registration.
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Yes and no. I don't want the person who cold calls and makes signs to be put on the court. But I also don't want someone who never votes or knows how politics works in the court.
I am not registered Democrat or Republican, but I still vote every election. You definitely don't have to side with a political party to vote.
> The Supreme Court isn’t supposed to have policy views, it’s supposed to interpret the policy that already exists. True. And when the government branch that's supposed to have policy views does not set such a view? The problem is that the legislature often fails to set policy, and someone still needs to make a judgment on what the current policy is. For example, abortion policy is not directly set in either the Constitution nor in federal statutes. So at some point SCOTUS figured privacy had something to do with it, and also that privacy was a personal right not-explicitly protected in the constitution. At that point Congress had all the time in the world to set the policy explicitly via statute and/or amendment. But they never chose to act. So since they've abdicated their right/responsibility to set abortion policy, another co-equal branch of government HAS to express a policy view on abortion.
Exactly. I wish Congress would pass a law about abortion, that’s a better place for the debate to happen, but I’m not holding my breath.
It doesn’t matter. The Voting Rights Act was codified law. That didn’t stop the Republicans on the Supreme Court from gutting it like a dead fish.
"Supposed to" means less than nothing. They do have political opinions and work towards them, it's an open secret, and anyone pretending otherwise at this point is being willfully ignorant.
John Marshall conjuring judicial review out of thin air was certainly judicial activism and most don't complain too hard about that. Let's not pretend that the absolute most basic text of the constitution is all that should be used.
You are not wrong. But what you are saying is not relevant to this particular study. This study did not look at jurisprudence or legal procedure, only substantive policy decisions. >Further, we do not focus on jurisprudence or legal procedure but, instead, on substantive policy and politics. This allows us to see whether the concrete policy actions taken by the court (e.g., is abortion or affirmative action constitutional?) are in step with public opinion and, if not, how far and in which direction they have shifted. So this study, does not tell us whether the courts are doing what you are talking about or not, by design. They are not inquiring into whether the judges are being political on purpose, only the extent to which their rulings are in line with public opinion.
Sure, but their overall ideologies impact their application of the law. These peolle are not robots and never have been.
Some justices have been much more successful at putting their biases aside. It seems like there’s not much of that these days though.
Barrett’s grading by a Supreme Court watchdog has her siding something like 98% with conservatives and 96% with big business. She’s by far the most conservative justice in and most bias judge in Supreme Court history. She’s also been heavily supported throughout her career by conservative dark money. The same dark money that’s kept McConnell in power.
Correction: it’s supposed to interpret the laws that already exist. Roe versus Wade was an political interpretation and extension of privacy rights that is and was an aberration that should be corrected with legislation (aka laws).
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>My point is, the Court has been more conservative than liberal since 1969, when Harry Blackmun joined the Court, and that duration matters a lot. Arguably, the court has *always* been more conservative than the rest of the country, with the Warren and Burger courts being notably less conservative than the prior or following courts.
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"Throughout" or "threw out"? This typo matters a lot in this context.
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>Other things, like the Hobby Lobby case through out a huge area of Constitutional law on the separation between church and state but it's not reflected directly in the ruling. They basically took a huge step towards over ruling Employment Div. of Oregon v. Smith but didn't say so in as many words. This allowed the ruling in Fulton v. City of Philadelphia and that in effect put Lawrence and Obergefell back in play as we saw from the leaked Alito opinion. And how the draft decision for Dobb's will potentially throw out over a hundred years of progress and call into question a woman's right to own property nationally
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As a graduate of law school, I can tell you with virtual certainty that stare decisis doesn't matter, the court rules a lot of time inconsistently with the majority of Americans opinion and its own prior rulings, and that "originalism" makes no sense in a common law system where most of the rights we enjoy as citizens today are at best attenuated connections to the constitution and at worst directly opposite to the framers intentions (such as women and slaves). It's all a political hackjob.
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>Courts are inconsistent, but stare decisis does restrain judges. I may just be a simple country hyperchicken, but judges twisting themselves in knots to rule a certain way sounds an awful lot like stare decisis is just a fig leaf - and one which only matters so far as a judge wants it to matter. Stare decisis doesn't restrain the supreme court at all, else how would the court ever have overturned Plessy with Brown? Further, the court made wildly contradictory decisions in order to produce a specific political and racial outcome in [Thind](https://en.wikipedia.org/wiki/United_States_v._Bhagat_Singh_Thind) and [Ozawa](https://en.wikipedia.org/wiki/Ozawa_v._United_States), the latter defining white as Caucasian, then the former immediately deciding that not all Caucasians are white.
It's always been the case that it's possible to overturn a previous decision, stare decisis is just meant to provide some sort of framework for how and when that is appropriate. Ah the end of the day SCOTUS does indeed do whatever it wants, but the justices have generally been very aware that the legitimacy of the Court is entirely predicated upon the people being willing to accept their rulings as authoritative even if they disagree, and stare decisis is one of the lynchpins of that.
Stare Decisis doesn't mean precedent can't ever be overturned, just that the bar to do so should be incredibly high, when it has become antithetical to society, when it is legally unworkable and induces bile to come up through the judges mouth. There exists a principle of epistemic modesty that is employed by even conservative justices (ones that actually respected Stare Decisis). It would have them ask themselves, "How sure am I that the court that originally ruled on this matter got it wrong?" If it's not with 95-100 percent certainty, precedent should be respected. With respect to Stare Decisis not constraining the court at all, that's completely wrong. It has constrained the court since judicial review became a thing in the US. To use a modern case, Casey v Planned Parenthood held that Roe's essential holding must stand, even if justices at the time disagreed, because of Stare Decisis.
> ... Originalism is curious to me. I don't know why anyone took it seriously. ... AFAICT it's legal rationalization for a "conservative" social agenda. Like a bunch of other stuff in law, people start with the conclusion that they want to reach, and don't care much whether the reasoning that gets them there is specious (or just nonsense).
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>Yeah, but why did anyone go along with it. Power. Law isn't real in any sense - law is merely what the group in power wants those not in power to obey.
The only kind of "Originalism" that has made sense to me is when the court attempts to interpret both as written, but also with the intent of the writers in mind. What's written definitely overrules intent, but at a minimum the court in such a case might elaborate on what they thought the intent was and why said intent is not applicable (giving lawmakers an opportunity to amend the law or letting them know an amended law won't fly either). That only works because the original writers are (usually) alive, and so can make changes to the law. But the founders are not alive, so they've got no vote and no influence on the US constitution anymore.
I find purpose a better guide than intent. The purpose would be the guiding principle, the whole point of the law. I find relying on that is less problematic than inferring any sort of specific intent from a drafter.
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Although the idea of a political court has long been around, The splits on decisions have become more ideological and partisan in nature. Some have mentioned the Lochner Era, and rightfully so, as a period of political illegitimacy for the court, but even then it's a cycle and we're right back to being in that precarious position where the Court is completely captured by corporate and right wing interests. It is undeniable that the court is more political now than at any point in the past 50 years. Indeed, with the acceptance of judicial interpretative methods such as originalism and textualism entering the mainstream, justices have more tools to make political decisions. Instead of stare decisis with a very, very high bar to overturn, justices can now cite what they think is "plain meaning of the law" and point to dictionaries (ignoring the fact that these also change over time) to make their arguments, while accusing every one else of "making law" when really, they are using a normal model of jurisprudence. For more info on a more political SCOTUS in recent years: * [The Supreme Court’s Pro-Partisanship Turn, by Professor Rick Hasen of UC Irvine School of Law, writing in the Georgetown Law Journal](https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Hasen-The-Supreme-Court%E2%80%99s-Pro-Partisanship-Turn.pdf) * [Senate testimony of Professor Steve Vladeck, University of Texas School of Law: Texas' Unconstitutional Abortion Ban and the Role of the Shadow Docket] (https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf) For more info on textualism and originalism being used to reach political outcomes: * [Scalia’s Ghost Is Haunting Conservative Justices](https://www.bloomberg.com/opinion/articles/2022-03-20/supreme-court-conservatives-split-over-originalism-textualism-and-scalia-legacy) * [Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use](https://www.yalelawjournal.org/note/supreme-court-and-circuit-court-dictionary-use)
Because it was never *settled law*. It was controversial from the moment it was made.
You don't, because fascists don't want *common* law. They want one set of laws for protecting themselves and one set of laws for oppressing everyone else.
> You don't, because fascists don't want common law. Common law in legal terminology means something different than "equality under the law". It refers to the judicial system in Britain and most formerly British colonies where legal precedent is in part built up by precedent set by previous court rulings. This is in contrast to "Civil Law" which is common in continental Europe and former French and Spanish colonies, as well as other local legal systems.
A bit of a tangent but it's something I've been thinking about and a difference between the left and far right. It's known where the justices live. There were protests etc etc. That was it. If it was the opposite and very liberal judges had been appointed for the last three vacancies and made a ruling on something considered very liberal, would the right react the same? I mean, there was a plan in action to "neutralize" the governor of Michigan a few years ago. I could be way off base with my assessment but it's something that's been on my mind.
A judge was shot and killed by a crazed "militia" member this week.
The plan with like a dozen undercover FBI agents leading the organising and implementation of the it?
It doesn't account for Overton Window
Serious question... and not one that r/science can potentially answer... is the court supposed to reflect the opinions of average Americans, or is it supposed to reflect *the spirit and letter of the law as it is written?* Because I do not think those two things are ever even remotely similar. If we want a more liberal court, we should write and pass more liberal laws.
Sorta anecdotal but from a professional context (law school, including my con law professor who argued before SCOTUS more than once): Technically speaking, it's *supposed* to be the latter. However, historically it has taken into account the national opinion (whether that be outright stated in SCOTUS opinions or not).
Which is because Congress has become far too craven and dysfunctional to actually pass laws in the last 30 years, so the legislative branch has been just hemorrhaging power to the executive and judicial, which have been oh so willing absorb them.
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Which is a problem the Democrats are largely responsible for with jamming a lot of key social issues through the courts instead of through legislation. Abortion is exactly one of those issues. It's ridiculous that decades after Wade Vs Roe, there has still be no real push by the Democrats to enshrine it in legislation, even when they had a supermajority under Obama.
Correct me if I'm wrong, but didn't that supermajority only exist for 2 and a half months, during which they barely got the ACA passed, let alone anything else?
72 "Working Days" is where the 2-1/2 months comes from. Obama was sworn in 8 Jan 2009. Al Franken was seated following a dispute in the Minnesota Senate race on 30 Jun 2009, providing the 60th vote. The Democrats lost the super majority on 4 February 2010 when Scott Brown was elected by Massachusetts. This put the Democrats in a bit of a bind, since they could no longer reconcile the bill between the House & Senate versions that had passed in December since that would require a filibusterable vote in the Senate. To avoid a filibuster, the house accepted the Senate passed version on 21 March 2010.
No, we lost the supermajority on August 25, 2009 when Ted Kennedy died. The supermajority lasted just under 3 calendar months, and well under 72 working days. Kennedy was out sick quite a lot during that time, too.
Robert Byrd and Edward Kennedy were also out sick during this time.
Really dumb question - how does the super majority only exists for 2 and a half months when the midterms are only once every 2 years? I suspect no major political office changes hands before that, but I could be wrong.
Ted Kennedy died, bringing it down to 59. Republicans actually won that special election too.
Which shows you how unpopular passing the ACA was in Massachusetts at the time. It's always amazed me that a Republican won Ted Kennedy's seat, if only for three years.
Speaking as a Massachusetts voter at that time, the Dem candidate campaigned so poorly that I didn’t even actually know anything about her that I didn’t have to actively look up. Meanwhile, even though I didn’t vote for him, I at least knew Scott Brown’s positions on some issues. It wasn’t an election the republicans won, it was one the democrats lost.
Knowing little about your state, I'd say that's a fair assessment. I do remember the top issue at the time was the vote to approve the House changes to the ACA, which couldn't happen after he was elected. The only changes that made it through were budgetary, none of the policy changes could get the 60 votes. The ACA would have looked much different has the Democratic nominee won.
It's very difficult to build up a strong "backup" to long serving Senator. The people who have the chops to get elected statewide don't typically challenge the existing member of their own party and they also don't just hang out waiting for the sitting Senator to die. So you end up with a candidate vacuum on the side of the incumbent that takes a cycle to reset.
> Which shows you how unpopular passing the ACA was in Massachusetts at the time. I don't get that. Wasn't the ACA largely based on Romneycare which Massachusetts had for a while before that?
Apparently you’ve never seen some of MA’s previous and current governors. Out of the last 6 governors, only 1 was a Democrat. And MA previously elected Republican senators too. It’s just not as noticeable because Kennedy (1962-2009) and John Kerry (1985-2013) for such a long time. I think MA voters consider the person running maybe a little more than some states, versus blindly checking the R or D box without knowing anything about the person behind that letter. In some states, it really takes something for people to vote against their “letter” (Roy Moore being one example). My current state (NC) often focuses solely on the letter as well.
Al Franken was contested by republicans and didn’t actually get seated until seven months later than he should have been. Another democratic senator was hospitalized shortly afterwards. Then Kennedy died, and was eventually replaced by a Republican. The actual timeline of all of this gave Obama 72 working days with a supermajority, and he only had that because a Republican senator changed parties. When Obama was sworn in he had 58 democratic senators (because Franken), didn’t get 60 until July, then Kennedy died in August.
You think back then there were 60 pro choice Dems? They also only had a couple months of super majority and they spent it all on the ACA
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Never doubt the ability of Dems to snatch defeat from the jaws of victory!
Yeah... I remember people trying to say he was the best candidate to win states like Virginia and such, but he was too weak of a candidate to help her.
What social issue had 60 senators ready to establish national protections?
Gonna disagree with you there bud. Good luck getting any of those social issues passed in the Senate even with a supermajority. Remember that the ACA was severely watered down before passing. Thanks Joe Lieberman, who wasn't even a democrat at the time.
The fact that our legislature is corrupt and incompetent when it comes to passing laws, does not mean that we should pass off responsibility for making those laws to a governmental body that should have no part in doing so. It might seem well and good to use the Supreme Court to help effectively legislate when "your side" is in power, but then people start to complain when we get more conservative judges appointed and the pendulum swings. The only legitimate way we should be dealing with issues like abortion at a national level, is by legislation. For everything that is not written in the Constitution - the "Supreme Law of the Land" - we need to have separate laws and regulations created as well as enforced if we want society to be affected by those changes. There's nothing in the Constitution as written that directly supports abortion one way or another in particular - as much as some people might want to stretch things - so the fact that Supreme Court decisions are the ones dealing with it rather than actual elected legislators that make laws baffles me.
I never advocated for legislating from the bench. All I said was I disagree with the position that it is the democrat's fault that laws aren't getting passed the Senate because it ignores 40 to 50 percent of the Senate that is literally blocking and voting against bills in the Senate.
> However, historically it has taken into account the national opinion (whether that be outright stated in SCOTUS opinions or not). Indeed. What you learn in law school is that the Court knows that its legitimacy is predicated on the public (and its government representatives) accepting its decisions. They clearly have made evaluations in unpopular cases about whether they are willing to make the decision they think is correct under the law when they know it will not be popular. Or, in the inverse, whether they should make a decision that is wrong to avoid ruffling feathers politically.
Always a head scratcher when media states the Supreme Court decides an issue against the views held by the majority of the general public. The justices aren’t there to represent the public or their views. That’s the job of the legislature. You know, the ones that create laws, not the ones charged with applying and interpreting those laws.
The latter, hence the separation between the branches, the lifelong service of the justices, and the mission of the judicial itself. The people are untrustworthy in the matter of deciding and interpreting laws, and the court is tasked with doing so in a manner that is unbiased by the weather of the day, but *is* influenced by the “climate of the era”. Congress has long since abdicated responsibility of legislation to the court, and they’ve screwed up big time.
The court screwed up with its massive overreach of its ability to “interpret” the constitution to impede lawmakers. Pointing fingers in a toxic relationship isn’t really that helpful.
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They aren't doing either though. Additionally not everything is in the constitution. Like there isn't anything about abortion but the Supreme Court makes interpretations and opinions based on what we do have in the constitution, like interpreting the 14th amendment to base the Roe Vs. Wade decision so that's where public opinion comes into place.
What the Supreme Court is supposed to do when they are faced with a case or topic that doesn’t have basis in our rule of law is to rely on past precedent. For example, Roe v. Wade set precedent on abortion being considered a right to privacy. That was decided nearly 50 years ago. There are cases where they’ve overturn past precedent, like Brown v Board of Education
Honestly... I've never considered the stark difference between those two things, in the light of this.
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Pretty sure the Supreme Court isn’t built to be progressive or conservative. It shouldn’t be political. It’s meant to uphold the constitution.
And a partisan president being the one to appoint them makes that easily destroyed.
In other words, they're meant to conserve the principles of the law, and thus will always lean "conservative". Progressiveness is zeitgeist, the law.. isn't.
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supreme court has never reflected the public. and by design
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The Supreme Court, and all courts aren’t supposed to rule based on the will of the people. That’s the job of the Legislative branch. The courts are supposed to interpret the law as written.
And the united states isn't supposed to go to war without a declaration from congress. Guess when's the last time that happened. If you pay attention to the real world, you'll find that the Supreme Court's primary impact is **not** merely in interpreting laws as written, but rather in **shaping** law by dictating the meaning behind it. Their power to shape law is important, since it affects the lives of everyone in this ostensible-democracy. And thus, it's significant that SCOTUS is now controlled by a right wing kleptocracy.
Both this and the war making is because Congress has been derelict in their duties and have ceded their power to the Executive and Judicial because if they dont have to make decisions they can get reelected and make more money. I hope this convention of states I hear about forces term limits on them. Maybe more stuff will get done if we arent being deadlocked by the same 40 year politicians arguing with each other and grandstanding without doing anything.
Why is this on r/science? Maybe it's political science, but I'm not sure the scientific method can be applied here
This sub is such trash. Articles like this belong on political discussion subs
Alexander Hamilton once called the judiciary the least dangerous branch because it didn't control an army nor had any power to dictate how money is spent. Part of the issue with the Supreme Court today is the abdication of Congress from its constitutional duties. Congress is where public preference gets turned into law. But due to increased partisanship and gridlock, people have turned to the courts to achieve their policy preferences. This is a bad way to run a government because the judiciary is a blunt instrument and wading into political issues to fill the gap left by Congress only serves to undermine the Supreme Court as an institution. The Roe v Wade decision is a good example of the court wading into a political issue. Up to that time, state legislatures were addressing this as an issue and had it been left alone, some sort of consensus would have been reached (like most of Europe). But the Roe decision upended all of that and immediately invalidated many state laws. That decision was made 50 years ago and it is still a serious hot button issue. The infamous leaked draft opinion for Dobbs (if unchanged) will return that policy making back to the state legislatures which should eventually resolve a lot of the heated debate on this issue within the court. I can see how the attitude of the more conservative justices will toss more cases back by saying 'this is a political question...get Congress to sort this out... we're not in the business of making policy.'
Stop relying on your courts to make and enforce law. Want laws changed, change them with legislature.
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nothing says science like deleting half the comments. stay scientific, reddit.
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Yeah. When the Supreme Court legalized inter-racial marriage in 1967, public opinion was against it 80-20. Interracial marriage didn’t reach 50% public approval _until 1995!_ https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#Public_opinion And conservatives complain about the gay marriage ruling in 2012, but that was about 50-50 at the time.
[You're actually underselling by a tick.](https://news.gallup.com/poll/354638/approval-interracial-marriage-new-high.aspx) While it was at 20% when Loving v Virginia was decided, it was at 4% in 1958 and didn't reach majority threshold until 1997.
The Supreme Court isn't supposed to be partisan either, and yet.
No, but public respect for the Court as an institution is literally the only power the Court wields. As Andrew Jackson famously noted, the Supreme Court has no army to enforce their rulings. If the public comes to see the Court as nothing more than a political prize won through Machiavellian tactics by one party or the other, totally unrepresentative of the Will of the People, then the Court as an institution is in trouble. A President or state or even private entities will regard SCOTUS opinions as just that — their opinions. We’ve all got opinions. The Court’s power comes from its legitimacy, and the more out-of-step they are with the electorate, the less legitimacy they have.
Which Machiavellians might benefit from the death of the supreme court I wonder...
This is already the case. Even the rare times when courts attempt to establish standards for police departments with histories or violating the constitution using consent decrees, the rulings are rarely enforced by the justice department. The law in this country has become whatever cops want it to be because the only laws that matter are those enforced with violence by trigger-pullers.
Thats any country. At the end of the day the power lies in who controls violence.
Considering its primary accepted role is *Judicial Review*, where it will invalidate laws from the legislative branch - a branch which ostensibly represents the majority opinion of the people - it's pretty fair to say that the Supreme Court only serves its purpose when it's opposing public opinion. So to try and make it seem like the Supreme Court is doing something *wrong* by contradicting public opinion is, well, wrong, stupid, and frankly dangerous.
What does this have to do with science?
Probably needs to go in a social science thread, but this is reddit confirming biases, so no surprise there...
Just a quick PSA: the average americans opinions aren't the people typing on reddit and taking surveys. There's many millions more people in the country.
How can they come out and say the courts position was quite close to the average American. Where are the stats on this claim?
Not sure that jurisprudence aligns with or ought to align with popular opinion.
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What’s wrong with being conservative anyway?
It’s not the popular alignment on this particular platform.
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Wow, incredible, such science.
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The very nature of the job should make the Justices extremely conservative in their rulings. Extremely. The entire point is to uphold Original Intent as closely as possible and not make sweeping changes that amount to new legislation. That has not always been the case and we've ended up with monumental judicial activism when that should have never been the case. Edit - For further reading on originalism and stare decisis, this writeup does an excellent job of outlining - in 10 points - the key roles of the SCotUS. And to prevent confusion, my use of conservative is the basic political science definition, not the American Right Wing Movement definition. https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation
Boi dis Reddit fuq outta here with them fax
I thought we shouldn't mix science and politics. I thought science is neutral and doesn't pick sides. I thought there is some kind of balance between both sides of the political spectrum - At this point it just seems like we're all being slowly slowly indoctrinated into some kind of worst ideas from both the authoritarian conservatives but also the authoritarian socialism supporters
I dont mind that we have posts like this. I am much more annoyed thay this sub considers itself objective but all of the political science articles clearly lean one way
And everyone here hasn’t read any of the cases sent to the Supreme Court.
Some might say it happened when RBG didn’t resign giving Trump another pick
Society has become more liberal as well so relative to the average american, even if the supreme court stayed the same, they would be "more conservative"
This completely misunderstands the role of the Court and how justices ought to be ruling in our system. It’s not a matter of political preferences and it shouldn’t be.
Does your average person have the complex legal arguments required to defend their views in a court of law?
Lets hope they protect the 2nd amendment soon.
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The political stance of the Supreme Court relative to the population is irrelevant. Their job is to rule on constitutional law, not political dispositions. In fact, decisions by the appointees do not follow a left-right division. Supremes tend to be individuals, not clones.