The Supreme Court

[_subgenius]

oh, there was a question? please, do tell.

Yes. “Do you have a moral ground, or is that something restricted to others?”

that is actually 2 questions, but -
1. yes, i have moral ground.
2. no, moral ground is not restricted to others.

[_canpakes]

that is actually 2 questions, but -
1. yes, i have moral ground.
2. no, moral ground is not restricted to others.

And what do you base it on? Or, put another way, how do you derive or determine whatever you define as your morality?

[_DoubtingThomas]

Arguing partisanship is a sign of their lacking intelligence seems like a bad way to refute my belief you want to see authoritarian leaders who cut Gordon knots with ease whose rightness is recognized by how closely their rulings align with your assumed view of what is right and wrong.

My views? My views aren't my gospel, I change my mind frequently. I am always open to new evidence that contradicts my assumptions. I don't disagree with conservatives on everything and I don't agree with liberals on everything. The Supreme Court Justices are suppose to be open minded. Gymnastics doesn't make the Justices intelligent. Please share why you think the Justices are intelligent.

Now please note

The unfortunate truth is that such polarization will have dire consequences for the Court if it persists. Primarily, it raises questions about the legitimacy of the Court as the supposed “apolitical” branch of the government. If the justices remain this polarized, how can we possibly separate Constitutional law from normal politics? The framers of the Constitution intended the Court to be insulated from the chaotic politics that the consume the executive and legislative branches of government. This separation creates public respect for the Court as an authority on the Constitution and a body that can legitimately have the “final say” on some issues. Such respect is crucial, because, in the end, the Court has no real ability to enforce its decisions. It must rely on the executive to carry out its orders, and the legislature to acknowledge its supremacy. Faith in the Court is thus indispensable. Unfortunately, as a recent Gallup poll shows, that faith is on the decline. The amount of Americans who have have a “great deal” or “fair amount” of faith in the Court is at an all time low. Chief Justice Roberts himself has noted, “the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” As long as partisanship remains, public approval will only continue to drop, further damaging the Court’s reputation and belittling its authority.

https://stanfordpolitics.org/2016/01/07 ... eme-court/

[_Res Ipsa]

Arguing partisanship is a sign of their lacking intelligence seems like a bad way to refute my belief you want to see authoritarian leaders who cut Gordon knots with ease whose rightness is recognized by how closely their rulings align with your assumed view of what is right and wrong.

My views? My views aren't my gospel, I change my mind frequently. I am always open to new evidence that contradicts my assumptions. I don't disagree with conservatives on everything and I don't agree with liberals on everything. The Supreme Court Justices are suppose to be open minded. Gymnastics doesn't make the Justices intelligent. Please share why you think the Justices are intelligent.

A comment I saw said, "And this is what is wrong with America. Judges should judge on the facts, not beliefs or opinions. That their political or religious BELIEFS affect their judgements is so messed up"

That comment is so breathtakingly simplistic and naïve, it's hard to know where to even start. Okay, here goes. For a significant period of time, the prevailing model of jurisprudence looked something like this: it is possible to look at past judicial decisions and develop from them some general rules of applicability. Once those rules have been established, a judge can apply those rules to a given set of facts, which, if done properly, will lead to a single, correct outcome. In other words, the combination of specific facts and general rules will come together to lead to one and only one result. This model of jurisprudence is commonly referred to as legal positivism or legal formalism. https://en.wikipedia.org/wiki/Legal_positivism The case law method, prevalent in law schools, was structured along this model: students read cases, were led through Socratic dialog to extract the general principles, and then taught to apply the general principles to new fact patterns.

In the 1920s, a new school of legal thought arose that has been labeled "legal realism." https://en.wikipedia.org/wiki/Legal_realism Legal realism blew legal positivism to pieces, demonstrating that the combination of general rules and specific facts cannot dictate a single outcome. They, like you, proposed using objective scientific methods to study what it is that judges do and then predict the outcomes of cases based on that study.

In the '70s, law's version of postmodernism came along and both extended and demolished legal realism. It's known as Critical Legal Studies. Like legal realism, it employed critique to break down legal positivism. But it also applied postmodern critique to show that applying the scientific method to study what judges do and predict results was also an impossible and misguided approach. It denies the distinction between law and politics, approaching the decisions of judges as just another political decision. It's very much a critique from the political left.

My takeaway from all of this is that the notion that judges can decide cases without employing their beliefs and opinions is nonsensical. I'm thoroughly convinced, through the critique of the legal realists and CLS folks that the combination of facts and law do not dictate a single, correct result in most, if not all, cases. That means that judges must use "something else" to decide cases. And that something else is beliefs and opinions -- sometimes described in a fancy fashion as judicial philosophy or political philosophy That being the case, it's no surprise at all that Supreme Court Justices decide cases in a matter consistent with political beliefs. After all, the very reason they are nominated in the first place is that their political beliefs, as evidenced by their writings and judicial opinions, align with those of the President.

[_Dr. Shades]

Fair enough. It's what happens when I post on my phone while waiting for someone.

For DT -

Arguing that increasing partisanship on the court is a sign they lack intelligence seems like a bad way to refute my previously stated belief. That being, you would prefer an authoritarian decision maker or committee who cut through tough decisions like Alexander cutting through the Gordian Knot with ease. How closely their judgments align with your prior beliefs of what is right or wrong is still the measure you seem to use when determining if the court is flawed or not.

Ahh, that was MUCH clearer. . . and a pleasure to read, I might add.

Thank you for doing this.

[_DoubtingThomas]

My takeaway from all of this is that the notion that judges can decide cases without employing their beliefs and opinions is nonsensical. I'm thoroughly convinced, through the critique of the legal realists and CLS folks that the combination of facts and law do not dictate a single, correct result in most, if not all, cases. That means that judges must use "something else" to decide cases. And that something else is beliefs and opinions -- sometimes described in a fancy fashion as judicial philosophy or political philosophy That being the case, it's no surprise at all that Supreme Court Justices decide cases in a matter consistent with political beliefs. After all, the very reason they are nominated in the first place is that their political beliefs, as evidenced by their writings and judicial opinions, align with those of the President.

I understand that there are no objective facts in the world. The world is very messy and it is impossible to make perfect decisions. But I deleted the quote and pointed to the article published in Stanford Politics. There shouldn't be much room for political beliefs and opinions in the most powerful court in the world. We need Justices that can understand scientific studies, statistics, human psychology, medicine (for cases like Roe v. Wade), and economics. So what are your thoughts on the Stanford Politics article?

The unfortunate truth is that such polarization will have dire consequences for the Court if it persists. Primarily, it raises questions about the legitimacy of the Court as the supposed “apolitical” branch of the government. If the justices remain this polarized, how can we possibly separate Constitutional law from normal politics? The framers of the Constitution intended the Court to be insulated from the chaotic politics that the consume the executive and legislative branches of government. This separation creates public respect for the Court as an authority on the Constitution and a body that can legitimately have the “final say” on some issues. Such respect is crucial, because, in the end, the Court has no real ability to enforce its decisions. It must rely on the executive to carry out its orders, and the legislature to acknowledge its supremacy. Faith in the Court is thus indispensable. Unfortunately, as a recent Gallup poll shows, that faith is on the decline. The amount of Americans who have have a “great deal” or “fair amount” of faith in the Court is at an all time low. Chief Justice Roberts himself has noted, “the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” As long as partisanship remains, public approval will only continue to drop, further damaging the Court’s reputation and belittling its authority

Now I understand the Supreme Court is not all powerful (but it kind of is). I understand that Congress makes the law, not the court. However, the Supreme Court allowed Citizens United. Citizens United is destroying our democracy and the Supreme Court is responsible for it. It is very hard (or impossible) to challenge candidates that are getting millions of dollars.

[_DoubtingThomas]

Would you agree the constitution is ambiguous and there are many ways to read it? Is it really possible to read the minds of the founders for 21st America?

[_Res Ipsa]

I understand that there are no objective facts in the world. The world is very messy and it is impossible to make perfect decisions. But I deleted the quote and pointed to the article published in Stanford Politics. There shouldn't be much room for political beliefs and opinions in the most powerful court in the world. We need Justices that can understand scientific studies, statistics, human psychology, medicine (for cases like Roe v. Wade), and economics. So what are your thoughts on the Stanford Politics article?

Yes, we're all taught in civics or government class that the Supreme Court is supposed to be apolitical. But that's just nice sounding BS. The Supreme Court is political. It has always been political. The Justices cannot decide cases without relying on political beliefs and opinions. The devastating critiques of legal realism and CLS show, without question, that deciding cases cannot be done without using political beliefs and opinions. You're compiling that the Supreme Court isn't acting consistent with a fairy tale you've been told and accepted. But the problem isn't with the Court -- it's with the fairy tale.

So, we teach people a fairy tale about what the Supreme Court does and then blame the Court when the fairy tale turns out to be false. That's all the Stanford Journal article is saying. The cure isn't to close our eyes and pretend judges are doing something that they're not. The cure is to stop pretending.

You keep harping on the scientific issues like medicine for deciding Roe v. Wade. Tell me, how does medicine help one decide whether or under what the state should be allowed to use it's power to take money or liberty from its citizens if they terminate a pregnancy? Tell me which medical textbook I can look that one up in? Look all day or all year -- you won't find it. You won't find it because it's not a medical or scientific question -- it's a political question.

Your argument here always seems to boil down to: the Supreme Court decided a case in a way that I disagree with. Therefore, we need to change the institution so that it produces results that I like. But you don't have to change the system to get there at all: just appoint judges whose politics align with yours. Changing the institution itself isn't going to get you there because you have naïve and unrealistic expectations about what courts and judges can actually do.

[_Res Ipsa]

Would you agree the constitution is ambiguous and there are many ways to read it? Is it really possible to read the minds of the founders for 21st America?

That's another way of saying what I said above: Applying the general language of the Constitution (or principles derived from that language) to the facts of a specific case do not dictate a single result.

So, we have a two hundred year old blueprint for a government. How do you suggest we apply it to a particular set of facts?

[_EAllusion]

This isn't what you are discussing, but I have been deeply bothered by the extent to which Supreme Court decisions have turned on empirical questions where the justices got it flat wrong and obviously so. I'm not sure what the solution is, but it happens more often and more egregiously than what we have a right to expect.

To pick an issue seemingly dear to DT's heart, important precedents regarding the rights of sex offenders rest in part on Kennedy horribly sourcing a false idea about recidivism rates.