The Supreme Court, bastion of conservatism

[SeattleUte]

Originalism has its flaws, like any systematic method of interpreting the law. I'm not sure it is the best way to go about applying the law. But at least it is systematic. My biggest problem with the loudest critics of originalism is that they have no system at all. They typically work backwards from the result they want to see accomplished, which isn't an application of the law at all ... it is policy making. Some of them openly admit this.

I've seen some critics of originalism complaint that originalist judges do the same thing. They start with a preferred result and then dig up historical support, no matter how obscure, to support it. I agree that that has happened, but at least in those cases you have some objective criteria that you can judge the opinion by. If the great weight of historical authority goes against a particular decision, people can detect that and call it out.

When you have no objective criteria at all, there is no such thing as a bad legal decision ... only a bad result. In that case, judges become nothing but glorified super-legislators who are judged on the basis of their policy preferences and not their ability to apply the law as they should be. And if there is no one that will honestly apply the law, the law becomes meaningless.

No system at all? The process of developing an edifice of judicial interpretation incrementally evolving is a system, and elegant one. It’s even how it works with statutes, which are much more detailed and comprehensive than the Constitution. Surely you are aware that the UK doesn’t even have a written Constitution per se, but something akin to it exists in a quilt of judicial opinions on rights of the individual and the state.

Even the most controversial example, Roe, was rooted in the Constitution. The Court started with explicit rights, against arbitrary search and seizure, equal protection under the law, property rights, etc., and discerned a woman’s right of privacy to determine how and when to reproduce. How is that not systematic? It is more liberal than saying, “there’s nothing in there about privacy,” but it is not without system. This is a conservative canard. Is it any more principled to say that a right to privacy cannot be discerned from the explicit rights? Even the right against arbitrary search and seizure needs case law to filesh it out and give it teeth. Hence, the exclusionary rule. Same for the right not to self-incriminate; hence Miranda. Otherwise, the Constitution would provide nothing at all. There most emphatically is a system, and an elegant one.

[SeattleUte]

I’ve been reading up on the British constitution, which fascinates me because there is no document (like ours and
OST modern constitutions) that sets forth the fundamental duties of government and rights of its citizens.

The evolving, unwritten, English constitution and the common law is the legal tradition from which our constitution and legal system springs. I highly doubt the framers intended a rigid, immutable document and system. In fact, the survival of the Republic, IMO, likely dependent on reasoned, creative solutions, holdings, opinions, and institutions I. Order to gain a foothold and to inspire confidence in its formerly English citizens.

And while there is an amendment process, we have (from nearly the get-go) ceded to the judiciary the right to inch the law forward until it becomes a reflection of our collective ethos.

Ha. Great minds think alike. I made the comparison to the British situation before I read this. Good point!

[UVACoug]

No system at all? The process of developing an edifice of judicial interpretation incrementally evolving is a system, and elegant one. It’s even how it works with statutes, which are much more detailed and comprehensive than the Constitution. Surely you are aware that the UK doesn’t even have a written Constitution per se, but something akin to it exists in a quilt of judicial opinions on rights of the individual and the state.

Even the most controversial example, Roe, was rooted in the Constitution. The Court started with explicit rights against arbitrary search and seizure, equal protection under the law, property rights, etc., and discerned a woman’s right of privacy to determine how and when to reproduce. How is that not systematic? It is more liberal than saying, “there’s nothing in there about privacy,” but it is not without system. This is a conservative canard. Is it any more principled to say that a right to privacy cannot be discerned from the explicit rights? Even the right against arbitrary search and seizure needs case law to filesh it out and give it teeth. Hence, he exclusionary rule. There most emphatically is a system, and an elegant one.

You think the result in Roe was discerned from a systematic analysis of the Constitution? Really? Most ardent Roe defenders don't even claim that any more.

If there are no objective rules on how the law should be interpreted or applied, then the Constitution can be made to mean anything a majority on the Court wants it to mean. And in that case, we might as well not have a Constitution at all. Maybe reunification with the UK and its unwritten "living" Constitution is the way to go. Then we can just make it up as we go along like they do:

https://www.nytimes.com/2019/09/24/w...s-johnson.html

[Non Sequitur]

Except she just attended a campaign rally at the White House. Off to an amazing start.

I certainly hope there's a mitigating explanation, otherwise I take back every conciliatory I've said about her thus far.

[Moliere]

Except she just attended a campaign rally at the White House. Off to an amazing start.

I can’t find anything on this and I’d expect it to be big news. Care to share a link?

[Moliere]

So has ACB destroyed America yet?

I for one am glad that working mothers now have representation in the scotus. It’s about damn time. Even my liberal minded daughter thinks it’s cool that a mother with seven kids is a Supreme Court justice.

[Jeff Lebowski]

Except she just attended a campaign rally at the White House. Off to an amazing start.

This morning I saw a ton of people on twitter losing their minds over this, calling for her immediate impeachment, etc. so I watched the morning tv news shows and there was nothing about it. Zilch. Ditto for NYT, WaPo, and WSJ. I am guessing someone confused the swearing-in ceremony as a campaign rally and the twitter mobs ran with it. Fake news.

[SeattleUte]

You think the result in Roe was discerned from a systematic analysis of the Constitution? Really? Most ardent Roe defenders don't even claim that any more.

If there are no objective rules on how the law should be interpreted or applied, then the Constitution can be made to mean anything a majority on the Court wants it to mean. And in that case, we might as well not have a Constitution at all. Maybe reunification with the UK and its unwritten "living" Constitution is the way to go. Then we can just make it up as we go along like they do:

https://www.nytimes.com/2019/09/24/w...s-johnson.html

You are doing nothing but uttering truisms and sayings here.

[USUC]

This morning I saw a ton of people on twitter losing their minds over this, calling for her immediate impeachment, etc. so I watched the morning tv news shows and there was nothing about it. Zilch. Ditto for NYT, WaPo, and WSJ. I am guessing someone confused the swearing-in ceremony as a campaign rally and the twitter mobs ran with it. Fake news.

I think it was Chris Hayes from MSNBC that made a comment about it last night. He went straight Olberman last night.
https://twitter.com/SteveGuest/statu...723939329?s=19

[falafel]

My aunt is slowly sliding off a cliff with this election. She posted this today.

[Uncle Ted]

I think it was Chris Hayes from MSNBC that made a comment about it last night. He went straight Olberman last night.
https://twitter.com/SteveGuest/statu...723939329?s=19

LOL...

[UVACoug]

My aunt is slowly sliding off a cliff with this election. She posted this today.

She's going to get rid of preexisting conditions? Count me in for that one ... it would be amazing. She must be a witch doctor or something.

[Moliere]

My aunt is slowly sliding off a cliff with this election. She posted this today.

Glad to know that liberals are as good at fear mongering as conservatives.

[UVACoug]

You are doing nothing but uttering truisms and sayings here.

They're truisms because they're ... true. Do you disagree?

[Uncle Ted]

My aunt is slowly sliding off a cliff with this election. She posted this today.

Tell her not to worry... the Dems are planning to pack the court!* #ExpandTheCourt

*If they win.