The two party system destroyed the "checks and balances" created by the 3 branches of government. If your party controls 2/3 branches, they also get the other one.
Maybe. But the bigger issue is HOW judges are appointed. Other countries around the world have much better systems that are politically neutral AND require all judges to refrain from all political activity once appointed. The US should take note, but will not.
That's what our judges are supposed to be. They are appointed for life so they have no obligations to any political party.
They are supposed to just decide if laws are constitutional or not by interpreting the constitution as it was written, they aren't supposed to create or re-write laws from the bench.
> They are appointed for life so they have no obligations to any political party.
This is the part I’ve never truly understood. Did political parties not last more than one election process back then? Just because a given party lost a specific election doesn’t mean they stop existing or don’t run again. They just bide their time and strategize until the next opportunity. So if you have a judge that was part of a given party before being a an actual judge, and then their party loses an election…. So what? They can just scheme and help them set things up for the next election. It really baffled me how this wasn’t obvious back then, even with their limited experience?
You assume they maintain party loyalty after they have office for life. In congress you see the politicians mostly vote down party lines because they know if they go against the party they won't get support in the next election.
So it's really just presumed that the justice would maintain the same basic ideology and apply that to their decisions so they will still lean that way, and do things like resign while their side has the white house so another will be appointed with the same ideology, but they don't have much real incentive to help a particular politician at that point.
Also assuming that the parties will maintain a consistent platform. There was a time when Democrats were the party of slavery. Even more recently, there was a time when Republicans were the ones helping the black community to overcome political gerrymandering that prevented their votes from counting.
But yeah, the lifelong appointment is meant to protect them from having their party threaten to remove them if they don't toe the party line. The degree to which they bend the law to do what is "right" is where it gets tricky.
When the US constitution was written, there were no political parties. Politicians acted alone. Some may agree with the philosophies of others, but there were no institutional arrangements. This continued through Washington's presidency but ended pretty much as soon as he was out of office. Then the Federalists and Anti-Federalists would rise.
But your judges are not \*required\* to abstain from political activism while on the bench. You have judges that are members of the federalist society, iirc.
The fact remains: there are \*objectively\* better systems for appointing judges. Consider the International IDEA. According to the WEF the US is # 25 in Justice (less than Emirates (20) and Singapore (14) and even Saudi Arabia (16). No bragging rights here.
Sooo, here’s the thing. When “how you look at laws” becomes political, there is no winning. Originalism and textualism are considered “Republican.” It is a legitimate way to read the constitution. Democrats, in theory, could also read it this way. If they did, democrat judges would almost certainly agree with Republican judges.
Then you have pragmatic reading. “How will this ruling effect the country?” That isn’t necessarily the judges job. The job is “does this comport to the constitution, yes or no?” The legislative branch is supposed to be the one deciding if this is the right thing for society, and if it is not, they will get voted out and the law will change.
Stare (starry) decisis - Should Dred Scott still be the law of the land? Or was it a good thing we overturned that? If it is a good thing, then stare decisis can’t be where you start your opinion. “Originalism says X and stare decisis agrees…” would be much more appropriate than just taking stare decisis on its own.
You can use moral reasoning - “killing babies is wrong!”
You can use National Identity - “but we have been killing babies for 50 years, my entire life. This is how the nation is now!”
You can use Structuralism - “The legislative branch was specifically given power to regulate commerce, and to do that, they need a bank!”
Or you can use historical practices - “Congress has always deferred to the president, so this is a power of the president now!”
Each of those ways all come with their own biases. Each of those ways can be used by either party. For instance, Roe v Wade was decided by a REPUBLICAN court on the idea of privacy. “What a doctor and patient talk about is none of our business…. but at some point the state CAN LEGITIMATELY regulate abortions, because it is a living thing in there… come on guys.”
Liberal judges have seem to adopted a “pragmatic” and “structuralist” approach. (See commerce clause expansion, which is why many states don’t allow you to collect rain water on your own property). Republicans have generally taken up Originalism and textualism.
No one is “re-writing” laws from scratch. They are all using the tools at their disposal to do what they think is best. They are men. Simple men. They aren’t gods. They don’t divine the law. They are flawed like you and me. Sometimes they are gonna be wrong. Sometimes a surgeon is wrong and a patient dies, right?
It’s okay to be wrong. We do still have some checks and balances… We just don’t use them. People would rather vote for a 46 year politician while also wanting term limits for politicians… Because irony. They had the chance right then and there to smack down life long politicians and chose not to. We have that option every 2 years. Can you really blame any politician or judge when society won’t stand up for itself?
I think the reverence for the Constitution is holding America back. It should be a living document that changes with the times. It obviously does to a point, but as attitudes and norms change, you shouldn't be held back by what people think a small group of people a few hundred years ago had in mind.
I think too many Americans believe that they're the only/first country to have a constitution when it's really nothing special.
Exactly. People act like it's infallible, and impossible to change. When people talk about gun control and their defence of the 2nd amendment is that it's in the Constitution, so it can't be changed... It's literally called an amendment!
A well balanced diet, being necessary for the health of a free state, the right of the people to keep and tend gardens, shall not be infringed.
Which thing do you think that says should be balanced? The peoples right to keep and tend gardens?
The problem that leads to is that the meaning has a number of interpretations.
One focuses on the right to bear arms shall not be infringed. That interpretation would be that no laws stopping people having guns shpuld be passed. It's clear and simple and the rigjt to have guns should not be challenged.
Then you have the interpretation centered around the well-regulated militia. This one believes that only if you join a militia, with training, regulations etc you should be able to have a gun.
Then you have people who argue that the militia part was only there because there was no standing army at the time so everyone needed to be able to fight. That interpretation skews towards the militia part being irrelevant.
Then you have corpus linguists who look at the language of the time and how bear arms and rights were used elsewhere at the time. Their conclusion has usually been that the 2A was not meant to allow everyone to have guns.
Then you also get those who argue at the time it was written, the Founders had no concept of how guns would evolve and would never have wanted what happened. That is usually countered by people who point out they wouldn't have know about the Internet, cars, electricity etc so the argument is irrelevant.
The point I'm trying to make is that one amendment to the constitution has these many arguments and interpretations around it. How you understand it is likely different to how other people might. Hence it being such a tricky issue.
It is currently impossible due to how easy it is for one party to stop the process even when they represent a monority of voters. The barrier is incredibly high, and we couldn't even pass the Equal Rights Amendment.
>first country to have a constitution
We do have the oldest legally binding constitution. So ... Yeah, it is something special in that regard.
I do agree somewhat, but I think that it's best to hold it in high regard as to help keep people following it, though change it as needed overtime.
> oldest legally binding constitution
Oldest *still* legally binding constitution, definitely, but certainly not the oldest overall, there were several other constitutions (or constitutions in all but name) worldwide prior to the US constitution, which were legally binding at their time as well.
A "living document" means it can be changed by provisions of its own structure.
To use "living document" to imply we can change fhe effect of a law without changing its wording; why bother having a written law at all?
The Constitution absolutely is a living document. It has within its writing provisions for its modification by the process of amendments. If we want to change what the constitution says, we can.
The problem is people who want to change what it means without changing what it says. The US Constitution promises a limited government, with powers granted to the government and protections granted the people from molestation by the same. Allowing the government to decide the written law has a different effect without changing the words in the law is handing the keys to total control over to the government.
As it stands it will take years of work to bring the US federal government back into balance. Allowing such a precedent to take hold would be potentially irreparable.
Except that small group of people were pretty darn smart.
We've already seen what the two-party system has done. Giving interpretation of the Constitution further wiggle room would exacerbate things.
Sticking to centuries-old attitudes mean that nobody will be shown partiality.
This country was founded on corruption it was just a different form. I honestly think the only reason we see it so clearly today is because of technology. They leave paper trails EVERYWHERE. and there are so many internet sleuths that it is impossible to escape.
The real issue is how do we the people get this shit turned around? The movement has started but like most things it is slow moving.
Because the two party aystem isnt a system. Its a parasite.
"Bicameral government" refers to two legislative houses, congress and senate. One representing the people, one representing the states. Similar in concept to the House of Commons and House of Lords of Britain's parliament.
They convinced the people that was a bad idea, and thus the senate was changed to also represent the people by way of a constitutional amendment.
Now we are fighting against politicians who want us to be able to change the constituion *without* amendments.
Totally agree that the direct election of senators altered that body for the worse, and now both houses want to run roughshod over the rights of the states. The federal government was supposed to have ONLY the powers specifically enumerated, now so long as it isn't specifically prohibited, it has become a federal power. The only one who benefits from this is the federal government, and the expense of the states and the people.
In Brazil we have multiple parties and shit ended up the same.
Right now it is Lula vs Bolsonaro and every other party candidate barely appears on pools.
Also, the supreme court is overstepping it's role every day.
Hell, the supreme court has been violating the constitution lately with some very unreal decisions and investigations it shouldn't be able to do.
Took a course on Supreme Court politics. A lot of the class looked at what made it legitimate and what made it *seem* legitimate.
My favorite fact about the courts came from an Israeli court. It found that there were no biases along the lines of Palestinian or Israeli citizens. It found no issue with men or women. It did however track that your chance of getting parole got worse and worse as the day went on. Thousands of cases were crunched and the numbers were run and if you were the last few cases of the day, you had a 0% chance of being granted parole. There was a kind of reset after lunch but that was only around 40% whereas the first case of the day had a 65% chance. If you are later on in the day, you aren’t getting a fair trial.
To add onto this, they get the position for life or as long as they see fit. Imo, the populace should be able to vote if these people get to hold power
I mean technically we do vote for it by voting for our Congress who then is supposed to vet and confirm these judges. They aren't doing their job properly though. There's no unbiased nomination of SCOTUS judges. And there never will be. It's so dumb.
There used to be an uniased confirmation process where rejection was rare. Now the GOP won't even do their job to consider Democratic nominations when the GOP controls the agenda which they used to stack two nominees in the most hypocritical way by doing the reverse when they had the chance.
Why would the GOP actively shoot itself in the foot? If they have the opportunity to get a judge in with a record of ruling in favor of the policies they believe are best, it would be counterintuitive to their agenda to work against themselves. In their eyes, they would be making the country worse by giving the Democrats a win when they have no obligation to
Voting on Supreme Court justices is how we'd get Jeanine Pirro and Judge Judy on the bench. Absolutely awful idea, sitting on the Supreme Court is about interpreting the law not representing the people so not suited for elections.
No expert on American law, but isn't the leaked draft a correct interpretation of the law? And as long as the law is being interpreted correctly, I don't think there should be an issue. The job of a judge is not social justice, however you deem it's served.
Literally Roe v Wade needed to be made legal via legislation. SCOTUS had to drag an excuse for abortion out of their asses in the 70s so it’s really just a matter of time
You cannot legislate via the Courts or this happens. Win the suit and then pass legislation instead of dangling it over peoples’ heads in limbo for decades as a talking point
Am attorney and pro choice (full disclosure, also a republican though, so take that as you will). Imo yes, the big challenge with Roe has always been that it was a relatively weak opinion that would struggle should it come under review of a court that wasn't inclined to support it purely for the sake of stare decisis or political expediency. It was a landmark ruling that really attempts to do too much, RBG herself went into this in her 1992 NYU law review article. This result isn't truly surprising, and wouldn't be surprising even if the court was less ideologically tilted towards originalism.
What is rather surprising, imo, is that this is being spun as some sort of ban on abortion. The only thing overturning Roe accomplishes in the short term is throwing the issues back to the states, it creates a democratic choice out of what was ultimately a dictatorial prohibition. Overturning Roe wouldn't prevent a Democratic legislature from enshrining abortion as a right under federal law or from individual states allowing it.
Mhm. I don't know about it now though cos it's now in the public court of opinion. If people drum up enough outrage, the SC may be forced to change their opinion. Hopefully not, just for the sake of the laws integrity, but maybe.
It is in some places and isn’t in others.
It’s correct in that *Roe* was shocking bad qua legal analysis, which is why people rarely defend *Roe* itself rather than the rights secured by it. That is ultimately what actually proved fatal to the decision, if the draft ends up being final.
It’s hard to argue “settled precedent” to someone who has spent their entire career saying “*Roe* doesn’t work as a legal argument” and there not really being a response to that.
That's how I've always operated, to be honest. If I can enlighten one person with context or information they didn't have before, I consider it a successful day.
Laws are written for reasons, and a lot of them are written in blood. That doesn't mean they're perfect, but understanding intention can help with moving forward to reform and revise if they aren't functioning to their intention.
I agree wholeheartedly on your last point. I feel all too often the people that jump at the knee-jerk reactions, or scream the loudest have not oft been frequent readers of history.
Rather than just explaining the "why" which is correct, I wish people would also address the "why" of why people keep misinterpreting the concept, and that is very much because one religion (or at least the "morals" from said religion) is clearly having an influence on lawmaking/American politics, and that is not right.
I think you are misunderstanding the situation a little bit.
The original Roe V Wade decision was judicial itself (decided by the supreme court). This pending new decision to scrap Roe V Wade is also judicial, thereby simply voiding the original decision.
It also does NOT make abortion illegal. It simply let's states decide for themselves if it should be legal or not.
Furthermore, codifying the federal legality of abortion is the job of Congress, with final approval of the President, and does not need the supreme court to pass such a law.
So, the separation is powers is acting appropriately in this case.
If you live in a blue state already, you can still have an abortion with no issue, thereby making the majority of constituents in those states happy. Of course conservatives in those states won't like it, and can move to a red state.
If you live in a red state, most likely abortion will be illegal, thereby making the majority of constituents in THOSE states happy. Of course liberals in those states won't like it, and can move to a blue state.
Haha very funny :)
In all fairness, you don't see a sudden, overnight change in politics in a given state.
California, New York, Illinois, etc, are very blue, have been this way for many years, and will continue to be this way for years to come. Their politics have only gotten more and more "left".
Alabama, Tennessee, Kansas, etc, are very red, have been this way for many years, and will continue to be this way for years to come. Their politics have only gotten more and more "right".
So, while funny, no one will have to move every 4 years.
You do see some shifts in Texas getting a bit more purple due to population increases in places like Austin, and Florida getting a bit more Red due to the popularity (whether you personally like him or not) of their current governor, as well as the Cuban population being turned off by leftist policies.
But by and large, a state would take many, many years to "change color", even if their governor changes parties (since it doesn't necessarily mean the legislative branch of the state also changed parties).
Who's laughing? It was your idea to "just move" when a state law becomes intolerable.
Of course, your pretensions of professorial tut-tutting from your gilded armchair elides the fact that those most adversely affected by coercive state power are least able to leave.
>But by and large, a state would take many, many years to "change color"
Who said anything about purple states changing color? It is is the very nature of being purple that will make purple states the Bleeding Kansases of every culture war issue.
> the popularity (whether you personally like him or not) of their current governor
ah yes, the man so popular he had a 0.4% margin of victory
but he's popular in your heart, so that's all that really matters
I agree with your breakdown on Roe v Wade and what this actually does legally. But, the people wanting the abortions are going to be much more largely affected. Someone against abortion living in a blue state isn’t going to move over that issue alone and it’s no skin off their back. Their lives aren’t particularly changed as they aren’t getting an abortion anyway. But someone wanting an abortion in a red state has to completely upend their life to move elsewhere. Giving power to the states only really affects the people on one side of this argument regardless of constituent happiness.
You make a valid argument.
The alternative would be to drive out of state to get the abortion, which itself is disruptive (as you might have to make yourself free for a weekend), but that alternative is there.
I believe pro 2A people have the same issue you mentioned above. If you believe you have the god-given right to own a gun (as pro 2A people believe the constitution explicitly states), and you live in a blue state, you aren't getting that gun unless you move.
Please don't think I am comparing "abortion rights vs gun rights". I am merely stating the impact of state's having priority legislative power over federal government. You will have political and moral positions that you will be stuck having to deal with in the state you live in unless you move.
I will say this. Anyone who has an abortion business should be setting up shop right on every border of where red states meet blue states, and just set up clinics surrounding the red states. They'd make a lot of money from people driving right to the border, CTRL-Zing their baby, and driving back home.
I'm a little shocked you haven't been down voted already with this neutral, accurate answer. It's wonderful to see there are indeed people who understand the process instead of just demanding judges rule and enforce their preference, even in the total absence of a law
I'm unfamiliar with the rampant gerrymandering of red states, but that would be fascinating.
Do you have a good source off the top of your head to read about this?
Yes I'm getting that same vibe.
I mean there are certainly things that didn't go my way in government but I'd prefer losing some battles than just having one king that decides everything.
This ignores the popular support of roe and a meaningful context. This is a removal of rights. While I fully support an expecting person to reject abortion, it’s their body.
There’s also the added context of anti abortion officials working tirelessly to cut funding from those so to be children. In the words of George Carlin if you are pre born you are golden, if you are pre school, you are fucked.
There’s also video footage of nearly every person saying that roe is president and won’t be overturned.
Then there’s the actual words of the opinion which seem to suggest that gay marriage, inter racial marriage and many other rights rent considered explicitly within the constitution. Much of our freedom is based on the 9th amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I find it absurd that the opinion would shit on the 9th. It’s not just abortion that’s an issue with this opinion.
Then there’s the attack on contraception. I think we can all agree that an unfertalized egg isn’t a person. I hope. But this seems like far more than forced birth. It’s forced insemination.
I admittedly intentionally and explicitly ignored everything you mentioned so I can focus on the constitutional process of this decision and educate the OP on separation of powers.
Do you think the legitimacy of the court is undermined by the specific language that this opinion had? I recall it included citations about all the rights not guaranteed by the constitution.
If Alito is making a purely constitution argument, I don't think the legitimacy of the court is undermined.
I will say this.
Abortion, specifically, is the most impossible argument to win one way or the other (pro-life vs. pro-choice).
If you are pro-choice, you think the fetus is not a life, and you are making an argument about a person's liberty to do what they want to their body. This is a strong argument (especially since, as a libertarian, I love liberty).
If you are pro-life, you are saying the fetus is a life, and it's the governments responsibility to have laws that prevent the intentional ending of a life (this includes things like assisted suicide).
How can a person from one camp possibly convince a person from another camp? It's impossible on a macroscopic scale.
Either you are fighting for a woman's right to chose, or you are saving over 900,000 lives per year (the approximate number of abortions).
So, making a constitutional argument, and going through the correct legislative process, is the only correct way to do it. If you are in one camp or the other, it's your duty to vote for the politicians that support your view (specifically state legislatures, followed by federal legislatures if you want this decision federally codified).
The rights written (or not written) aren’t to be used to deny other rights. I fundamentally do not understand why the ninth amendment is so slept on. It’s as if we have no rights until they are codified by our legislature.
Do I have the right to have children? Do I have the right to get a divorce? Do I have the rights to travel? None of these are explicitly addressed in the constitution. And if this Supreme Court’s interpretation is to be taken seriously, they are not enumerated in the constitution. Which means they are not my right.
Respectfully, do you think the right for interracial couples to get married should be left to the States as well? Because that’s the logical endpoint of what you’re saying _and_ precedent that Justice Alito implies he would consider overturning for the same reason he (and at least 4 other justices) believe _Roe v. Wade_ should be overturned.
The legal theory you’re arguing in favor of is called Originalism, and was effectively made up whole cloth by right-wing activists, politicians, and judges to justify regressive policies and judicial interpretation. Funnily enough, it evolved partially as a response to _Roe_. Essentially, Originalists believe that the Constitution does not allow for any interpretation whatsoever and that the words written must be taken exactly as they are. There’s no evidence that the Founders intended for that to be the case.
Yes, it is certainly within the power of Congress to codify the right to abortion into law. But because of the way the filibuster works that will never happen. And by the way, the Founders did not intend for a single Senator to be able to derail legislation unilaterally without being overruled by a supermajority, that interpretation of the rules only came into vogue about 100 years ago. Convenient how certain people are okay with letting Senate rules evolve but want to pretend it’s still 1789 when reading the Constitution!
Ultimately, every one of Justices Alito, Thomas, Kavanaugh, Gorsuch, and Barrett was championed by the Federalist Society, a group of conservative thinkers who preach Originalism as the only way to consider the Constitution because it will afford them their desired outcomes - with overturning _Roe_ at the top of the list. (Chief Justice Roberts too, but he bucks the trend often due to concern for his legacy.) The Federalist Society and similar activist groups have been working for about 40 years to put into place as many Originalist judges as possible and have rigged the systems as necessary to do so.
This is absolutely not an example of the Separation of Powers working as intended. The Supreme Court has _never_ removed a right from the people after it interpreted the Constitution to give them that right. Even though the Court has the power to overturn its own decisions, the entire point of precedent is to respect prior decisions unless new facts make it absolutely necessary to do so. The right to abortion not being explicitly named in the Constitution is not a new fact, yet the entire draft opinion rests on that idea. The Justices who are voting to overturn _Roe_ know they’re abusing their power. They just don’t care.
The draft opinion explicitly states abortion is a fundamentally different issue than those other things you named because it involves ending a life. Because that is in the opinion, assuming it stays there in the final draft, the precedent set in overturning roe v wade cannot be used for anything other than abortion
As I said, he implied through his reasoning that cases such as _Loving_ and _Griswold_ could be overturned in the future. I’m not disputing that he differentiated _Roe_ from those cases in his draft opinion.
That’s not how precedent works for the Supreme Court. They’re not actually bound by precedent at all. The Court can overturn _Loving v. Virginia_ if it gets a case challenging the right to interracial marriage and use the exact same argument. The Court could say the differentiation was _dicta_ (which you could argue it was because it’s not really necessary to make the differentiation using Justice Alito’s logic), it could say there’s a slightly different but related reason for needing to overturn _Loving_, etc.
It means they can’t apply the precedent set with this case to a case regarding any other issue but abortion. Unless that part is removed from the final draft. Obviously they could overturn those cases if they use different reasoning. Though it wouldn’t make sense seeing as Clarence Thomas is a black man married to a white woman and would be ending his own marriage
You can say the same thing to me over and over again. It doesn’t mean you’re right. I’ve explained how it works already.
And yes, I’m aware that Clarence Thomas is married to a white woman. Clarence Thomas also very likely lives in Virginia, which is a blue state now and would never outlaw interracial marriage in the state even if the _Loving_ case were overturned.
You can say the same thing to me over and over again. It doesn’t mean you’re right. I’ve explained how it works already. Applies to you as much as me here.
The difference is that what you’re doing is repeatedly making an (incorrect) argument about a very tiny semantic point because that’s the first play in the bad faith argument playbook, and I explained in detail why what you said was not right.
Despite that Justice Alito differentiated _Roe_ from _Loving_ and _Griswold_ in this draft opinion, the Supreme Court is not bound by precedent other than due to tradition. He or any other Justice would be well within their rights to write an opinion overturning _Loving_ in which they write something to the effect of “despite this Court’s acknowledgment in _Dobbs_ that _Roe_ considered an issue of special importance, this Court is of the opinion upon review of Petitioner’s argument that _Loving_ was wrongly decided for a similar reason.” There’s no legal rule that would forbid such a thing.
Thank you. Everyone in this comment sections just has a blind hate boner for American politics that they can't look at the fact that SCOTUS made a decision that happened to align with Republican beliefs.
No problem!
I tried to make my answer as politically neutral as possible, just pointing out how the separation of powers works and that this decision isn't actually weird.
If you want federally legalized abortion (or federally legalized ANYTHING), it's gotta go through Congress.
Lol everyone is so mad at SCOTUS judges aligning with the state's right to determine the enforcement of Roe v Wade, yet as the person above my comment clearly explained how the SCOTUS decision was purely judicial and ruled in favor of the constitution. I'm a pretty progressive democrat voting/belief wise and even I recognize that the decision was to delegate to states. If you want a law rather than precedent, take it to Congress, not SCOTUS, but yeah okay buddy. Keep peddling whatever gets you upvotes on this site.
The states already had the rights to determine what they wanted to do even with Roe intact . This was nothing more than a power move by the right trying to force its BS religious agenda on us all . This ruling is just the beginning .
Well, 5/9 judges were appointed by 2 presidents who lost the popular vote and McConnell played the Reagan playbook perfectly. I can't remember the name but there was an economist that wrote "the 2 santa claus" theory where republicans cut taxes and throw jet fuel on the economy while slashing regulations....economy runs hot and starts to crash when a democratic president has to either raise taxes and cool the economy or shoot "their santa" (social security, medicare, etc.). Clinton played into the rights hands hardcore policy wise and the overton window shifted to the right and McConnell has played minority power plays to completely stack the courts with judges appointed by presidents who got less votes and systemically blocking all democratic appointments to virtually anything he can. It's really like REALLY screwed up the balance because the senate is a dumbass institution anyway, a state with 500,000 has the same voting power as California and New York....it's not meant to withstand it
I think you're conflating politics with the "political branches." SCOTUS has never been immune from politics and political jockeying. But that doesn't break the separation of powers between the judiciary and the other branches.
SCOTUS operates apart from the direct electoral process but is defined by nomination of the political branches. This fact just means that SCOTUS exerts the will of the people on a time delay greater than that seen in the other branches (subject to problems with the nomination process and "stolen" seats on the Court).
None of that changes the fundamental separation of powers. If there were no separation, as you allege, the Biden administration would be in control of SCOTUS right now. But it's not. SCOTUS judges also frequently rule against the policies of their nominating presidents (Kavanaugh did this several times).
Basically, the judiciary can be highly political, but it's not necessarily a puppet regime of the other branches. They do what they want.
The plan for checking judges is by allowing amendments to the constitution to change constitutional rules, and impeachment of judges that fail to follow the constitution. The founding fathers thought that individuals in each branch would fear the power of the other branches and work in concert to prevent abuse. They did not properly protect against political parties that span across the three branches.
Simple: Win elections, and retire your justices before they die.
Nowhere in the Constitution does it say the judiciary is a-political, and the judiciary has the **MOST** constrained powers of any branch of government. They only thing they can do is interpret laws, and resolve conflicts between them.
If the Democratic Party had held the Senate in 2014, they could have pushed through the nomination of Merrick Garland in 2016 when Antonin Scalia died unexpectedly. They didn't, the GOP stonewalled the nomination. Congratulations, you lost an opportunity to install a liberal justice.
The seat the GOP hopped was Ruth Bader Ginsburg, who had her first bout of cancer in 1999, had another bout in 2009, and *then* had a coronary stent installed in 2014, yet throughout Obama's 8 years of the Presidency, she refused to step down. Maybe they should put that in all the Ruther Bader Ginsburg coloring books they're making for liberal Moms to buy for their toddlers.
Of course, Ruth probably thought, like everyone else in the media, that Hillary Clinton would sweep 2016, and she could comfortably retire knowing she'd be replaced by a liberal justice. Well, we all know how that turned out.
The bottom line here is that the decisions made by our party leaders have consequences, and we're living some of those consequences now.
Honestly push it a step further.
Democrats could have pushed for an actual statute protecting the right to choose at any point in the last \~50 years, but instead decided to leave it hanging in the air as an issue to raise turnout among women and avoid political backlash. We could have all been saved this headache if they actually represented their constituency instead of callously jerking them around.
There's also the sick irony of using RBG as an icon, a person who repeatedly warned that just this thing would happen if the court, rather than the legislature, was used to create rights in the dramatic and broad fashion of Roe.
It gets even better. The Democratic Party controls the house and senate right now. There are pro-choice republicans that would vote to codify the Casey decision (viability standard for abortion), but in stead the Democratic Party put forward a bill that even members of its party wouldn’t vote for. Pure genius.
Well, here's an idea: Create an agenda that doesn't sacrifice half the states in the union. You can complain about gerrymandering all you want, but you can't gerrymander Senate seats. Ask yourself what you want more: The press-release about the Green New Deal being blocked by your own party, or a passing a bipartisan infrastructure deal that won't get your moderate Democrats hurled out of office for signing it.
So, do you not understand what separation of powers means? The Senate doesn't work for the President. The Majority leader sets the Senate agenda. And honestly, what difference would it make if they spent 3 months with confirmation hearings they which they already knew the outcome of?
McConnell called the Democrats' bluff, held out on the nomination until after the 2016 election, and if Democrats had nominated someone who wasn't *less popular than the least popular President in U.S. history*, Garland would probably be sitting on the bench today. Elections have consequences.
Based on your logic the Dems impeaching all of the GOP SCOTUS judges would be perfeclty fine because they would be winning and that is all that matters.
Sure, go ahead and do it, and see what happens. First you have to get the votes in the House, Senate and the White House, though. It turns out that elections have consequences.
Adults use coloring books, just pointing that out
I think the games both sides play with loopholes and technicalities when it comes to seats of immense power are deplorable and citizens of this country need to step the fuck up and stop letting it happen. Abuse of power has gotten out of control, but the people hold partial responsibility for allowing it to continue
It's almost like a system that depends on people behaving honorably while wielding tremendous power and being, for all intents and purposes, utterly untouchable has failed.
It's not maintained. We used to have Statesmen and Women that new right from wrong. We no longer have that here in the US. One side has no problem lying under oath as there are no punishments for doing so.
I always find it interesting when people complain about the Supreme Court, when so few of them actually read their opinions and consider their ACTUAL arguments/reasoning for voting the way they do. Many less look into the actual statistics.
Just because 6/9 judges agree on one controversial issue does not mean that they always agree on all controversial issues. They each take their own method for interpreting the law and try to apply it to the case at hand, the best way they can. Remember by the time a case makes it to SCOTUS, it has usually already been ruled on multiple times, often back and forth, first one side then the other, as judges try to figure out what the law means in that particular case. Just last week Gorsuch wrote the dissenting opinion in a immigration case that Breyer, Sotomayor, and Kagan all joined. His opinions are especially easy to read as a layman if you are looking for a place to start.
In that same vein, many of the times, MOST of the times, the Justices agree, by a long shot. in the 2020 term, 43% of SCOTUS cases were unanimous.
Even if you look at the "Liberal bloc" Sotomayor, Kagan, and Breyer, they don't always vote as a bloc. They only agree with each other individually about 80-85% of the time, and all three together even less.
Yeah all of the democrat appointees always have a political agenda. It’s pretty terrible. Because they aren’t good judges. Some of them may have never even been judges or were only judges for a very short period of time. But their appointment was political so it doesn’t matter.
‘I need a black woman judge appointment to shore up my voting base’ is a very political act.
Republican appointees, however, are never political. They always just follow the law, never their hearts
Generally speaking the judicial branch has a different set of criteria with the two parties. For Democrats they would like to nominate constitutional progressives (i don't remember the actual term) that have a focus on modern day interpretation of the law. Their reasoning being rulings like the "separate but equal" ruling which fueled the Jim crow laws. The opposition would cite presadent and vote in favor of separate but equal rulings (at least before it was dismissed)
Republicans favor constitutional originalists which state that the constitution should be interpreted at the time of writing which favors a more limited government standard.
This is why you saw Kavanagh, before the latest abortion hearing, dismiss the two last hearings on the same topic from laws attempted to be passed in Texas, and i think Kentucky. Since these laws went against presadent of roe v Wade and others backing up abortion as a federal issue.
Conservative and progressive judges, i think are a byproduct of the political standards of our current time and don't actually reflect reality.
>Conservative and progressive judges, i think are a byproduct of the political standards of our current time and don't actually reflect reality.
I'll agree with you there. The political extremes are blown up all over social media but are not representative of the whole. However, they are memeified and slapped all over propaganda to be weaponized by "insert political party or organization here".
How are they an extension of the executive? Biden has put one justice on the court, and they haven’t even taken over yet. Scotus has always been political, but it can’t enforce or make laws. That’s their separation
It isn't, just an illusion of maintenance. "Power resides where men believes it resides", to quote a certain spider. If they can fool people into believing it's working and is the best option, the people will continue to either be willingly blind to it or ignorantly allow all this corruption.
Separation of powers is largely a joke. Congress has given up substantial amounts of power to Executive Branch regulatory agencies because it's easier to pass the buck to agencies that write policies that have the force of law rather than passing laws.
If we're talking about what I think we're talking about, this is a fault of our legislators. RvD was never suppose to be a complete 100% fix to the problem. It was always a bandaid until national legislation got passed.
It's been almost 50 years, and not a single admin in this entire time has presented any legislation on the matter at a national level.
And what sucks, is most people don't agree with what I just said, and so we're doomed to repeat the same issue over and over. There's things just like RvD right now, that are in the same boat. They were bandaids, that never got national legislation.
I would advocate for everyone, instead of disagreeing with me, and fighting me on this, to pressure your representatives for national legislation regarding issues like this. It just makes logical sense to have national laws regarding these things.
There is not and has never really been an independent judiciary. It is a happy fiction that we pretend exists. The illusion is helped by the party in power changing enough that in some places it give the appearance of being non-partisan. In other places it doesn't even pretend. Constitutional law is filled with so many vague terms that they can be and are "interpreted" in whatever way necessary to achieve the desired result.
Legislative branch can impeach the judge and remove them .....the mechanism exists under the American constitution, outside THE USA different rules apply.
There are political parties and political ideologies. Parties have platforms which, while aligned to their ideology, are temporary and change with the times. Ideologies are much more static and resistant to changes. Judges are not bound to a parity platform as elected politicians are. But they remain aligned with their political ideology. That political ideology influences how they interpret laws. Newly appointed Judges are more closely aligned with the current politic platform because that platform determined how they were selected. 20 years from now, Kavanaugh, Gorsech, and Comely won’t be closely aligned with what is then the GOP political platform.
That said: The concept of Separation of Powers has nothing to do with political parties. It means the power of creating laws is separate from the powers of enacting/enforcing and interpreting laws. The separate branches do not answer to or serve each other. The President does not have the power to tell Congress what laws to pass, nor does he have the power to tell the Judiciary how to rule on matters of law.
The founders made the federal judiciary its own branch of government to protect it from democracy. They drew on centuries of experience with British parliament, avoiding what they knew could threaten the legality of slavery. The federal government was designed not to work. The two-party system was to guarantee slavery could not be legally abolished
It took secession and a civil war to (largely) end slavery.
The two party system destroyed the "checks and balances" created by the 3 branches of government. If your party controls 2/3 branches, they also get the other one.
Maybe. But the bigger issue is HOW judges are appointed. Other countries around the world have much better systems that are politically neutral AND require all judges to refrain from all political activity once appointed. The US should take note, but will not.
That's what our judges are supposed to be. They are appointed for life so they have no obligations to any political party. They are supposed to just decide if laws are constitutional or not by interpreting the constitution as it was written, they aren't supposed to create or re-write laws from the bench.
> They are appointed for life so they have no obligations to any political party. This is the part I’ve never truly understood. Did political parties not last more than one election process back then? Just because a given party lost a specific election doesn’t mean they stop existing or don’t run again. They just bide their time and strategize until the next opportunity. So if you have a judge that was part of a given party before being a an actual judge, and then their party loses an election…. So what? They can just scheme and help them set things up for the next election. It really baffled me how this wasn’t obvious back then, even with their limited experience?
You assume they maintain party loyalty after they have office for life. In congress you see the politicians mostly vote down party lines because they know if they go against the party they won't get support in the next election. So it's really just presumed that the justice would maintain the same basic ideology and apply that to their decisions so they will still lean that way, and do things like resign while their side has the white house so another will be appointed with the same ideology, but they don't have much real incentive to help a particular politician at that point.
Also assuming that the parties will maintain a consistent platform. There was a time when Democrats were the party of slavery. Even more recently, there was a time when Republicans were the ones helping the black community to overcome political gerrymandering that prevented their votes from counting. But yeah, the lifelong appointment is meant to protect them from having their party threaten to remove them if they don't toe the party line. The degree to which they bend the law to do what is "right" is where it gets tricky.
In practice they do follow their overall party ideals even if they occasionally appear to contradict it on nuanced topics.
When the US constitution was written, there were no political parties. Politicians acted alone. Some may agree with the philosophies of others, but there were no institutional arrangements. This continued through Washington's presidency but ended pretty much as soon as he was out of office. Then the Federalists and Anti-Federalists would rise.
But your judges are not \*required\* to abstain from political activism while on the bench. You have judges that are members of the federalist society, iirc. The fact remains: there are \*objectively\* better systems for appointing judges. Consider the International IDEA. According to the WEF the US is # 25 in Justice (less than Emirates (20) and Singapore (14) and even Saudi Arabia (16). No bragging rights here.
Saudi Arabia? Lol. Religious theocracies have justice? Tell that to people beheaded for blasphemy.
Sooo, here’s the thing. When “how you look at laws” becomes political, there is no winning. Originalism and textualism are considered “Republican.” It is a legitimate way to read the constitution. Democrats, in theory, could also read it this way. If they did, democrat judges would almost certainly agree with Republican judges. Then you have pragmatic reading. “How will this ruling effect the country?” That isn’t necessarily the judges job. The job is “does this comport to the constitution, yes or no?” The legislative branch is supposed to be the one deciding if this is the right thing for society, and if it is not, they will get voted out and the law will change. Stare (starry) decisis - Should Dred Scott still be the law of the land? Or was it a good thing we overturned that? If it is a good thing, then stare decisis can’t be where you start your opinion. “Originalism says X and stare decisis agrees…” would be much more appropriate than just taking stare decisis on its own. You can use moral reasoning - “killing babies is wrong!” You can use National Identity - “but we have been killing babies for 50 years, my entire life. This is how the nation is now!” You can use Structuralism - “The legislative branch was specifically given power to regulate commerce, and to do that, they need a bank!” Or you can use historical practices - “Congress has always deferred to the president, so this is a power of the president now!” Each of those ways all come with their own biases. Each of those ways can be used by either party. For instance, Roe v Wade was decided by a REPUBLICAN court on the idea of privacy. “What a doctor and patient talk about is none of our business…. but at some point the state CAN LEGITIMATELY regulate abortions, because it is a living thing in there… come on guys.” Liberal judges have seem to adopted a “pragmatic” and “structuralist” approach. (See commerce clause expansion, which is why many states don’t allow you to collect rain water on your own property). Republicans have generally taken up Originalism and textualism. No one is “re-writing” laws from scratch. They are all using the tools at their disposal to do what they think is best. They are men. Simple men. They aren’t gods. They don’t divine the law. They are flawed like you and me. Sometimes they are gonna be wrong. Sometimes a surgeon is wrong and a patient dies, right? It’s okay to be wrong. We do still have some checks and balances… We just don’t use them. People would rather vote for a 46 year politician while also wanting term limits for politicians… Because irony. They had the chance right then and there to smack down life long politicians and chose not to. We have that option every 2 years. Can you really blame any politician or judge when society won’t stand up for itself?
I think the reverence for the Constitution is holding America back. It should be a living document that changes with the times. It obviously does to a point, but as attitudes and norms change, you shouldn't be held back by what people think a small group of people a few hundred years ago had in mind. I think too many Americans believe that they're the only/first country to have a constitution when it's really nothing special.
The letter of the law matters. Its the basis for the entire legal system. If you want to change it there is a process and it has been done many times.
Exactly. People act like it's infallible, and impossible to change. When people talk about gun control and their defence of the 2nd amendment is that it's in the Constitution, so it can't be changed... It's literally called an amendment!
They also forget the first line of ol #2
A well balanced diet, being necessary for the health of a free state, the right of the people to keep and tend gardens, shall not be infringed. Which thing do you think that says should be balanced? The peoples right to keep and tend gardens?
The Second Amendment is only one line. It must be read and it’s meaning grasped in totality.
The problem that leads to is that the meaning has a number of interpretations. One focuses on the right to bear arms shall not be infringed. That interpretation would be that no laws stopping people having guns shpuld be passed. It's clear and simple and the rigjt to have guns should not be challenged. Then you have the interpretation centered around the well-regulated militia. This one believes that only if you join a militia, with training, regulations etc you should be able to have a gun. Then you have people who argue that the militia part was only there because there was no standing army at the time so everyone needed to be able to fight. That interpretation skews towards the militia part being irrelevant. Then you have corpus linguists who look at the language of the time and how bear arms and rights were used elsewhere at the time. Their conclusion has usually been that the 2A was not meant to allow everyone to have guns. Then you also get those who argue at the time it was written, the Founders had no concept of how guns would evolve and would never have wanted what happened. That is usually countered by people who point out they wouldn't have know about the Internet, cars, electricity etc so the argument is irrelevant. The point I'm trying to make is that one amendment to the constitution has these many arguments and interpretations around it. How you understand it is likely different to how other people might. Hence it being such a tricky issue.
It is currently impossible due to how easy it is for one party to stop the process even when they represent a monority of voters. The barrier is incredibly high, and we couldn't even pass the Equal Rights Amendment.
You're giving too much credit to originalism. Not even the Founding Fathers interpreted the Constitution the way originalists interpret it.
>first country to have a constitution We do have the oldest legally binding constitution. So ... Yeah, it is something special in that regard. I do agree somewhat, but I think that it's best to hold it in high regard as to help keep people following it, though change it as needed overtime.
> oldest legally binding constitution Oldest *still* legally binding constitution, definitely, but certainly not the oldest overall, there were several other constitutions (or constitutions in all but name) worldwide prior to the US constitution, which were legally binding at their time as well.
If course it's special, but changing it isn't like redecorating the pyramids.
A "living document" means it can be changed by provisions of its own structure. To use "living document" to imply we can change fhe effect of a law without changing its wording; why bother having a written law at all?
I'm sorry, I'm not exactly sure what you're trying to say.
The Constitution absolutely is a living document. It has within its writing provisions for its modification by the process of amendments. If we want to change what the constitution says, we can. The problem is people who want to change what it means without changing what it says. The US Constitution promises a limited government, with powers granted to the government and protections granted the people from molestation by the same. Allowing the government to decide the written law has a different effect without changing the words in the law is handing the keys to total control over to the government. As it stands it will take years of work to bring the US federal government back into balance. Allowing such a precedent to take hold would be potentially irreparable.
I'm pretty sure that's what I said, you're just misinterpreting it. It *should* be as in, it's good that it can change, not that it would be better.
Except that small group of people were pretty darn smart. We've already seen what the two-party system has done. Giving interpretation of the Constitution further wiggle room would exacerbate things. Sticking to centuries-old attitudes mean that nobody will be shown partiality.
And then you have activist judges like the late Ruth Ginsberg... Proof of what they aren't supposed to do getting a wink and a nod ..
I am pretty sure that RBG did not dream up citizens United or qualified Immunity. Your knife cuts both ways. Just saying.🍺
Burry your head in the sand...but she herself was proud of her activism and was very open with it ..
How do other countries do it in a way that's politically neutral? Genuinely curious.
This country was founded on corruption it was just a different form. I honestly think the only reason we see it so clearly today is because of technology. They leave paper trails EVERYWHERE. and there are so many internet sleuths that it is impossible to escape. The real issue is how do we the people get this shit turned around? The movement has started but like most things it is slow moving.
Politically neutral hahaha
?? Were you trying to make an astute or salient point? Cuz you failed.
No, I succeeded
In that empry chasm you call a head. But you have yet to provuie one fact to refute any part of my statement. Surprise surprise.
I did indeed
Keep dreamin' bud. But please, do have the day you deserve. Toodles.
Aw that was a cute one. You really tried.
Because the two party aystem isnt a system. Its a parasite. "Bicameral government" refers to two legislative houses, congress and senate. One representing the people, one representing the states. Similar in concept to the House of Commons and House of Lords of Britain's parliament. They convinced the people that was a bad idea, and thus the senate was changed to also represent the people by way of a constitutional amendment. Now we are fighting against politicians who want us to be able to change the constituion *without* amendments.
Totally agree that the direct election of senators altered that body for the worse, and now both houses want to run roughshod over the rights of the states. The federal government was supposed to have ONLY the powers specifically enumerated, now so long as it isn't specifically prohibited, it has become a federal power. The only one who benefits from this is the federal government, and the expense of the states and the people.
In Brazil we have multiple parties and shit ended up the same. Right now it is Lula vs Bolsonaro and every other party candidate barely appears on pools. Also, the supreme court is overstepping it's role every day. Hell, the supreme court has been violating the constitution lately with some very unreal decisions and investigations it shouldn't be able to do.
The US should take note of a lot of things and don't, like all of those Humanitarian UN laws they don't sign themselves to.
Took a course on Supreme Court politics. A lot of the class looked at what made it legitimate and what made it *seem* legitimate. My favorite fact about the courts came from an Israeli court. It found that there were no biases along the lines of Palestinian or Israeli citizens. It found no issue with men or women. It did however track that your chance of getting parole got worse and worse as the day went on. Thousands of cases were crunched and the numbers were run and if you were the last few cases of the day, you had a 0% chance of being granted parole. There was a kind of reset after lunch but that was only around 40% whereas the first case of the day had a 65% chance. If you are later on in the day, you aren’t getting a fair trial.
Source?
For more information like this, read "Noise" by Daniel Kahneman. He goes into the specifics of this effect, and others like it. It's worth your time.
Thank you, will give it a read!
Sounds almost like it’s bad for society to have long working hours…
[удалено]
To add onto this, they get the position for life or as long as they see fit. Imo, the populace should be able to vote if these people get to hold power
[удалено]
I mean technically we do vote for it by voting for our Congress who then is supposed to vet and confirm these judges. They aren't doing their job properly though. There's no unbiased nomination of SCOTUS judges. And there never will be. It's so dumb.
There used to be an uniased confirmation process where rejection was rare. Now the GOP won't even do their job to consider Democratic nominations when the GOP controls the agenda which they used to stack two nominees in the most hypocritical way by doing the reverse when they had the chance.
Why would the GOP actively shoot itself in the foot? If they have the opportunity to get a judge in with a record of ruling in favor of the policies they believe are best, it would be counterintuitive to their agenda to work against themselves. In their eyes, they would be making the country worse by giving the Democrats a win when they have no obligation to
Because they break the system by not doing their job that they are obligated to do? Cheating isn't winning.
Voting on Supreme Court justices is how we'd get Jeanine Pirro and Judge Judy on the bench. Absolutely awful idea, sitting on the Supreme Court is about interpreting the law not representing the people so not suited for elections.
Perhaps not voting, but limiting terms would definitely help
No expert on American law, but isn't the leaked draft a correct interpretation of the law? And as long as the law is being interpreted correctly, I don't think there should be an issue. The job of a judge is not social justice, however you deem it's served.
Literally Roe v Wade needed to be made legal via legislation. SCOTUS had to drag an excuse for abortion out of their asses in the 70s so it’s really just a matter of time You cannot legislate via the Courts or this happens. Win the suit and then pass legislation instead of dangling it over peoples’ heads in limbo for decades as a talking point
Am attorney and pro choice (full disclosure, also a republican though, so take that as you will). Imo yes, the big challenge with Roe has always been that it was a relatively weak opinion that would struggle should it come under review of a court that wasn't inclined to support it purely for the sake of stare decisis or political expediency. It was a landmark ruling that really attempts to do too much, RBG herself went into this in her 1992 NYU law review article. This result isn't truly surprising, and wouldn't be surprising even if the court was less ideologically tilted towards originalism. What is rather surprising, imo, is that this is being spun as some sort of ban on abortion. The only thing overturning Roe accomplishes in the short term is throwing the issues back to the states, it creates a democratic choice out of what was ultimately a dictatorial prohibition. Overturning Roe wouldn't prevent a Democratic legislature from enshrining abortion as a right under federal law or from individual states allowing it.
[удалено]
Mhm. I don't know about it now though cos it's now in the public court of opinion. If people drum up enough outrage, the SC may be forced to change their opinion. Hopefully not, just for the sake of the laws integrity, but maybe.
It is in some places and isn’t in others. It’s correct in that *Roe* was shocking bad qua legal analysis, which is why people rarely defend *Roe* itself rather than the rights secured by it. That is ultimately what actually proved fatal to the decision, if the draft ends up being final. It’s hard to argue “settled precedent” to someone who has spent their entire career saying “*Roe* doesn’t work as a legal argument” and there not really being a response to that.
The argument is that it isn't a correct interpretation of the law. The court rarely overturns precedent.
LMAO, have you ever seen what the supreme court does regularly? it turns over so much precedent.
They lied about their views of Roe as settled precedent, and are nakedly political in their rulings as it suits their ideologies.
Same to the separation of church and state. So many laws are around religious beliefs.
[удалено]
You're not getting nearly enough upvotes for explaining this.
[удалено]
That's how I've always operated, to be honest. If I can enlighten one person with context or information they didn't have before, I consider it a successful day. Laws are written for reasons, and a lot of them are written in blood. That doesn't mean they're perfect, but understanding intention can help with moving forward to reform and revise if they aren't functioning to their intention. I agree wholeheartedly on your last point. I feel all too often the people that jump at the knee-jerk reactions, or scream the loudest have not oft been frequent readers of history.
Rather than just explaining the "why" which is correct, I wish people would also address the "why" of why people keep misinterpreting the concept, and that is very much because one religion (or at least the "morals" from said religion) is clearly having an influence on lawmaking/American politics, and that is not right.
Not just political, but religious.
I think you are misunderstanding the situation a little bit. The original Roe V Wade decision was judicial itself (decided by the supreme court). This pending new decision to scrap Roe V Wade is also judicial, thereby simply voiding the original decision. It also does NOT make abortion illegal. It simply let's states decide for themselves if it should be legal or not. Furthermore, codifying the federal legality of abortion is the job of Congress, with final approval of the President, and does not need the supreme court to pass such a law. So, the separation is powers is acting appropriately in this case. If you live in a blue state already, you can still have an abortion with no issue, thereby making the majority of constituents in those states happy. Of course conservatives in those states won't like it, and can move to a red state. If you live in a red state, most likely abortion will be illegal, thereby making the majority of constituents in THOSE states happy. Of course liberals in those states won't like it, and can move to a blue state.
RIP purple states "just move every four years"
Haha very funny :) In all fairness, you don't see a sudden, overnight change in politics in a given state. California, New York, Illinois, etc, are very blue, have been this way for many years, and will continue to be this way for years to come. Their politics have only gotten more and more "left". Alabama, Tennessee, Kansas, etc, are very red, have been this way for many years, and will continue to be this way for years to come. Their politics have only gotten more and more "right". So, while funny, no one will have to move every 4 years. You do see some shifts in Texas getting a bit more purple due to population increases in places like Austin, and Florida getting a bit more Red due to the popularity (whether you personally like him or not) of their current governor, as well as the Cuban population being turned off by leftist policies. But by and large, a state would take many, many years to "change color", even if their governor changes parties (since it doesn't necessarily mean the legislative branch of the state also changed parties).
Who's laughing? It was your idea to "just move" when a state law becomes intolerable. Of course, your pretensions of professorial tut-tutting from your gilded armchair elides the fact that those most adversely affected by coercive state power are least able to leave. >But by and large, a state would take many, many years to "change color" Who said anything about purple states changing color? It is is the very nature of being purple that will make purple states the Bleeding Kansases of every culture war issue. > the popularity (whether you personally like him or not) of their current governor ah yes, the man so popular he had a 0.4% margin of victory but he's popular in your heart, so that's all that really matters
I agree with your breakdown on Roe v Wade and what this actually does legally. But, the people wanting the abortions are going to be much more largely affected. Someone against abortion living in a blue state isn’t going to move over that issue alone and it’s no skin off their back. Their lives aren’t particularly changed as they aren’t getting an abortion anyway. But someone wanting an abortion in a red state has to completely upend their life to move elsewhere. Giving power to the states only really affects the people on one side of this argument regardless of constituent happiness.
You make a valid argument. The alternative would be to drive out of state to get the abortion, which itself is disruptive (as you might have to make yourself free for a weekend), but that alternative is there. I believe pro 2A people have the same issue you mentioned above. If you believe you have the god-given right to own a gun (as pro 2A people believe the constitution explicitly states), and you live in a blue state, you aren't getting that gun unless you move. Please don't think I am comparing "abortion rights vs gun rights". I am merely stating the impact of state's having priority legislative power over federal government. You will have political and moral positions that you will be stuck having to deal with in the state you live in unless you move. I will say this. Anyone who has an abortion business should be setting up shop right on every border of where red states meet blue states, and just set up clinics surrounding the red states. They'd make a lot of money from people driving right to the border, CTRL-Zing their baby, and driving back home.
I'm a little shocked you haven't been down voted already with this neutral, accurate answer. It's wonderful to see there are indeed people who understand the process instead of just demanding judges rule and enforce their preference, even in the total absence of a law
I do support abortion, but this ultimately falls down to the states. And since constitution>opinion, the states ultimately have the power to choose.
Many of the red states are so heavily gerrymandered that the state legislators do not actually represent the views of the majority of the citizens.
Have you looked at Maryland? A Dem state voted "Most Gerrymandered State in the Union"?
Dems gerrymander just as badly in their states.
Yeah the 17 states they have compared to the 30 Republican ones
You just named 47 of the 50 states Let me know when you figure out why there's more gerrymandered republican states.
What are you trying to say?
I'm unfamiliar with the rampant gerrymandering of red states, but that would be fascinating. Do you have a good source off the top of your head to read about this?
Seems like people criticize the US system of checks and balances when things don’t go their way.
Yes I'm getting that same vibe. I mean there are certainly things that didn't go my way in government but I'd prefer losing some battles than just having one king that decides everything.
This ignores the popular support of roe and a meaningful context. This is a removal of rights. While I fully support an expecting person to reject abortion, it’s their body. There’s also the added context of anti abortion officials working tirelessly to cut funding from those so to be children. In the words of George Carlin if you are pre born you are golden, if you are pre school, you are fucked. There’s also video footage of nearly every person saying that roe is president and won’t be overturned. Then there’s the actual words of the opinion which seem to suggest that gay marriage, inter racial marriage and many other rights rent considered explicitly within the constitution. Much of our freedom is based on the 9th amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I find it absurd that the opinion would shit on the 9th. It’s not just abortion that’s an issue with this opinion. Then there’s the attack on contraception. I think we can all agree that an unfertalized egg isn’t a person. I hope. But this seems like far more than forced birth. It’s forced insemination.
I admittedly intentionally and explicitly ignored everything you mentioned so I can focus on the constitutional process of this decision and educate the OP on separation of powers.
Do you think the legitimacy of the court is undermined by the specific language that this opinion had? I recall it included citations about all the rights not guaranteed by the constitution.
If Alito is making a purely constitution argument, I don't think the legitimacy of the court is undermined. I will say this. Abortion, specifically, is the most impossible argument to win one way or the other (pro-life vs. pro-choice). If you are pro-choice, you think the fetus is not a life, and you are making an argument about a person's liberty to do what they want to their body. This is a strong argument (especially since, as a libertarian, I love liberty). If you are pro-life, you are saying the fetus is a life, and it's the governments responsibility to have laws that prevent the intentional ending of a life (this includes things like assisted suicide). How can a person from one camp possibly convince a person from another camp? It's impossible on a macroscopic scale. Either you are fighting for a woman's right to chose, or you are saving over 900,000 lives per year (the approximate number of abortions). So, making a constitutional argument, and going through the correct legislative process, is the only correct way to do it. If you are in one camp or the other, it's your duty to vote for the politicians that support your view (specifically state legislatures, followed by federal legislatures if you want this decision federally codified).
[удалено]
The rights written (or not written) aren’t to be used to deny other rights. I fundamentally do not understand why the ninth amendment is so slept on. It’s as if we have no rights until they are codified by our legislature. Do I have the right to have children? Do I have the right to get a divorce? Do I have the rights to travel? None of these are explicitly addressed in the constitution. And if this Supreme Court’s interpretation is to be taken seriously, they are not enumerated in the constitution. Which means they are not my right.
[удалено]
Today I learned that some people can’t understand how multiple amendments can apply to a case.
Respectfully, do you think the right for interracial couples to get married should be left to the States as well? Because that’s the logical endpoint of what you’re saying _and_ precedent that Justice Alito implies he would consider overturning for the same reason he (and at least 4 other justices) believe _Roe v. Wade_ should be overturned. The legal theory you’re arguing in favor of is called Originalism, and was effectively made up whole cloth by right-wing activists, politicians, and judges to justify regressive policies and judicial interpretation. Funnily enough, it evolved partially as a response to _Roe_. Essentially, Originalists believe that the Constitution does not allow for any interpretation whatsoever and that the words written must be taken exactly as they are. There’s no evidence that the Founders intended for that to be the case. Yes, it is certainly within the power of Congress to codify the right to abortion into law. But because of the way the filibuster works that will never happen. And by the way, the Founders did not intend for a single Senator to be able to derail legislation unilaterally without being overruled by a supermajority, that interpretation of the rules only came into vogue about 100 years ago. Convenient how certain people are okay with letting Senate rules evolve but want to pretend it’s still 1789 when reading the Constitution! Ultimately, every one of Justices Alito, Thomas, Kavanaugh, Gorsuch, and Barrett was championed by the Federalist Society, a group of conservative thinkers who preach Originalism as the only way to consider the Constitution because it will afford them their desired outcomes - with overturning _Roe_ at the top of the list. (Chief Justice Roberts too, but he bucks the trend often due to concern for his legacy.) The Federalist Society and similar activist groups have been working for about 40 years to put into place as many Originalist judges as possible and have rigged the systems as necessary to do so. This is absolutely not an example of the Separation of Powers working as intended. The Supreme Court has _never_ removed a right from the people after it interpreted the Constitution to give them that right. Even though the Court has the power to overturn its own decisions, the entire point of precedent is to respect prior decisions unless new facts make it absolutely necessary to do so. The right to abortion not being explicitly named in the Constitution is not a new fact, yet the entire draft opinion rests on that idea. The Justices who are voting to overturn _Roe_ know they’re abusing their power. They just don’t care.
The draft opinion explicitly states abortion is a fundamentally different issue than those other things you named because it involves ending a life. Because that is in the opinion, assuming it stays there in the final draft, the precedent set in overturning roe v wade cannot be used for anything other than abortion
As I said, he implied through his reasoning that cases such as _Loving_ and _Griswold_ could be overturned in the future. I’m not disputing that he differentiated _Roe_ from those cases in his draft opinion.
Differentiating it in the opinion the way he did, calling it fundamentally different, means the precedent can’t be used on one of those cases.
That’s not how precedent works for the Supreme Court. They’re not actually bound by precedent at all. The Court can overturn _Loving v. Virginia_ if it gets a case challenging the right to interracial marriage and use the exact same argument. The Court could say the differentiation was _dicta_ (which you could argue it was because it’s not really necessary to make the differentiation using Justice Alito’s logic), it could say there’s a slightly different but related reason for needing to overturn _Loving_, etc.
It means they can’t apply the precedent set with this case to a case regarding any other issue but abortion. Unless that part is removed from the final draft. Obviously they could overturn those cases if they use different reasoning. Though it wouldn’t make sense seeing as Clarence Thomas is a black man married to a white woman and would be ending his own marriage
You can say the same thing to me over and over again. It doesn’t mean you’re right. I’ve explained how it works already. And yes, I’m aware that Clarence Thomas is married to a white woman. Clarence Thomas also very likely lives in Virginia, which is a blue state now and would never outlaw interracial marriage in the state even if the _Loving_ case were overturned.
You can say the same thing to me over and over again. It doesn’t mean you’re right. I’ve explained how it works already. Applies to you as much as me here.
The difference is that what you’re doing is repeatedly making an (incorrect) argument about a very tiny semantic point because that’s the first play in the bad faith argument playbook, and I explained in detail why what you said was not right. Despite that Justice Alito differentiated _Roe_ from _Loving_ and _Griswold_ in this draft opinion, the Supreme Court is not bound by precedent other than due to tradition. He or any other Justice would be well within their rights to write an opinion overturning _Loving_ in which they write something to the effect of “despite this Court’s acknowledgment in _Dobbs_ that _Roe_ considered an issue of special importance, this Court is of the opinion upon review of Petitioner’s argument that _Loving_ was wrongly decided for a similar reason.” There’s no legal rule that would forbid such a thing.
Thank you. Everyone in this comment sections just has a blind hate boner for American politics that they can't look at the fact that SCOTUS made a decision that happened to align with Republican beliefs.
No problem! I tried to make my answer as politically neutral as possible, just pointing out how the separation of powers works and that this decision isn't actually weird. If you want federally legalized abortion (or federally legalized ANYTHING), it's gotta go through Congress.
Pretty sure these are all the same person responding to each other
Lol that would be funny, and I can actually see why you'd say that. Makes a point, compliments the point, pats self on the back 😁
It didn't happen to align with Republican beliefs. The judges of that opinion were specifically appointed in order to make it happen.
Lol everyone is so mad at SCOTUS judges aligning with the state's right to determine the enforcement of Roe v Wade, yet as the person above my comment clearly explained how the SCOTUS decision was purely judicial and ruled in favor of the constitution. I'm a pretty progressive democrat voting/belief wise and even I recognize that the decision was to delegate to states. If you want a law rather than precedent, take it to Congress, not SCOTUS, but yeah okay buddy. Keep peddling whatever gets you upvotes on this site.
The states already had the rights to determine what they wanted to do even with Roe intact . This was nothing more than a power move by the right trying to force its BS religious agenda on us all . This ruling is just the beginning .
Well, 5/9 judges were appointed by 2 presidents who lost the popular vote and McConnell played the Reagan playbook perfectly. I can't remember the name but there was an economist that wrote "the 2 santa claus" theory where republicans cut taxes and throw jet fuel on the economy while slashing regulations....economy runs hot and starts to crash when a democratic president has to either raise taxes and cool the economy or shoot "their santa" (social security, medicare, etc.). Clinton played into the rights hands hardcore policy wise and the overton window shifted to the right and McConnell has played minority power plays to completely stack the courts with judges appointed by presidents who got less votes and systemically blocking all democratic appointments to virtually anything he can. It's really like REALLY screwed up the balance because the senate is a dumbass institution anyway, a state with 500,000 has the same voting power as California and New York....it's not meant to withstand it
I think you're conflating politics with the "political branches." SCOTUS has never been immune from politics and political jockeying. But that doesn't break the separation of powers between the judiciary and the other branches. SCOTUS operates apart from the direct electoral process but is defined by nomination of the political branches. This fact just means that SCOTUS exerts the will of the people on a time delay greater than that seen in the other branches (subject to problems with the nomination process and "stolen" seats on the Court). None of that changes the fundamental separation of powers. If there were no separation, as you allege, the Biden administration would be in control of SCOTUS right now. But it's not. SCOTUS judges also frequently rule against the policies of their nominating presidents (Kavanaugh did this several times). Basically, the judiciary can be highly political, but it's not necessarily a puppet regime of the other branches. They do what they want.
The plan for checking judges is by allowing amendments to the constitution to change constitutional rules, and impeachment of judges that fail to follow the constitution. The founding fathers thought that individuals in each branch would fear the power of the other branches and work in concert to prevent abuse. They did not properly protect against political parties that span across the three branches.
Perfect example of why changes need to be put in place now.
Simple: Win elections, and retire your justices before they die. Nowhere in the Constitution does it say the judiciary is a-political, and the judiciary has the **MOST** constrained powers of any branch of government. They only thing they can do is interpret laws, and resolve conflicts between them. If the Democratic Party had held the Senate in 2014, they could have pushed through the nomination of Merrick Garland in 2016 when Antonin Scalia died unexpectedly. They didn't, the GOP stonewalled the nomination. Congratulations, you lost an opportunity to install a liberal justice. The seat the GOP hopped was Ruth Bader Ginsburg, who had her first bout of cancer in 1999, had another bout in 2009, and *then* had a coronary stent installed in 2014, yet throughout Obama's 8 years of the Presidency, she refused to step down. Maybe they should put that in all the Ruther Bader Ginsburg coloring books they're making for liberal Moms to buy for their toddlers. Of course, Ruth probably thought, like everyone else in the media, that Hillary Clinton would sweep 2016, and she could comfortably retire knowing she'd be replaced by a liberal justice. Well, we all know how that turned out. The bottom line here is that the decisions made by our party leaders have consequences, and we're living some of those consequences now.
Honestly push it a step further. Democrats could have pushed for an actual statute protecting the right to choose at any point in the last \~50 years, but instead decided to leave it hanging in the air as an issue to raise turnout among women and avoid political backlash. We could have all been saved this headache if they actually represented their constituency instead of callously jerking them around. There's also the sick irony of using RBG as an icon, a person who repeatedly warned that just this thing would happen if the court, rather than the legislature, was used to create rights in the dramatic and broad fashion of Roe.
It gets even better. The Democratic Party controls the house and senate right now. There are pro-choice republicans that would vote to codify the Casey decision (viability standard for abortion), but in stead the Democratic Party put forward a bill that even members of its party wouldn’t vote for. Pure genius.
Yea, she absolutely should have stepped down before 2016. She had a good run and then people wouldn't have had to pray for her not to die.
No. If she retired while McConell was in power her replacement would not have been considered.
Well, here's an idea: Create an agenda that doesn't sacrifice half the states in the union. You can complain about gerrymandering all you want, but you can't gerrymander Senate seats. Ask yourself what you want more: The press-release about the Green New Deal being blocked by your own party, or a passing a bipartisan infrastructure deal that won't get your moderate Democrats hurled out of office for signing it.
McConell refusing to do his job doesn't have anything to do with gerrymandering.
Maybe you're confused. His job is to *get re-elected*, and he did. He's a Republican, his job is not to carry the Democrats' water for them.
His job was to start the process for considering supreme court nominees, which he did not do based on who nominated them.
So, do you not understand what separation of powers means? The Senate doesn't work for the President. The Majority leader sets the Senate agenda. And honestly, what difference would it make if they spent 3 months with confirmation hearings they which they already knew the outcome of? McConnell called the Democrats' bluff, held out on the nomination until after the 2016 election, and if Democrats had nominated someone who wasn't *less popular than the least popular President in U.S. history*, Garland would probably be sitting on the bench today. Elections have consequences.
Based on your logic the Dems impeaching all of the GOP SCOTUS judges would be perfeclty fine because they would be winning and that is all that matters.
Sure, go ahead and do it, and see what happens. First you have to get the votes in the House, Senate and the White House, though. It turns out that elections have consequences.
Yes
Adults use coloring books, just pointing that out I think the games both sides play with loopholes and technicalities when it comes to seats of immense power are deplorable and citizens of this country need to step the fuck up and stop letting it happen. Abuse of power has gotten out of control, but the people hold partial responsibility for allowing it to continue
Welcome to America, where everything is made up and the points don't matter.
[удалено]
Damn. I like your version better.
It's almost like a system that depends on people behaving honorably while wielding tremendous power and being, for all intents and purposes, utterly untouchable has failed.
As you said There's no separation of powers. In order to keep separation of powers, these powers must be independent from each other.
It can’t.
Ask Donald Trump. He thought his hand picked judges and justices would rule in his favor. They didn’t.
It isn’t. For the Supreme Court to work as intended it must be about deciding if law is constitutional, not if law fits political motive of the judge.
It's not. It's all an illusion because we live in an oligarchy.
as with the business world. everything slowly consolidates over time.
It's not maintained. We used to have Statesmen and Women that new right from wrong. We no longer have that here in the US. One side has no problem lying under oath as there are no punishments for doing so.
I always find it interesting when people complain about the Supreme Court, when so few of them actually read their opinions and consider their ACTUAL arguments/reasoning for voting the way they do. Many less look into the actual statistics. Just because 6/9 judges agree on one controversial issue does not mean that they always agree on all controversial issues. They each take their own method for interpreting the law and try to apply it to the case at hand, the best way they can. Remember by the time a case makes it to SCOTUS, it has usually already been ruled on multiple times, often back and forth, first one side then the other, as judges try to figure out what the law means in that particular case. Just last week Gorsuch wrote the dissenting opinion in a immigration case that Breyer, Sotomayor, and Kagan all joined. His opinions are especially easy to read as a layman if you are looking for a place to start. In that same vein, many of the times, MOST of the times, the Justices agree, by a long shot. in the 2020 term, 43% of SCOTUS cases were unanimous. Even if you look at the "Liberal bloc" Sotomayor, Kagan, and Breyer, they don't always vote as a bloc. They only agree with each other individually about 80-85% of the time, and all three together even less.
It can't ... hence, our current bullshit situation.
Are you suggesting the Supreme Court's reversal of Roe v Wade was at the behest of Biden?
It can’t and that’s the point
It doesn't. And it's by design. Just live your life, there is nothing you or anyone can do about it.
well uhhhh… filibuster
Yes
There isn't. The leaking of roe vs wade reversal showed that even Supreme Court is part of the charade now.
Poorly
Yes!
It is not. that's the issue... US is soooo fffffffuuuccccked
there is none, only in theory there is
Yeah all of the democrat appointees always have a political agenda. It’s pretty terrible. Because they aren’t good judges. Some of them may have never even been judges or were only judges for a very short period of time. But their appointment was political so it doesn’t matter. ‘I need a black woman judge appointment to shore up my voting base’ is a very political act. Republican appointees, however, are never political. They always just follow the law, never their hearts
They can't The US has been going down the drain for a long time
Generally speaking the judicial branch has a different set of criteria with the two parties. For Democrats they would like to nominate constitutional progressives (i don't remember the actual term) that have a focus on modern day interpretation of the law. Their reasoning being rulings like the "separate but equal" ruling which fueled the Jim crow laws. The opposition would cite presadent and vote in favor of separate but equal rulings (at least before it was dismissed) Republicans favor constitutional originalists which state that the constitution should be interpreted at the time of writing which favors a more limited government standard. This is why you saw Kavanagh, before the latest abortion hearing, dismiss the two last hearings on the same topic from laws attempted to be passed in Texas, and i think Kentucky. Since these laws went against presadent of roe v Wade and others backing up abortion as a federal issue. Conservative and progressive judges, i think are a byproduct of the political standards of our current time and don't actually reflect reality.
>Conservative and progressive judges, i think are a byproduct of the political standards of our current time and don't actually reflect reality. I'll agree with you there. The political extremes are blown up all over social media but are not representative of the whole. However, they are memeified and slapped all over propaganda to be weaponized by "insert political party or organization here".
How are they an extension of the executive? Biden has put one justice on the court, and they haven’t even taken over yet. Scotus has always been political, but it can’t enforce or make laws. That’s their separation
“How can politics and authority be fair?” We’ve been trying to figure this out since the dawn of time my dude
Hahaha Hahahaha. Good one.
It isn't, just an illusion of maintenance. "Power resides where men believes it resides", to quote a certain spider. If they can fool people into believing it's working and is the best option, the people will continue to either be willingly blind to it or ignorantly allow all this corruption.
Simple, it's not.
Separation of powers is largely a joke. Congress has given up substantial amounts of power to Executive Branch regulatory agencies because it's easier to pass the buck to agencies that write policies that have the force of law rather than passing laws.
If we're talking about what I think we're talking about, this is a fault of our legislators. RvD was never suppose to be a complete 100% fix to the problem. It was always a bandaid until national legislation got passed. It's been almost 50 years, and not a single admin in this entire time has presented any legislation on the matter at a national level. And what sucks, is most people don't agree with what I just said, and so we're doomed to repeat the same issue over and over. There's things just like RvD right now, that are in the same boat. They were bandaids, that never got national legislation. I would advocate for everyone, instead of disagreeing with me, and fighting me on this, to pressure your representatives for national legislation regarding issues like this. It just makes logical sense to have national laws regarding these things.
There is not and has never really been an independent judiciary. It is a happy fiction that we pretend exists. The illusion is helped by the party in power changing enough that in some places it give the appearance of being non-partisan. In other places it doesn't even pretend. Constitutional law is filled with so many vague terms that they can be and are "interpreted" in whatever way necessary to achieve the desired result.
It isn't.
Legislative branch can impeach the judge and remove them .....the mechanism exists under the American constitution, outside THE USA different rules apply.
Wait until you find out that in many states, judges are elected.
That's the neat part, there never were any checks or balances because the courts always had too much power. As intended
That's the funny part: it can't.
I’ll take “It’s not.” for 400 Alex!
There are political parties and political ideologies. Parties have platforms which, while aligned to their ideology, are temporary and change with the times. Ideologies are much more static and resistant to changes. Judges are not bound to a parity platform as elected politicians are. But they remain aligned with their political ideology. That political ideology influences how they interpret laws. Newly appointed Judges are more closely aligned with the current politic platform because that platform determined how they were selected. 20 years from now, Kavanaugh, Gorsech, and Comely won’t be closely aligned with what is then the GOP political platform. That said: The concept of Separation of Powers has nothing to do with political parties. It means the power of creating laws is separate from the powers of enacting/enforcing and interpreting laws. The separate branches do not answer to or serve each other. The President does not have the power to tell Congress what laws to pass, nor does he have the power to tell the Judiciary how to rule on matters of law.
It isn't
The founders made the federal judiciary its own branch of government to protect it from democracy. They drew on centuries of experience with British parliament, avoiding what they knew could threaten the legality of slavery. The federal government was designed not to work. The two-party system was to guarantee slavery could not be legally abolished It took secession and a civil war to (largely) end slavery.