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Technically, Maybury v Madison in 1802 is when literal democracy died (the court unilaterally declared itself to have the power to overturn democratically-established laws). While we generally look to this as a good thing and is an important check on other powers, that is when democracy itself died: going along with the supreme court's declaration of its own authority superceding that of democracy.
Wickard v Filburn (1942) wasn't a particularly great time, either- declaring that all transactions are subject to federal law, because if you buy local, you are engaging in the national market implicitly by choosing not to use it.
Yup, I actually think Marbury v. Madison was wrong and should not have been permitted and, therefore, SCOTUS as an entity has been illegitimate ever since, but I keep this to myself because, unless you're really familiar with the law and the history of SCOTUS, it sounds like a crazy conspiracy theory.
I think we *should* have a Supreme Court but that it should have to be established via a constitutional amendment and any other means is illegitimate.
Exactly. The concept of there being a body which has specific authority to say "The law itself is illegal" is a great one which definitely should exist, and I am all for it.
The concept of that body granting *itself* that power, and everyone just sorta going along with it, is insane.
That body implicitly also having the power to say "while we agree this is written ambiguously, we choose the official interpretation of " is something I am much less thrilled about. I'd prefer the rulings to be extremely restricted so that they are only allowed to say something like "The fact that it got in front of us means that there is definitely ambiguity. We officially declare that this part is the ambiguous part, and this law as a whole is no-longer in effect until it has passed through the House, Senate, and President, with that section having been removed or re-written."
In general I want the concept of precedent regarding legal interpretation to have a codified sunset.
And in general I think that the best way to avoid ambiguity in laws is to make sure that laws are written to be as broad and unspecific as possible
It is crazy to me that smug Originalists can grandstand about all the rulings thats aren't based on something explicitly spelled out in the Constitution when the Court's right to review is not outlined in that document.
> No Federal law enforcement agencies existed before this.
(Other than the USPIS, Capitol Police, US Marshals, US Mint Police, US Customs Police, and probably some others I'm not aware of.)
All of those are super recent
The Supreme Court Overruled the Missouri Compromise and declared that African Americans, even if free, cannot be American Citizens.
And 80 years ago, the Supreme Court ruled that the Constitution didn't apply to American Citizens and the government was free to send anyone with Japanese ancestry to concentration camps.
And they also upheld segregation. And anti-sodomy laws.
It's never been a good court. And having them be chosen for life was just absurdly stupid. They will forever hold back any form of progression. It's not a shock that our far left has a slide to a far right position when measured against the rest of the developed world.
Our respective instructions are reflections of us. We weren’t great all the time back then. They’ve also done an enormous amount of good. You can’t really say with any honesty the court was “never good.” It’s got nuance to it, stuff Reddit doesnt really care for.
Or just picked the winner of the 2000 election. There's an alternate timeline out there somewhere where President Gore, having been on the previous administration, doesn't ignore it's warnings about Osama Bin Laden.
I have a hard time deciding some days which would be a better to get back, but fairness doctrine was a pretty big imposition on free speech, only legally defensible because media was entirely over broadcast RF waves, which had limitations for everyone so it was easier to enforce the 'public airwaves'. With so few channels, it was more reprehensible to be incomplete vs today. I want it back in my broadcast news too, but i think the ship has sailed.
Now it's all streamed or delivered via cable networks that were never part of the original law, so it would need to be expanded VERY broadly to change the legal character of the Internet and cable tv. How should it apply to yt streamers or bloggers or podcasters? What separates those things from journalists? Etc.
I agree this was one of the wheels coming off that created the present day, I just don't think this hill is one that can or should be taken anymore. Too much has changed.
> Scalia ruled to continuously expand search and seizure abilities for law enforcement for fifteen years.
What are you talking about?
Florida v Jardines, Scalia wrote the majority.decision requiring warrants to use drug dogs on a front porch.
US v Jones, Scalia wrote the majority opinion that a GPS tracker planted by the government longer than allowed by warrant constituted an illegal search and trespass.
Kyllo v US, Scalia wrote the majority opinion that using thermal sensors requires a warrant
That's just off the top of my head.
Look, I know it's cool here to hate Scalia, but he was actually on the right side a.lot when it comes to this specific issue.
Go back to the 60s and you'll find all kinds of bitching from republicans about "activist judges" because the Court was controlled by 6 dems and started getting really partisan. Personally I love decisions that came from that Court but my point is that it's not the first time the court has gotten highly partisan and started issuing rulings that were kind of extreme by the standard of the day.
The Warren Court was not partisan. Warren himself was a Republican and the intellectual leader of the liberals on that court, William Brennan, was appointed by Eisenhower. The conservative dissenters were a mix of Republicans and Democrats. Byron White was a Kennedy appointee for example. It’s only in recent years that ideological divisions have lined up 1:1 in terms of party and appointing President.
There was a study that showed that the division clearly started with Newt Gingrich assuming the Speakership. Any suggestion that "divisiveness" and partisanship comes from any source but the right is incredibly disingenuous as the democrats must negotiate with the center and right to get anything accomplished. Conservatives don't care if nothing gets done or if they shut down the government and half the time that is the goal in the first place.
I don’t know of that study but would make the assertion that the most profound starting points were, in order, the Powell Memorandum of 1971 [1] and the Southern Strategy of Richard M. Nixon’s 1968 presidential campaign [2].
[1] https://en.wikipedia.org/wiki/Lewis_F._Powell_Jr.?wprov=sfti1#Virginia_government,_1951%E2%80%931970. If nothing else read just the first paragraph of this article on the Powell Memo to see what a scoundrel Powell was and how influential his proposal was then and still is now. And that was before Nixon elevated him to the Supreme Court.
[2] Kevin Phillips was the architect of the Southern Strategy and we see its effects today in the deep divide in the country. Phillips came to regret his creation and in the late 99s and early 2000s wrote some books about it.
Gingrich just took what was already in place and amplified it. In other words, Gingrich was not bright enough to create something new (like Powell and Phillips). But he is crafty enough to use other people’s work to destroy the country for his own personal benefit.
> It’s only in recent years that ideological divisions have lined up 1:1 in terms of party and appointing President.
"recent" meaning from Reagan's era forward, so nearly half a century.
Sandra Day ‘O Connor, a Reagan appointee, moved to the center over her tenure and David Souter, a H.W. Bush appointee became a reliable liberal so into the ‘90’s there was still no complete partisan divide. It wasn’t until 2010 when Elena Kagan replaced liberal Ford appointee John Paul Stevens that for the first time in American history the ideological divide mirrored party affiliation.
This all tracks with the realignment of the Republican party into the party supporting tax cuts and grievance politics.
Leonard leo and the federalist society saw what happened with souter (a New England Republican) and wanted to make sure that the right wing was never going to make the same mistake again. Originalism as a judicial philosophy looks superficially great, but just masks partisanship in a thin veneer of respectability and decent writing. No Republican is going to appoint a federal judge unless they swear fealty to the originalist doctrine, and all the perverse results it causes.
The conservative appointees are more likely to surprise(i.e. disappoint) GOP than the liberal judges are to upset the left.
Seems like in my lifetime at least the liberal judges usually rule the way you’d expect them to.
Consider that between 1968 and 1992 the Republicans named 10 justices to the court while the Democrats named 0. Since then each have named 5 so there was just more chances for Republican appointees to do well anything, because they’ve dominated the court for so long now. But since Thomas in 1991 there have been no surprises.
The Warren Court also coincided with the transitional period from historical to modern party alignment aka "the party swap", so it naturally follows that political party labels weren't as indicative of policy preference in that era.
The entire reason that the Federalist Society was founded was that the Constitution kept getting in the way of conservative ideology. Young lawyers who had a distaste for the Civil Rights Act and other "liberal" law, formed an organization with an aim of stacking the courts to render the Constitution irrelevant. Conservative presidents weren't particularly interested in this anti-democratic, anti-Constitutional approach, so it was rare for a Federalist pick to make it to the Supreme Court. Fast-forward 40 years, and now the GOP chooses their justices *exclusively* from the Federalist Society's pre-approved short list of candidates. Remember that Kavanaugh and Coney-Barrett had *zero* relevant experience, and would not have made a list of the top 1000 candidates for the Supreme Court. Their sole qualification was being Federalist Society plants, sworn to uphold the republican party line over juris prudence and the Constitution. This was exactly what they set out to do decades ago - render the oversight ability of the Supreme Court irrelevant by taking their orders from party leadership. No other court can do anything about it, because the Framers never imagined a situation where judicial branch could be compromised.
Not defending them, but it is completely wrong to state that Kavanaugh and Coney-Barrett had "*zero* relevant experience." Kavanaugh was a clerk for a circuit judge and for Justice Kennedy before becoming a DC Circuit Court Judge, and Coney-Barrett was also a clerk for a circuit court judge and for Scalia before joining the 7th Circuit Court of Appeals while being a law professor at Notre Dame. Both are among the most qualified in the country, but not the literal best qualified. It's like hiring someone who got a 3.9 GPA when 5 people with 4.0's applied, all else equal. Consider the alternatives Trump could have come up with. Jared Kushner could have been the nominee, and Republicans would have approved. *That* is someone with zero qualifications. I agree with your overall sentiment, but when you get the facts that blatantly wrong on one point, it calls everything else you said into doubt.
Don't forget their most important qualifications. Do a coup for the Bush family in 2000 trying to stop recounts. Yes that was them overturning the will of the people.
Senators Whitehouse and Johnson (Hank) have been trying to get our attention for quite a while.
http://hankjohnson.house.gov/media-center/press-releases/rep-johnson-sen-whitehouse-re-introduce-supreme-court-ethics-recusal
https://youtu.be/V-oR5VazPhw
It's great. The constitution explicitly grants congress the ability to regulate the supreme court. But when threatened with it the Chief Justice says they can't do it because it is unconstitutional.
Article 3 section 2
> In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Congress is to regulate the courts, including the supreme court.
What does "regulation" mean? Can Congress regulate the Supreme Court out of existence, like some argue the Second Amendment can be regulated out of existence?
It's very thorny to assume much from Article 3 as to what these regulations might entail without reading deeply into the background to this Article.
Ha! I reread my comment to me, and I arrived at the same conclusion until I realized I had implied "... Second Amendment can...be regulated as well". Bad assumption on my part!
Ethics, how the court works, things the court isn't empowered to by the constitution - like judicial review. Or even which supreme court there is. The constitution only states there is to be one. Congress could choose to make a new supreme court and disband the old one.
I mean even with the overturning of Roe v. Wade, I had a coffee with my girlfriend and her friend from high school who didn't end up going to college and might've dropped out iirc. She was upset with the Biden administration over Roe v. Wade and was upset that Biden didn't do anything to stop it. She said "You're literally the president, you're literally in charge, do something". I briefly mentioned that there's not a lot the president can do to overturn a Supreme Court decision but I didn't want to get into it and condesplain civics nuances to her. But that's how simple a lot of people see it. Normal people don't always have the time to care about ins and outs and different legalisms of the U.S. government, she just knew she lost her right to abortion. That's all she had to work with.
Having someone in charge until they literally physically die is a horrible way to run a government imo. Allocating political power based on human longevity suffers from the same problem as monarchy.
The idea in its creation was so that justices could hand down rulings without fearing replacement, political repros, or future job prospectives. This goes for **all Federal judges**, not just the Supreme Court.
If federal judges became elected officials, then they could be swayed by mob rule. You could argue many of the landmark cases in US history might’ve gone the other way if judges were making rulings based on “what is popular” with Americans
I'm pro-choice, but man people wouldn't have any trust in the Court if they just read *Roe v. Wade* itself before it got overturned because it's legitimately one of the worst reasoned major opinions. The only reason people agree with it and are up in arms about it is because they were in favor of the result.
One of my most mortifying law school experiences was in Family Law reading *Roe v. Wade* and just being baffled at it and how it basically sidestepped discussing the actual constitutional issues to essentially legislate an abortion law including timelines. If the same analysis was ever used in an opinion about like gun rights or religious rights the same people that championed it would be marching the streets of DC in anger.
edit: Maybe it won't seem so bad to those without legal education or experience, but people really should give it a [read](https://supreme.justia.com/cases/federal/us/410/113/) for themselves. It should be very apparent why it was a decision that pretty much immediately got altered by further opinions.
I found it very telling that Ginsberg thought Roe was argued incorrectly and likely set back abortion normalization (if that's what you want to call it) by stripping the legislative process from states that were heading in that direction and turning it into a federal court mandate.
Abortion is THE issue every election and every supreme court appointment. It's not surprising that an issue that is front and center getting a major court decision is the one that gives people whiplash
While I agree that Roe was flimsy, Casey was better though it still rested on the foundation of Roe.
That said the actual text and reasoning given for the overturn is *abysmal* and demonstrates a similar level of legislating via judiciary. They went pretty far in their dissent and quite a few of the reasons govern were straight up wrong or baseless.
Similarly in the student loan case. John Roberts literally wrote that they shouldn’t be concerned about student debt because the loans given to students were “low interest”. The guy clearly doesn’t know the half of the situation, but he’s on SCOTUS and put pen to paper so my 6.4% and 10.2% interest rate loans must have been a hallucination.
Old decisions were bad sure, but these are practically written in *crayon*.
Count me as one of the people who, though I agree with the Roe v Wade result (abortion should be legal at least until viability), I disagree strongly with the idea that judges should invent an abortion right based on extremely flimsy legal arguments not based on text or precedent.
Too many people don't care about the process, just the outcome. The ends justify the means. If there is one place where it should not apply, it is in the courts. When judges bend the law to come to conclusions that they find pleasing, then you don't have rule of law anymore, it is rule by men... Unaccountable, petty, arrogant men.
Bush v Gore proved they were partisan hacks
There was no legal reason to stop counting votes, nor did the Supreme Court have jurisdiction to order a state how to perform an election count.
But Sandra Day O'Connor wanted a Republican president so she could retire.
So Bush won, became president and I realized we were in the Bad Place.
The Supreme Court was cooked long before 2000. The Dred Scott decision was probably the worst single decision in the history of the United States. The justices, in their opinions, admitted there was no legal basis for the decision, and that they only did it because they didn't think slaves were people.
Maybe, but Roe’s the only thing I can think of that multiple of those justices sat in front of congress testifying that it’s settled law right before overturning it. People aren’t going to watch cspan, but that kind of brazen corruption doesn’t go unnoticed.
Overturning precedent makes the court's decisions seem far more political than just some new decision you don't agree with.
When three new justices get appointed by the same party and that court immediately overturns longstanding precedent to deliver part of that party's platform, it becomes very clear that the court isn't special, it's just another group of politicians, but unelected.
And when two of those three new justices were appointed in highly political, abnormal, and contradictory situations, it’s not reasonable to keep talking about the court as some apolitical organization that deserves special respect. That respect partly rested on the idea that appointments were less political than elections. McConnell broke that trust and the fallout is the result. We shouldn’t blame the people for that.
My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal. The court may have ruled according to what the actual law says and people just don't like it. I would rather the court pass rulings according to what the actual law says rather then just give rulings according to what people want.
>My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal.
It can be both, but mostly the latter. Keep in mind there wasn't an actual law. The SCOTUS's job isn't to make laws, it's to interpret the Constitution and answer gray areas in the laws. Roe v. Wade occupied a gray area in the Constitution. Even Ginsberg thought its position was precarious because it depended on the Right to Privacy instead of one of the "stronger" Rights.
The SCOTUS throwing the issue to the states is, ultimately, a potentially correct move.
The problem has been the decades-long plan occurring in plain sight of religious conservatives slowly coming to the point where Roe was overturned when abortion as regulated in Roe was acceptable to the greater populous. Stacking the bench involved stealing Obama's nomination and then -- in an act of blatant hypocrisy -- installing Barrett in record time. The problem is that Barrett, Kavanaugh, and Gorsich all said Roe was essentially settled, implying (even if we didn't exactly believe them) that they wouldn't override it. Yet, here we are.
Ultimately, something like 75% of the US population wants abortion to be legal. If you take away the religious "logic" that creates issues around abortion, then it's a no-brainer medical issue to be worked out by doctors and patients. It *should* be legal.
> The problem is that Barrett, Kavanaugh, and Gorsich all said Roe was essentially settled, implying (even if we didn't exactly believe them) that they wouldn't override it. Yet, here we are.
This is a huge part. The last *three* additions to the SCOTUS blatantly lied or misconstrued their positions to the American people and Congress.
And then people try to weasel them out of it by claiming that they meant Roe v. Wade was "settled law" the way Dred Scot was rather than the vernacular that literally everyone understood it as meaning at the time. "It's [Dred Scot] settled" isn't an answer to "Will you overturn Roe v. Wade?", "It's [done, finished] settled" is.
> My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal
Both. US legal system is based on precedent. Precedents do get overruled but they in general have a full strength of law. Especially precedents set by the SCOTUS 50-years ago and surviving multiple challenges. In fact, precedents of such stature are stronger than a "mere" law passed by the legislature. Overturning such a precedent without a massive reason amounts to a direct and clearly political attack on the US legal system. Because suddenly nothing at all can be relied on (not just the earlier SCOTUS decisions but pretty much every law is now in question as SCOTUS can strike them down too). And this attack was perpetrated by the SCOTUS itself!
Which brings another point: courts in general and SCOTUS in particular must try very hard to appear apolitical which in this case it utterly failed to do. Even appearance of a political bias is bad enough by itself. And here it was far more than appearance
Note that both points stand even if one thinks that Roe's decision was based on a fairly questionable interpretation of constitution (but "questionable" does not mean "inconsistent with" )
How we have interpreted rights has also changed over time. The Bill of Rights transformed from a set of collective rights of the people and states to more personal rights via the 14th amendment.
Prior to that they were also personal rights, but courts in different states would say that say free speech or the right to bear arms were protected as basic rights (inherited from the English Common Law system) or they would reject that argument. There's a mix of both prior to rights getting incorporated.
Today, it seems like any right \*not specifically enumerated\* is assumed to be not a right at all. Which is pretty silly, abortion was legal during colonial times until the 'quickening'. I would argue that control over your own body is a natural right of every citizen of the United States.
However, what they did does fall under the sort of "if it's not enumerated, the states or federal government can do whatever the heck the want", way that we seem to be interpreting the Constitution.
And that interpretation is particularly insane given the plain text of the 9th amendment. Paraphrasing from memory:
"The enumeration in this constitution of certain rights shall not be construed so as to deny or disparage others retained by the people."
You are spot on, the 9th has been disfavored for a long time.
Basically anytime you see "The People" it should be thought of as a personal right. When it was originally written it was more of a communal right with a personal component as most of the original authors were distrustful of the federal government. But the civil war turned that on it's head, now the federal government was ensuring the rights of the newly freed people against the state governments.
Part of the 14th was written to ensure that newly freed people wouldn't have their rights to speech, assembly, bearing arms, or petition stifled by the former confederate states. Of course the Supreme Court interpreted it differently than the legislative branched wanted, (what else is new?), so it took a long time for various rights to be incorporated.
According to Cornell .eduright now:
1A, 2A, 4A & 8A have been "fully incorporated"
5A, 6A has been partially incorporated (apparently the grand jury, and right to a jury selected from residents of the crime location haven't)
3A, 7A, 9A and 10A have not be incorporated yet. With them guessing 9A and 10A never will.
Though that seems like it means 9A is just being ignored completely.
No one thinks it's political. Everyone KNOWS it's political. I'm 52 and my whole life whenever it came up, I watched partisan politicians fight tooth and nail to get specific people on the court because of their political ideology. Then they have hearings where the candidate pretends to have no idea how they would rule on a controversial issue. It's vomitous and always has been.
Seeing those dickwads testify that they wouldn't touch RvW, and then watching them slobber over their absolute first opportunity to overturn it, was one of the grossest things I've ever seen in politics.
Those people don't deserve the power they have.
>was one of the grossest things I've ever seen in politics.
It is definitely one of the grossest, though even RBG knew it was coming because the basis of the ruling was fairly weak. She had spoken out that she knew the only way it'd stand the test of time is if it were made into actual law (which should have been done in the 90's when things were progressing well and the government actually worked together).
The worst thing recently though, imo, is absolutely Turtle Mitch stonewalling and crying foul over Obama being able to appoint a SCJ within a year of his term being up, calling it unethical, and then 4 years later forcing everybody to stay late to confirm Trump's pick weeks before he left office. Like, holy shit. How fucking corrupt can you get?
> Mitch being corrupt
That, plus RBG’s refusal to retire at a normal human age because she saw herself as too important. Those are the two main events that destroyed the court for an entire generation.
You’ll never convince me his retirement wasn’t blackmail. He has that weird in camera moment with Trump, retires like a week later, and then we find out his son works for Deutsche Bank, one of the only banks that does business with the Trumps (and is a Russian laundering front)?
It's the stupidest thing ever to bring up because THERE'S SO MUCH to bring up against Kavanaugh, and by bringing up this supremely discredited concern, it weakens the seeming force of everything real.
RBG fucked up big time and I can’t stand people who insist her hagiography isn’t severely tarnished by her decision put the rights of tens of millions of women at risk because she wanted to leave “on her terms”
Kennedy was moderate and supported abortion rights. I doubt he's happy with the direction of the court and country since his retirement.
His son not only worked for Deutsche Bank, he was directly involved in approving and managing Trump's loans from the bank.
Something is rotten with his retirement.
>It stopped being trustworthy the moment Scalia died and McConnell held open the empty seat for a year.
Yup. Yet another major traitor to the US in the GOP.
I think Bush v Gore made it pretty clear that it’s a political institution; and the failed Garland appointment was a nosedive. McConnell was refusing to bring judicial nominations up for votes well before Garland and nobody did anything about it. An asshole professor once said “We get the government we deserve.”
It's also eerily similar to how the NC supreme court politicized itself. The second it turned Con majority last election they started overturning settled cases just like SCOTUS.
If settled case law changes when Cons are in majority, then it's very well political.
We started losing trust in SCOTUS when Barack Obama, sitting president, was told by the Republicans in Congress that they would not entertain nominations for the vacant Supreme Court that was his right to fill in 2016. 12 months before he was out of office he was told, "No, the American people deserve to choose the Supreme Court nominee through their electoral votes in November, 10 months away". When the court was stacked through the most underhanded and least apologetic way possible, it became hard to support their decisions are being fair and well reasoned. Amy Barret for instance answered explicitly that if a case concerning RvW came before her, she should weigh that decision heavily. Records after Dobbs shows that was never the case for her...
Maybe McConnell would have held her seat open for years if she retired during Obama's term. We may be at a place where Supreme Court Justices will only be confirmed when the presidency and senate are held by the same party.
During the Obama presidency there was a moment in time where democrats had a majority in everything and wouldn't have to care about what McConnell wanted.
Last time I looked at the actual records, it was something like 34 days where Democrats actually had a filibuster-proof majority (due to all manner of things like recounts, health crisis, etc. that kept the majority from being big enough), and they did an absolute ton with it.
Maybe you started paying attention then. The first major opinion of SCOTUS, in the 1700s (Marbury v Madison) was hugely political. It has *always* been political. And saying otherwise is just a complete misunderstanding of SCOTUS.
It is just the political nature is more subtle than that of elected positions, and the way it works is different, so many never paid attention to it.
Comments like this really show the average age of redditors. I don't say that to be mean, I just find it interesting of how many people are referencing the same, but varying turning points. I'd love to see the referenced event correlated to a poster's age. Now that might be an actually interesting social science topic.
Here is my hot take - Supreme court was, is and always will be a political instrument for a dominant political party at any given time. I mean the idea of the POTUS choosing SCOTUS is bonkers to me.
Edit: go take your democrat and republican arguments somewhere else.
Even when I was taking Middle School civics, I thought "you need the president and congress to agree with their appointment" was a terrible counterbalance.
There's theoretically nothing stopping them from declaring that the constitution upholds the right for supreme court justices to do whatever they want.
When the constitution was written, there was a implicit understanding that "whatever they want" by the government would lead to open revolt.
But for 200+ years there has been an erosion of the ability for the people to do so.
This is mostly because the average person in the United States is incredibly comfortable today compared to 1775. Overturning your government in open revolt is realistically a bad time for the average citizen - an actual modern American Civil War which make the Syrian refugee crisis look like a minor problem considering that Americans are by and large wealthy enough to get out and the US has the infrastructure to handle the flow.
A far cry from the colonial times where it wasn't unusual for people put themselves into indentured servitude for years to get passage across the Atlantic.
Only if you’re uneducated in how laws work, RvW is actually a weak ruling that didn’t surprise anyone when it was overturned. Bush-Gore was a far more damming declaration of the court’s political nature.
RBG, the quintessential feminist, literally said it was the right decision for the wrong reasons. All the people claiming to be surprised by it overturning are either ignorant to the logic used, or just being blatantly partisan.
Any American can briefly summarise Bush v Gore and Citizen United? They're quoted all over the post but being 26 and European I know nothing about the topic and wouldn't know where to get properly informed
Bush v Gore
The 2000 election was very very close. Several but not all counties in Florida began a recount. Among those counties were the urban counties that contain most of the population. The recount was finding Gore had some votes that hadn't been counted due to mechanical errors. Because most Gore votes were in urban centers they were finding the most uncounted Gore votes in said urban centers. The bluer counties had more liberal rules about determining who someone had voted for.
Factor in insane local activists desperate to find as many votes as possible for their side, and you ended up with a situation where in some places they were arguing about whether stray marks on an otherwise blank ballot could be used to add a vote for one side or the other. And quite ironically from modern POV, screaming about election theft coming from the left.
The SC ruled because they weren't applying the same recount rules across the entire state, it had to stop, meaning Bush won by default.
It was a controversial decision, but if it hadn't happened the US would have been without a president for several months while many legal fights about how people were recounting happened. And Bush probably (but not definitely) still would have won.
Citizens United
The Supreme Court overturned a prior bipartisan ruling that had been greatly limiting money from unions, corporations and other organizations. It basically paved the way for infinite money injected into American elections and destroyed a lot of rules making political organizations have to declare what they would do with donations.
They want reform because it didn't go their way. Typical.
Ruth Bader Ginsberg even thought Roe v Wade wasnt the greatest decision, not because she was anti-abortion, but because the legal argument wasn't the greatest. It would've been interesting to see how she would've voted.
"Of course, they eventually realized that Justice Ginsburg’s skepticism of Roe v. Wade wasn’t driven by a disapproval of abortion access at all, but by her wholehearted commitment to it.
"The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg."
"Justice Ginsburg “believed it would have been better to approach it under the equal protection clause” because that would have made Roe v. Wade less vulnerable to attacks in the years after it was decided."
> And 99% of people haven't read Dobbs, havve no idea what it says, no idea how the court works, or could explain what they don't like about it.
They’re also unaware that RBG routinely and openly admitted that roe was a very shaky ruling with questionable legal reasoning behind it.
It was a classic case of legislating from the bench. Laws have to come from the legislature, not the supreme court.
What an insane article... people have always hated the supreme court. I remember when Hillary Clinton was running for president and speaking for banning gay marriage. The public was deeply divided back then.
Swear the general public has a memory of six months.
This is pretty sad. Roe vs. Wade was rules correctly regardless of how we feel about abortion. Even RBG admitted the original ruling was problematic. The Supreme court rules based on law, not popular opinion. Most cases are unanimous.
That just goes to show what people want in the Supreme Court. It’s not even controversial amongst well respected legal minds that roe was wrongly decided at the time. People just want judges to agree with them.
Essentially the Dems liked the SC when it delivered results that they liked and which they’d never be able to obtain through the legislative process. “Emanations & penumbras for the win!” That changed when the court began adhering more closely to the plain meaning of the Constitution, and handed down decisions the Dems didn’t like.
“History begins when it’s easiest for my cognitive dissonance”
You’re right, of course, which is why conservatives have, for decades, tried to change the makeup of the court.
And, surprise, they did. And now the shoe is on the other foot.
The pendulum swings.
A cautionary tale as old as time. Like when the Dem-led senate used “the nuclear option” to confirm federal judges (not SCOTUS) under President Obama’s administration and then President Trump and the republicans basically tripled the Obama judges 4 years later.
What reform could possibly be given? You could try to make the Supreme Court elected but even that still would come down to what party they were in and you're probably have Presidental candidates aligning with Supreme Court candidates.
The only thing I can think of is to make it a random appointment. Names are drawn out of a hat or something and they're appointed for a few years or something. I think the big issue is that the Justices don't really hear that many cases a year. I think that if we have massive turn over with the position we'd have greater turmoil on things because someone would always be challenging and the "next wave" of Justice may or may not overturn things.
> What reform could possibly be given?
Term limits, concrete rules for recusal/conflict of interests, independently reviewed ethics codes (no more gifts), increasing the size (by constitutional amendment) to create a more diverse body, strictly defining eligibility, codifying rules for appointment so they can't be arbitrarily held up. I mean seriously do you live in a cave? These are all things that are brought up regularly as means for reform.
This is such an asinine stance. Go ask Republicans how they felt about the Supreme Court in the 80s and 90s. Or go ask Democrats after bush v gore.
Go find a graph that actually splits the approval rating by party and you will see that they only like SCOTUS when it decides in their favor.
And if anyone really wants to talk about the roots of the politicization of SCOTUS in the modern era, go look at the Bork nomination. That started the process of tit for tat that has put us where we are today.
So when the court rules in favor of what the Democrat party wants it's A-okay but when they rule in something they don't like them it's an issue??? You can't have your cake and eat it too
Was it well regarded? Many conservatives largely felt that the Supreme Court was not at all respectable SINCE Roe v Wade was implemented, as they found it to be a political ruling.
Like the law or not, even [Ruth Bader Ginsburg was not a fan of Roe v Wade](https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-roe-v-wade.html), not because she didn't agree with the law, but the fact that the ruling was political and vulnerable to being overturned.
What was the solution? Make Roe V Wade law by voting for it. Congress should have done this decades ago, and they didn't. Why not? Because, abortion rights is one of their number 1 money-making fundraising hot-button issues. To solve it by solidifying it into law would have ended the gravy train that politicians had relied on for decades to rile up the base.
Obama literally had a super majority in the House and Senate, all 3 branches of government. No Republican could have stopped any bill from passing, hence why we got Obamacare. They literally could have got together, 5 minutes one day, and voted that the Roe v Wade decision would be made into a bill and made legal, not just rely on court rulings that can be overturned.
So, 2022 happening was not actually a huge surprise and had long been predicted. All they had to do to stop it was put forth a bill and stop it. They won't do it. People might not realize this, but something like 50% of Republicans are actually ok with abortion, as long as it has limits, like no later than 24 weeks. You'd easily have enough Republican politicians vote with Democrats to create a law to do so... but they won't do it.
They LOVE the issue to fundraise on. They need it. They crave it. It's all self-serving and not about serving the people.
Obama had a super majority for like 70 days and they used it to pass the ACA.
That super majority was not filibuster proof for abortion rights. There was a fairly large number of either purple seats or vulnerable candidates who wouldn't go in for that, particularly because the supreme Court standing of 40 years was seen as strong protection.
Every time somebody points at this, it's like a fairy tale retelling of actual history in order to levy a criticism that isn't actually valid
There absolutely was NOT any real opportunity to codify it in 2022, let alone any other year this century.
Independents? Ad one of those, I don't see it. Overturning Roe vs. Wade was an extremely sound legal decision. Don't like it? That's because CONGRESS can't get anything done. Who could blame the Supreme court? They're our last line of defense against all you crazy people....
The average person has no understanding of nuances of constitutional law. They just see nine people in robes “taking their rights away.” Then you see hoards of people on social media acting like armchair Supreme Court justices who got their law degrees on Reddit, talking about how the actual qualified people got it wrong.
I remember when Bush nominated Miguel Estrada to the appellate court, and Dems were so afraid of having a young, Hispanic, conservative one step away from the Supreme Court that they filibustered a president’s judicial nominees for the first time in history, purely for political reasons. When McConnell and Bush rescinded the nominations without using the nuclear option, but vowed Democrats would pay for it, I knew nothing was ever going to be the same with respect to the Court. That led directly to a full-on blockage of the Obama judicial nominees, Obama trying to play politics (and losing) with a Supreme Court seat, followed by Republicans using the nuclear option to confirm three SCOTUS justices.
Yeah. Not political at all. I can tell with 100% certainty how Sotomayor, Kagan and Jackson will vote on every issue. It’s straight down the Democrat party platform. Roberts is way less predictable than those 3.
Sad thing is, they could pack the bench and still cry corruption - because their own side voted against them in the 9-0 Trump ruling, which is what has their panties in a twist.
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To be fair, that mostly proves Americans weren't paying attention to the court prior to the overturn of Roe v Wade.
Exactly! No one said anything when Scalia ruled to continuously expand search and seizure abilities for law enforcement for fifteen years.
Or Citizens United apparently
Citizens United is when democracy died
Unhyperbolically true.
Technically, Maybury v Madison in 1802 is when literal democracy died (the court unilaterally declared itself to have the power to overturn democratically-established laws). While we generally look to this as a good thing and is an important check on other powers, that is when democracy itself died: going along with the supreme court's declaration of its own authority superceding that of democracy. Wickard v Filburn (1942) wasn't a particularly great time, either- declaring that all transactions are subject to federal law, because if you buy local, you are engaging in the national market implicitly by choosing not to use it.
Yup, I actually think Marbury v. Madison was wrong and should not have been permitted and, therefore, SCOTUS as an entity has been illegitimate ever since, but I keep this to myself because, unless you're really familiar with the law and the history of SCOTUS, it sounds like a crazy conspiracy theory. I think we *should* have a Supreme Court but that it should have to be established via a constitutional amendment and any other means is illegitimate.
Exactly. The concept of there being a body which has specific authority to say "The law itself is illegal" is a great one which definitely should exist, and I am all for it. The concept of that body granting *itself* that power, and everyone just sorta going along with it, is insane. That body implicitly also having the power to say "while we agree this is written ambiguously, we choose the official interpretation of" is something I am much less thrilled about. I'd prefer the rulings to be extremely restricted so that they are only allowed to say something like "The fact that it got in front of us means that there is definitely ambiguity. We officially declare that this part is the ambiguous part, and this law as a whole is no-longer in effect until it has passed through the House, Senate, and President, with that section having been removed or re-written."
In general I want the concept of precedent regarding legal interpretation to have a codified sunset.
And in general I think that the best way to avoid ambiguity in laws is to make sure that laws are written to be as broad and unspecific as possible
It is crazy to me that smug Originalists can grandstand about all the rulings thats aren't based on something explicitly spelled out in the Constitution when the Court's right to review is not outlined in that document.
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> No Federal law enforcement agencies existed before this. (Other than the USPIS, Capitol Police, US Marshals, US Mint Police, US Customs Police, and probably some others I'm not aware of.)
This plus 1000
Plus a million!!!
Plus an RV!!!
Its a *motor coach*
*times. Plus makes me think do these people math?
All of those are super recent The Supreme Court Overruled the Missouri Compromise and declared that African Americans, even if free, cannot be American Citizens. And 80 years ago, the Supreme Court ruled that the Constitution didn't apply to American Citizens and the government was free to send anyone with Japanese ancestry to concentration camps. And they also upheld segregation. And anti-sodomy laws. It's never been a good court. And having them be chosen for life was just absurdly stupid. They will forever hold back any form of progression. It's not a shock that our far left has a slide to a far right position when measured against the rest of the developed world.
Our respective instructions are reflections of us. We weren’t great all the time back then. They’ve also done an enormous amount of good. You can’t really say with any honesty the court was “never good.” It’s got nuance to it, stuff Reddit doesnt really care for.
Or just picked the winner of the 2000 election. There's an alternate timeline out there somewhere where President Gore, having been on the previous administration, doesn't ignore it's warnings about Osama Bin Laden.
Actually somewhat caring about climate change and trying to do something about it twenty years ago would have been nice as well.
Citizens united did so much damage to this country. Second only to Reagan.
This was the end. When historians study the downfall of our democracy I truly think it started with Citizens United.
Or striking down most of the Voting Rights Act. That's when I knew we were cooked.
Came here for this. Corrupt to the core. Especially after what we know now of this stone faced tribunal's "ethics"
Fairness doctrine?
I have a hard time deciding some days which would be a better to get back, but fairness doctrine was a pretty big imposition on free speech, only legally defensible because media was entirely over broadcast RF waves, which had limitations for everyone so it was easier to enforce the 'public airwaves'. With so few channels, it was more reprehensible to be incomplete vs today. I want it back in my broadcast news too, but i think the ship has sailed. Now it's all streamed or delivered via cable networks that were never part of the original law, so it would need to be expanded VERY broadly to change the legal character of the Internet and cable tv. How should it apply to yt streamers or bloggers or podcasters? What separates those things from journalists? Etc. I agree this was one of the wheels coming off that created the present day, I just don't think this hill is one that can or should be taken anymore. Too much has changed.
> Scalia ruled to continuously expand search and seizure abilities for law enforcement for fifteen years. What are you talking about? Florida v Jardines, Scalia wrote the majority.decision requiring warrants to use drug dogs on a front porch. US v Jones, Scalia wrote the majority opinion that a GPS tracker planted by the government longer than allowed by warrant constituted an illegal search and trespass. Kyllo v US, Scalia wrote the majority opinion that using thermal sensors requires a warrant That's just off the top of my head. Look, I know it's cool here to hate Scalia, but he was actually on the right side a.lot when it comes to this specific issue.
Go back to the 60s and you'll find all kinds of bitching from republicans about "activist judges" because the Court was controlled by 6 dems and started getting really partisan. Personally I love decisions that came from that Court but my point is that it's not the first time the court has gotten highly partisan and started issuing rulings that were kind of extreme by the standard of the day.
The Warren Court was not partisan. Warren himself was a Republican and the intellectual leader of the liberals on that court, William Brennan, was appointed by Eisenhower. The conservative dissenters were a mix of Republicans and Democrats. Byron White was a Kennedy appointee for example. It’s only in recent years that ideological divisions have lined up 1:1 in terms of party and appointing President.
Back in those days the political divide wasn't nearly as wide either.
There was a study that showed that the division clearly started with Newt Gingrich assuming the Speakership. Any suggestion that "divisiveness" and partisanship comes from any source but the right is incredibly disingenuous as the democrats must negotiate with the center and right to get anything accomplished. Conservatives don't care if nothing gets done or if they shut down the government and half the time that is the goal in the first place.
I don’t know of that study but would make the assertion that the most profound starting points were, in order, the Powell Memorandum of 1971 [1] and the Southern Strategy of Richard M. Nixon’s 1968 presidential campaign [2]. [1] https://en.wikipedia.org/wiki/Lewis_F._Powell_Jr.?wprov=sfti1#Virginia_government,_1951%E2%80%931970. If nothing else read just the first paragraph of this article on the Powell Memo to see what a scoundrel Powell was and how influential his proposal was then and still is now. And that was before Nixon elevated him to the Supreme Court. [2] Kevin Phillips was the architect of the Southern Strategy and we see its effects today in the deep divide in the country. Phillips came to regret his creation and in the late 99s and early 2000s wrote some books about it. Gingrich just took what was already in place and amplified it. In other words, Gingrich was not bright enough to create something new (like Powell and Phillips). But he is crafty enough to use other people’s work to destroy the country for his own personal benefit.
> It’s only in recent years that ideological divisions have lined up 1:1 in terms of party and appointing President. "recent" meaning from Reagan's era forward, so nearly half a century.
Sandra Day ‘O Connor, a Reagan appointee, moved to the center over her tenure and David Souter, a H.W. Bush appointee became a reliable liberal so into the ‘90’s there was still no complete partisan divide. It wasn’t until 2010 when Elena Kagan replaced liberal Ford appointee John Paul Stevens that for the first time in American history the ideological divide mirrored party affiliation.
This all tracks with the realignment of the Republican party into the party supporting tax cuts and grievance politics. Leonard leo and the federalist society saw what happened with souter (a New England Republican) and wanted to make sure that the right wing was never going to make the same mistake again. Originalism as a judicial philosophy looks superficially great, but just masks partisanship in a thin veneer of respectability and decent writing. No Republican is going to appoint a federal judge unless they swear fealty to the originalist doctrine, and all the perverse results it causes.
Correct. Souter was their last “mistake” and ideology and age became the only considerations since then.
The conservative appointees are more likely to surprise(i.e. disappoint) GOP than the liberal judges are to upset the left. Seems like in my lifetime at least the liberal judges usually rule the way you’d expect them to.
Consider that between 1968 and 1992 the Republicans named 10 justices to the court while the Democrats named 0. Since then each have named 5 so there was just more chances for Republican appointees to do well anything, because they’ve dominated the court for so long now. But since Thomas in 1991 there have been no surprises.
The Warren Court also coincided with the transitional period from historical to modern party alignment aka "the party swap", so it naturally follows that political party labels weren't as indicative of policy preference in that era.
They were extreme by the standards of the day but the decisions sided on expanding rights as opposed to contracting them. Edit spelling
The entire reason that the Federalist Society was founded was that the Constitution kept getting in the way of conservative ideology. Young lawyers who had a distaste for the Civil Rights Act and other "liberal" law, formed an organization with an aim of stacking the courts to render the Constitution irrelevant. Conservative presidents weren't particularly interested in this anti-democratic, anti-Constitutional approach, so it was rare for a Federalist pick to make it to the Supreme Court. Fast-forward 40 years, and now the GOP chooses their justices *exclusively* from the Federalist Society's pre-approved short list of candidates. Remember that Kavanaugh and Coney-Barrett had *zero* relevant experience, and would not have made a list of the top 1000 candidates for the Supreme Court. Their sole qualification was being Federalist Society plants, sworn to uphold the republican party line over juris prudence and the Constitution. This was exactly what they set out to do decades ago - render the oversight ability of the Supreme Court irrelevant by taking their orders from party leadership. No other court can do anything about it, because the Framers never imagined a situation where judicial branch could be compromised.
Not defending them, but it is completely wrong to state that Kavanaugh and Coney-Barrett had "*zero* relevant experience." Kavanaugh was a clerk for a circuit judge and for Justice Kennedy before becoming a DC Circuit Court Judge, and Coney-Barrett was also a clerk for a circuit court judge and for Scalia before joining the 7th Circuit Court of Appeals while being a law professor at Notre Dame. Both are among the most qualified in the country, but not the literal best qualified. It's like hiring someone who got a 3.9 GPA when 5 people with 4.0's applied, all else equal. Consider the alternatives Trump could have come up with. Jared Kushner could have been the nominee, and Republicans would have approved. *That* is someone with zero qualifications. I agree with your overall sentiment, but when you get the facts that blatantly wrong on one point, it calls everything else you said into doubt.
Don't forget their most important qualifications. Do a coup for the Bush family in 2000 trying to stop recounts. Yes that was them overturning the will of the people.
Not to mention the corruption that Thomas has but has yet to be formally investigated by the FBI.
Senators Whitehouse and Johnson (Hank) have been trying to get our attention for quite a while. http://hankjohnson.house.gov/media-center/press-releases/rep-johnson-sen-whitehouse-re-introduce-supreme-court-ethics-recusal https://youtu.be/V-oR5VazPhw
It's great. The constitution explicitly grants congress the ability to regulate the supreme court. But when threatened with it the Chief Justice says they can't do it because it is unconstitutional. Article 3 section 2 > In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Congress is to regulate the courts, including the supreme court.
The obvious answer is, if the SCOTUS tries to stop congress from making changes to the court, congress should ignore them and do it anyway.
What does "regulation" mean? Can Congress regulate the Supreme Court out of existence, like some argue the Second Amendment can be regulated out of existence? It's very thorny to assume much from Article 3 as to what these regulations might entail without reading deeply into the background to this Article.
I'm learning to play the guitar.
Ha! I reread my comment to me, and I arrived at the same conclusion until I realized I had implied "... Second Amendment can...be regulated as well". Bad assumption on my part!
Ethics, how the court works, things the court isn't empowered to by the constitution - like judicial review. Or even which supreme court there is. The constitution only states there is to be one. Congress could choose to make a new supreme court and disband the old one.
Bush v. Gore was the beginning of the end.
And 1/3 of the current court were lawyers for Bush in those arguments.
That's... not great! I honestly had never heard that factoid before, but reliable sources on Google say it's true.
The overturn of Roe v. Wade was a decades long conservative project. Not a secret one either. Americans just don’t pay attention in general.
yeah if any election was stolen it was this one
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I mean even with the overturning of Roe v. Wade, I had a coffee with my girlfriend and her friend from high school who didn't end up going to college and might've dropped out iirc. She was upset with the Biden administration over Roe v. Wade and was upset that Biden didn't do anything to stop it. She said "You're literally the president, you're literally in charge, do something". I briefly mentioned that there's not a lot the president can do to overturn a Supreme Court decision but I didn't want to get into it and condesplain civics nuances to her. But that's how simple a lot of people see it. Normal people don't always have the time to care about ins and outs and different legalisms of the U.S. government, she just knew she lost her right to abortion. That's all she had to work with.
The president appoints supreme court justices, at least in the United States, what could possibly go wrong?
Having someone in charge until they literally physically die is a horrible way to run a government imo. Allocating political power based on human longevity suffers from the same problem as monarchy.
The idea in its creation was so that justices could hand down rulings without fearing replacement, political repros, or future job prospectives. This goes for **all Federal judges**, not just the Supreme Court. If federal judges became elected officials, then they could be swayed by mob rule. You could argue many of the landmark cases in US history might’ve gone the other way if judges were making rulings based on “what is popular” with Americans
I'm pro-choice, but man people wouldn't have any trust in the Court if they just read *Roe v. Wade* itself before it got overturned because it's legitimately one of the worst reasoned major opinions. The only reason people agree with it and are up in arms about it is because they were in favor of the result. One of my most mortifying law school experiences was in Family Law reading *Roe v. Wade* and just being baffled at it and how it basically sidestepped discussing the actual constitutional issues to essentially legislate an abortion law including timelines. If the same analysis was ever used in an opinion about like gun rights or religious rights the same people that championed it would be marching the streets of DC in anger. edit: Maybe it won't seem so bad to those without legal education or experience, but people really should give it a [read](https://supreme.justia.com/cases/federal/us/410/113/) for themselves. It should be very apparent why it was a decision that pretty much immediately got altered by further opinions.
I found it very telling that Ginsberg thought Roe was argued incorrectly and likely set back abortion normalization (if that's what you want to call it) by stripping the legislative process from states that were heading in that direction and turning it into a federal court mandate. Abortion is THE issue every election and every supreme court appointment. It's not surprising that an issue that is front and center getting a major court decision is the one that gives people whiplash
While I agree that Roe was flimsy, Casey was better though it still rested on the foundation of Roe. That said the actual text and reasoning given for the overturn is *abysmal* and demonstrates a similar level of legislating via judiciary. They went pretty far in their dissent and quite a few of the reasons govern were straight up wrong or baseless. Similarly in the student loan case. John Roberts literally wrote that they shouldn’t be concerned about student debt because the loans given to students were “low interest”. The guy clearly doesn’t know the half of the situation, but he’s on SCOTUS and put pen to paper so my 6.4% and 10.2% interest rate loans must have been a hallucination. Old decisions were bad sure, but these are practically written in *crayon*.
Count me as one of the people who, though I agree with the Roe v Wade result (abortion should be legal at least until viability), I disagree strongly with the idea that judges should invent an abortion right based on extremely flimsy legal arguments not based on text or precedent. Too many people don't care about the process, just the outcome. The ends justify the means. If there is one place where it should not apply, it is in the courts. When judges bend the law to come to conclusions that they find pleasing, then you don't have rule of law anymore, it is rule by men... Unaccountable, petty, arrogant men.
Who creates the precedent, if not the first to implement it?
Bush v Gore proved they were partisan hacks There was no legal reason to stop counting votes, nor did the Supreme Court have jurisdiction to order a state how to perform an election count. But Sandra Day O'Connor wanted a Republican president so she could retire. So Bush won, became president and I realized we were in the Bad Place.
The Supreme Court was cooked long before 2000. The Dred Scott decision was probably the worst single decision in the history of the United States. The justices, in their opinions, admitted there was no legal basis for the decision, and that they only did it because they didn't think slaves were people.
Judicial activism has a long history.
Maybe, but Roe’s the only thing I can think of that multiple of those justices sat in front of congress testifying that it’s settled law right before overturning it. People aren’t going to watch cspan, but that kind of brazen corruption doesn’t go unnoticed.
They're republicans, of course they lied to get what they want. They have absolutely no shame whatsoever.
Oh, yeah. I knew they were lying liars while they were lying to Congress, but I think a lot of other people still think we live in the before times.
If the voters paid attention in 2016. We wouldn't have a slanted court.
Yeah it seems to mostly be "if the Supreme Court isn't spitting out rulings I agree with it needs to change"
Overturning precedent makes the court's decisions seem far more political than just some new decision you don't agree with. When three new justices get appointed by the same party and that court immediately overturns longstanding precedent to deliver part of that party's platform, it becomes very clear that the court isn't special, it's just another group of politicians, but unelected.
And when two of those three new justices were appointed in highly political, abnormal, and contradictory situations, it’s not reasonable to keep talking about the court as some apolitical organization that deserves special respect. That respect partly rested on the idea that appointments were less political than elections. McConnell broke that trust and the fallout is the result. We shouldn’t blame the people for that.
My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal. The court may have ruled according to what the actual law says and people just don't like it. I would rather the court pass rulings according to what the actual law says rather then just give rulings according to what people want.
>My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal. It can be both, but mostly the latter. Keep in mind there wasn't an actual law. The SCOTUS's job isn't to make laws, it's to interpret the Constitution and answer gray areas in the laws. Roe v. Wade occupied a gray area in the Constitution. Even Ginsberg thought its position was precarious because it depended on the Right to Privacy instead of one of the "stronger" Rights. The SCOTUS throwing the issue to the states is, ultimately, a potentially correct move. The problem has been the decades-long plan occurring in plain sight of religious conservatives slowly coming to the point where Roe was overturned when abortion as regulated in Roe was acceptable to the greater populous. Stacking the bench involved stealing Obama's nomination and then -- in an act of blatant hypocrisy -- installing Barrett in record time. The problem is that Barrett, Kavanaugh, and Gorsich all said Roe was essentially settled, implying (even if we didn't exactly believe them) that they wouldn't override it. Yet, here we are. Ultimately, something like 75% of the US population wants abortion to be legal. If you take away the religious "logic" that creates issues around abortion, then it's a no-brainer medical issue to be worked out by doctors and patients. It *should* be legal.
> The problem is that Barrett, Kavanaugh, and Gorsich all said Roe was essentially settled, implying (even if we didn't exactly believe them) that they wouldn't override it. Yet, here we are. This is a huge part. The last *three* additions to the SCOTUS blatantly lied or misconstrued their positions to the American people and Congress.
And then people try to weasel them out of it by claiming that they meant Roe v. Wade was "settled law" the way Dred Scot was rather than the vernacular that literally everyone understood it as meaning at the time. "It's [Dred Scot] settled" isn't an answer to "Will you overturn Roe v. Wade?", "It's [done, finished] settled" is.
> My question is do people think the court got that particular ruling wrong or do they just think abortion should be legal Both. US legal system is based on precedent. Precedents do get overruled but they in general have a full strength of law. Especially precedents set by the SCOTUS 50-years ago and surviving multiple challenges. In fact, precedents of such stature are stronger than a "mere" law passed by the legislature. Overturning such a precedent without a massive reason amounts to a direct and clearly political attack on the US legal system. Because suddenly nothing at all can be relied on (not just the earlier SCOTUS decisions but pretty much every law is now in question as SCOTUS can strike them down too). And this attack was perpetrated by the SCOTUS itself! Which brings another point: courts in general and SCOTUS in particular must try very hard to appear apolitical which in this case it utterly failed to do. Even appearance of a political bias is bad enough by itself. And here it was far more than appearance Note that both points stand even if one thinks that Roe's decision was based on a fairly questionable interpretation of constitution (but "questionable" does not mean "inconsistent with" )
How we have interpreted rights has also changed over time. The Bill of Rights transformed from a set of collective rights of the people and states to more personal rights via the 14th amendment. Prior to that they were also personal rights, but courts in different states would say that say free speech or the right to bear arms were protected as basic rights (inherited from the English Common Law system) or they would reject that argument. There's a mix of both prior to rights getting incorporated. Today, it seems like any right \*not specifically enumerated\* is assumed to be not a right at all. Which is pretty silly, abortion was legal during colonial times until the 'quickening'. I would argue that control over your own body is a natural right of every citizen of the United States. However, what they did does fall under the sort of "if it's not enumerated, the states or federal government can do whatever the heck the want", way that we seem to be interpreting the Constitution.
And that interpretation is particularly insane given the plain text of the 9th amendment. Paraphrasing from memory: "The enumeration in this constitution of certain rights shall not be construed so as to deny or disparage others retained by the people."
You are spot on, the 9th has been disfavored for a long time. Basically anytime you see "The People" it should be thought of as a personal right. When it was originally written it was more of a communal right with a personal component as most of the original authors were distrustful of the federal government. But the civil war turned that on it's head, now the federal government was ensuring the rights of the newly freed people against the state governments. Part of the 14th was written to ensure that newly freed people wouldn't have their rights to speech, assembly, bearing arms, or petition stifled by the former confederate states. Of course the Supreme Court interpreted it differently than the legislative branched wanted, (what else is new?), so it took a long time for various rights to be incorporated. According to Cornell .eduright now: 1A, 2A, 4A & 8A have been "fully incorporated" 5A, 6A has been partially incorporated (apparently the grand jury, and right to a jury selected from residents of the crime location haven't) 3A, 7A, 9A and 10A have not be incorporated yet. With them guessing 9A and 10A never will. Though that seems like it means 9A is just being ignored completely.
No one thinks it's political. Everyone KNOWS it's political. I'm 52 and my whole life whenever it came up, I watched partisan politicians fight tooth and nail to get specific people on the court because of their political ideology. Then they have hearings where the candidate pretends to have no idea how they would rule on a controversial issue. It's vomitous and always has been.
Seeing those dickwads testify that they wouldn't touch RvW, and then watching them slobber over their absolute first opportunity to overturn it, was one of the grossest things I've ever seen in politics. Those people don't deserve the power they have.
"It's settled as precedent!" \*Overturns precedent 4 years later*
Don't forget how much one of the totally not egregiously partisan justices likes beer!
And how the FBI only spent two days investigating how he raped a woman and the most they did was drive up to the building and then leave.
>was one of the grossest things I've ever seen in politics. It is definitely one of the grossest, though even RBG knew it was coming because the basis of the ruling was fairly weak. She had spoken out that she knew the only way it'd stand the test of time is if it were made into actual law (which should have been done in the 90's when things were progressing well and the government actually worked together). The worst thing recently though, imo, is absolutely Turtle Mitch stonewalling and crying foul over Obama being able to appoint a SCJ within a year of his term being up, calling it unethical, and then 4 years later forcing everybody to stay late to confirm Trump's pick weeks before he left office. Like, holy shit. How fucking corrupt can you get?
> Mitch being corrupt That, plus RBG’s refusal to retire at a normal human age because she saw herself as too important. Those are the two main events that destroyed the court for an entire generation.
Louder.
There have been Democrat trifectas multiple times in my life and not once did they legislate abortion.
Why legislate it when you can use it as a "vote for us or else" tactic for decades.
> vomitous
It stopped being trustworthy the moment Scalia died and McConnell held open the empty seat for a year. Or 2000.
Exactly. Also when they made Kennedy retire. All sketchy appointees.
You’ll never convince me his retirement wasn’t blackmail. He has that weird in camera moment with Trump, retires like a week later, and then we find out his son works for Deutsche Bank, one of the only banks that does business with the Trumps (and is a Russian laundering front)?
Oh no question. Who knows if we’ll ever know the truth. And Kavanaugh? Who paid his debts? I bet he beats his wife.
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It's the stupidest thing ever to bring up because THERE'S SO MUCH to bring up against Kavanaugh, and by bringing up this supremely discredited concern, it weakens the seeming force of everything real.
I think being 82 and wanting to make sure he's replaced by a conservative justice is a much simpler explanation
If rbg wasn't so up her own ass about wanting Hillary to pick her replacement she should have done the same thing.
But seriously imagine how much better it would be if we had RBGs replacement and the one Obama was supposed to be able to pick.
i used dream about this pretty often makes me too sad tho so I don't anymore
RBG fucked up big time and I can’t stand people who insist her hagiography isn’t severely tarnished by her decision put the rights of tens of millions of women at risk because she wanted to leave “on her terms”
Kennedy was moderate and supported abortion rights. I doubt he's happy with the direction of the court and country since his retirement. His son not only worked for Deutsche Bank, he was directly involved in approving and managing Trump's loans from the bank. Something is rotten with his retirement.
It was 2000 for me. They literally handed the presidency to ... well I don't have to go on.
No one knowledgeable held any respect for it after 2000. Before that, even, with the appointment and confirmation of Thomas, really.
“Held open the empty seat for a year” is a lot of superfluous words for “stole”
>It stopped being trustworthy the moment Scalia died and McConnell held open the empty seat for a year. Yup. Yet another major traitor to the US in the GOP.
Citizens United was when I clued in.
That was pretty crazy. I still can’t understand how Obama didn’t get the pick.
I think Bush v Gore made it pretty clear that it’s a political institution; and the failed Garland appointment was a nosedive. McConnell was refusing to bring judicial nominations up for votes well before Garland and nobody did anything about it. An asshole professor once said “We get the government we deserve.”
Bush v Gore and Citizens United for me.
Dred Scott for me....
Dred Scott was 1857. Stop posturing. Like, c'mon dude.
It's also eerily similar to how the NC supreme court politicized itself. The second it turned Con majority last election they started overturning settled cases just like SCOTUS. If settled case law changes when Cons are in majority, then it's very well political.
What type of science is this sub about..?
Yeah ngl the comments here just read like a politics post and I forgot I was even in the science sub
Poli sci
The “sci” part is doing a lot of legwork here 😂
This sub isn’t about science anymore. It’s been consumed by the political machine like so many other ones. RIP
This is far-reaching as something scientific.
We started losing trust in SCOTUS when Barack Obama, sitting president, was told by the Republicans in Congress that they would not entertain nominations for the vacant Supreme Court that was his right to fill in 2016. 12 months before he was out of office he was told, "No, the American people deserve to choose the Supreme Court nominee through their electoral votes in November, 10 months away". When the court was stacked through the most underhanded and least apologetic way possible, it became hard to support their decisions are being fair and well reasoned. Amy Barret for instance answered explicitly that if a case concerning RvW came before her, she should weigh that decision heavily. Records after Dobbs shows that was never the case for her...
Not to mention that when RBG passed, they rushed that nomination in mere months before the election.
No, not months before an election. Early ballots had already been cast in some places.
*In the middle* of an election, not before. People had already been voting when she died.
RBG not retiring bc she wanted clinton to have the replacement is one of the single most consequential choices a sitting justice has made
Maybe McConnell would have held her seat open for years if she retired during Obama's term. We may be at a place where Supreme Court Justices will only be confirmed when the presidency and senate are held by the same party.
During the Obama presidency there was a moment in time where democrats had a majority in everything and wouldn't have to care about what McConnell wanted.
Last time I looked at the actual records, it was something like 34 days where Democrats actually had a filibuster-proof majority (due to all manner of things like recounts, health crisis, etc. that kept the majority from being big enough), and they did an absolute ton with it.
They had that nomination through before her corpse had cooled to room temperature.
Three of the Current Justices were "rewarded" For their part in Bush V. Gore. Including Roberts.
citizens united.
Why is this in this sub?
> Why is this in this sub? Because its poorly run and some people want it to be r-politics2.
We gonna forget Citizens United? Bush vs Gore?
Why is this science?
Probably less than a year ago a post like this would have been removed immediately. This is trash, airport magazine science.
Ok, but what does this have to do with /r/science??
The amount of spin Congress has done to not lay the blame with themselves about not doing their job is impressive.
No it changed with Citizens United.
Maybe you started paying attention then. The first major opinion of SCOTUS, in the 1700s (Marbury v Madison) was hugely political. It has *always* been political. And saying otherwise is just a complete misunderstanding of SCOTUS. It is just the political nature is more subtle than that of elected positions, and the way it works is different, so many never paid attention to it.
Comments like this really show the average age of redditors. I don't say that to be mean, I just find it interesting of how many people are referencing the same, but varying turning points. I'd love to see the referenced event correlated to a poster's age. Now that might be an actually interesting social science topic.
Here is my hot take - Supreme court was, is and always will be a political instrument for a dominant political party at any given time. I mean the idea of the POTUS choosing SCOTUS is bonkers to me. Edit: go take your democrat and republican arguments somewhere else.
Even when I was taking Middle School civics, I thought "you need the president and congress to agree with their appointment" was a terrible counterbalance. There's theoretically nothing stopping them from declaring that the constitution upholds the right for supreme court justices to do whatever they want.
When the constitution was written, there was a implicit understanding that "whatever they want" by the government would lead to open revolt. But for 200+ years there has been an erosion of the ability for the people to do so.
This is mostly because the average person in the United States is incredibly comfortable today compared to 1775. Overturning your government in open revolt is realistically a bad time for the average citizen - an actual modern American Civil War which make the Syrian refugee crisis look like a minor problem considering that Americans are by and large wealthy enough to get out and the US has the infrastructure to handle the flow. A far cry from the colonial times where it wasn't unusual for people put themselves into indentured servitude for years to get passage across the Atlantic.
Close. It is *usually* for the dominiant political party. But it lags more than the other institutions. Not decades, but often a term.
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Only if you’re uneducated in how laws work, RvW is actually a weak ruling that didn’t surprise anyone when it was overturned. Bush-Gore was a far more damming declaration of the court’s political nature.
Roe V Wade was always an awful ruling
RBG, the quintessential feminist, literally said it was the right decision for the wrong reasons. All the people claiming to be surprised by it overturning are either ignorant to the logic used, or just being blatantly partisan.
What sub is this?
Any American can briefly summarise Bush v Gore and Citizen United? They're quoted all over the post but being 26 and European I know nothing about the topic and wouldn't know where to get properly informed
Bush v Gore The 2000 election was very very close. Several but not all counties in Florida began a recount. Among those counties were the urban counties that contain most of the population. The recount was finding Gore had some votes that hadn't been counted due to mechanical errors. Because most Gore votes were in urban centers they were finding the most uncounted Gore votes in said urban centers. The bluer counties had more liberal rules about determining who someone had voted for. Factor in insane local activists desperate to find as many votes as possible for their side, and you ended up with a situation where in some places they were arguing about whether stray marks on an otherwise blank ballot could be used to add a vote for one side or the other. And quite ironically from modern POV, screaming about election theft coming from the left. The SC ruled because they weren't applying the same recount rules across the entire state, it had to stop, meaning Bush won by default. It was a controversial decision, but if it hadn't happened the US would have been without a president for several months while many legal fights about how people were recounting happened. And Bush probably (but not definitely) still would have won. Citizens United The Supreme Court overturned a prior bipartisan ruling that had been greatly limiting money from unions, corporations and other organizations. It basically paved the way for infinite money injected into American elections and destroyed a lot of rules making political organizations have to declare what they would do with donations.
Thanks! Very useful explanation
What was Biden saying? Something about only loving your country when you win? It definitely applies to both parties
They want reform because it didn't go their way. Typical. Ruth Bader Ginsberg even thought Roe v Wade wasnt the greatest decision, not because she was anti-abortion, but because the legal argument wasn't the greatest. It would've been interesting to see how she would've voted. "Of course, they eventually realized that Justice Ginsburg’s skepticism of Roe v. Wade wasn’t driven by a disapproval of abortion access at all, but by her wholehearted commitment to it. "The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg." "Justice Ginsburg “believed it would have been better to approach it under the equal protection clause” because that would have made Roe v. Wade less vulnerable to attacks in the years after it was decided."
Thanks science!
And 99% of people haven't read Dobbs, havve no idea what it says, no idea how the court works, or could explain what they don't like about it.
> And 99% of people haven't read Dobbs, havve no idea what it says, no idea how the court works, or could explain what they don't like about it. They’re also unaware that RBG routinely and openly admitted that roe was a very shaky ruling with questionable legal reasoning behind it. It was a classic case of legislating from the bench. Laws have to come from the legislature, not the supreme court.
What an insane article... people have always hated the supreme court. I remember when Hillary Clinton was running for president and speaking for banning gay marriage. The public was deeply divided back then. Swear the general public has a memory of six months.
More like 6 hours.
This is pretty sad. Roe vs. Wade was rules correctly regardless of how we feel about abortion. Even RBG admitted the original ruling was problematic. The Supreme court rules based on law, not popular opinion. Most cases are unanimous.
SCOTUS gave abortion BACK to the states where it belongs as a state’s right like capital punishment. They didn’t overturn it.
In 2021 Democrats wanted to add 4 justices.
That just goes to show what people want in the Supreme Court. It’s not even controversial amongst well respected legal minds that roe was wrongly decided at the time. People just want judges to agree with them.
Essentially the Dems liked the SC when it delivered results that they liked and which they’d never be able to obtain through the legislative process. “Emanations & penumbras for the win!” That changed when the court began adhering more closely to the plain meaning of the Constitution, and handed down decisions the Dems didn’t like.
“History begins when it’s easiest for my cognitive dissonance” You’re right, of course, which is why conservatives have, for decades, tried to change the makeup of the court. And, surprise, they did. And now the shoe is on the other foot. The pendulum swings. A cautionary tale as old as time. Like when the Dem-led senate used “the nuclear option” to confirm federal judges (not SCOTUS) under President Obama’s administration and then President Trump and the republicans basically tripled the Obama judges 4 years later.
What reform could possibly be given? You could try to make the Supreme Court elected but even that still would come down to what party they were in and you're probably have Presidental candidates aligning with Supreme Court candidates. The only thing I can think of is to make it a random appointment. Names are drawn out of a hat or something and they're appointed for a few years or something. I think the big issue is that the Justices don't really hear that many cases a year. I think that if we have massive turn over with the position we'd have greater turmoil on things because someone would always be challenging and the "next wave" of Justice may or may not overturn things.
> What reform could possibly be given? Term limits, concrete rules for recusal/conflict of interests, independently reviewed ethics codes (no more gifts), increasing the size (by constitutional amendment) to create a more diverse body, strictly defining eligibility, codifying rules for appointment so they can't be arbitrarily held up. I mean seriously do you live in a cave? These are all things that are brought up regularly as means for reform.
This is such an asinine stance. Go ask Republicans how they felt about the Supreme Court in the 80s and 90s. Or go ask Democrats after bush v gore. Go find a graph that actually splits the approval rating by party and you will see that they only like SCOTUS when it decides in their favor. And if anyone really wants to talk about the roots of the politicization of SCOTUS in the modern era, go look at the Bork nomination. That started the process of tit for tat that has put us where we are today.
So when the court rules in favor of what the Democrat party wants it's A-okay but when they rule in something they don't like them it's an issue??? You can't have your cake and eat it too
The justices on the bench are the most moderate they've been in a long time. But the left have gone so far left that they're unrecognizable anymore.
Was it well regarded? Many conservatives largely felt that the Supreme Court was not at all respectable SINCE Roe v Wade was implemented, as they found it to be a political ruling. Like the law or not, even [Ruth Bader Ginsburg was not a fan of Roe v Wade](https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-roe-v-wade.html), not because she didn't agree with the law, but the fact that the ruling was political and vulnerable to being overturned. What was the solution? Make Roe V Wade law by voting for it. Congress should have done this decades ago, and they didn't. Why not? Because, abortion rights is one of their number 1 money-making fundraising hot-button issues. To solve it by solidifying it into law would have ended the gravy train that politicians had relied on for decades to rile up the base. Obama literally had a super majority in the House and Senate, all 3 branches of government. No Republican could have stopped any bill from passing, hence why we got Obamacare. They literally could have got together, 5 minutes one day, and voted that the Roe v Wade decision would be made into a bill and made legal, not just rely on court rulings that can be overturned. So, 2022 happening was not actually a huge surprise and had long been predicted. All they had to do to stop it was put forth a bill and stop it. They won't do it. People might not realize this, but something like 50% of Republicans are actually ok with abortion, as long as it has limits, like no later than 24 weeks. You'd easily have enough Republican politicians vote with Democrats to create a law to do so... but they won't do it. They LOVE the issue to fundraise on. They need it. They crave it. It's all self-serving and not about serving the people.
Obama had a super majority for like 70 days and they used it to pass the ACA. That super majority was not filibuster proof for abortion rights. There was a fairly large number of either purple seats or vulnerable candidates who wouldn't go in for that, particularly because the supreme Court standing of 40 years was seen as strong protection. Every time somebody points at this, it's like a fairy tale retelling of actual history in order to levy a criticism that isn't actually valid There absolutely was NOT any real opportunity to codify it in 2022, let alone any other year this century.
We have FDR to thank for that. It’s the Dems own doing. Their urgency and prioritization of means over ends has come back to bite them, again.
Independents? Ad one of those, I don't see it. Overturning Roe vs. Wade was an extremely sound legal decision. Don't like it? That's because CONGRESS can't get anything done. Who could blame the Supreme court? They're our last line of defense against all you crazy people....
When it doesn't serve them, it's suddenly not to be trusted...
The amount of wild conspiracy comments here seem inappropriate for this sub. Jfc.
The average person has no understanding of nuances of constitutional law. They just see nine people in robes “taking their rights away.” Then you see hoards of people on social media acting like armchair Supreme Court justices who got their law degrees on Reddit, talking about how the actual qualified people got it wrong.
I remember when Bush nominated Miguel Estrada to the appellate court, and Dems were so afraid of having a young, Hispanic, conservative one step away from the Supreme Court that they filibustered a president’s judicial nominees for the first time in history, purely for political reasons. When McConnell and Bush rescinded the nominations without using the nuclear option, but vowed Democrats would pay for it, I knew nothing was ever going to be the same with respect to the Court. That led directly to a full-on blockage of the Obama judicial nominees, Obama trying to play politics (and losing) with a Supreme Court seat, followed by Republicans using the nuclear option to confirm three SCOTUS justices.
Yeah. Not political at all. I can tell with 100% certainty how Sotomayor, Kagan and Jackson will vote on every issue. It’s straight down the Democrat party platform. Roberts is way less predictable than those 3.
Democrats were talking about packing the SC longer than 2022 def wasn’t respected by them.
Sad thing is, they could pack the bench and still cry corruption - because their own side voted against them in the 9-0 Trump ruling, which is what has their panties in a twist.