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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 6:02 pm 
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cutuphalfdead wrote:
What a douche.
His douchiest action was being the lackey that fired the special prosecutor that was uncovering Nixon's crimes when the two guys in front of him refused to do it, and they resigned. That act shouldn't be forgotten in all this Bork talk.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 6:05 pm 
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Green Habit wrote:
cutuphalfdead wrote:
What a douche.
His douchiest action was being the lackey that fired the special prosecutor that was uncovering Nixon's crimes when the two guys in front of him refused to do it, and they resigned. That act shouldn't be forgotten in all this Bork talk.

Good riddance to bad rubbish.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 9:00 pm 
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mray10 wrote:
stip wrote:
Green Habit wrote:
stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.



I was wondering if you think the opinions reflect the personal politics of the judge (it's motivated by their larger vision of justice, morality, role of the state in public life, etc), or whether they are actually reflecting a philosophy of constitutional interpretation and meaning that exists independently of those politics? Does the Constitution have substantive meaning that can be known and interpreted independently of the person doing the looking?


I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology. Your comment earlier had me wondering if you agree with that, which struck me as somewhat unusual for a self confessed SCOTUS junkie


Is it really?

Article III pretty plainly indicates that the Supreme Court ought to be made up of more than just one judge, so whether that's 3 or 6 or 9 that's a tacit acknowledgement that there are issues that some people will see differently and we need a majority to settle the question.

Even the idea that there must be a court system to interpret the Constitution is an acknowledgement of that, or at least that sometimes various parts of the law may run up against each other.



To a point, sure. And I'm not saying it is unusual to disagree. The question I was getting at is whether or not you think the disagreements represent philosophic disagreements about the proper interpretation of some knowledge that has an independent, ontological existence (the LAW exists, and we just may do a better or worse job understanding what it says--just like the presence of religious diversity doesn't mean that God's word doesn't exist. We're just not reaching consensus as to what it means), or whether they simply reflect different ideological positions through which the law is a tool to advance or retard an agenda that exists independently of it.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Fri Dec 21, 2012 3:10 pm 
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stip wrote:
mray10 wrote:
stip wrote:
Green Habit wrote:
stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.



I was wondering if you think the opinions reflect the personal politics of the judge (it's motivated by their larger vision of justice, morality, role of the state in public life, etc), or whether they are actually reflecting a philosophy of constitutional interpretation and meaning that exists independently of those politics? Does the Constitution have substantive meaning that can be known and interpreted independently of the person doing the looking?


I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology. Your comment earlier had me wondering if you agree with that, which struck me as somewhat unusual for a self confessed SCOTUS junkie


Is it really?

Article III pretty plainly indicates that the Supreme Court ought to be made up of more than just one judge, so whether that's 3 or 6 or 9 that's a tacit acknowledgement that there are issues that some people will see differently and we need a majority to settle the question.

Even the idea that there must be a court system to interpret the Constitution is an acknowledgement of that, or at least that sometimes various parts of the law may run up against each other.



To a point, sure. And I'm not saying it is unusual to disagree. The question I was getting at is whether or not you think the disagreements represent philosophic disagreements about the proper interpretation of some knowledge that has an independent, ontological existence (the LAW exists, and we just may do a better or worse job understanding what it says--just like the presence of religious diversity doesn't mean that God's word doesn't exist. We're just not reaching consensus as to what it means), or whether they simply reflect different ideological positions through which the law is a tool to advance or retard an agenda that exists independently of it.


That's an interesting argument, but not one I'm sure I've ever heard before, save from the side of my family that really does tend to believe that Jesus handed down the laws of our country the same way Moses brought down the Ten Commandments.

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I mean, many people might subscribe to the idea that LAW exists, to the extent of basic things like do not commit murder or violence. Interstate commerce, though? I don't think there's a cosmic truth there that we're just grappling to understand. If there are people who do ... that's fascinating to me.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Fri Dec 21, 2012 4:23 pm 
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I don't know that people would necessarily use that sort of religious terminology to describe it, but I do think it's pretty fair to say that we tend to treat the Constitution and meta law as something that exists beyond politics and ideology. We have a veneration for the Constitution as something that binds the country together and acts as a source of wisdom that transcends politics. If the Constitution was just whatever these 9 non elected life appointed officials, confirmed at the end of a highly confrontational process that revolves almost exclusive around ideological commitments with no formal public involvement in the process beyond electing people who participate in this selection (and not voting them in specifically to do this) I think we'd just call the court tyrannical. We don't give unaccountable people the right to subvert the democratic process by declaring laws and acts of elected officials unconstitutional unless we think these people are defending deeper principles that exist independent of politics.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Wed Dec 26, 2012 4:41 pm 
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stip wrote:
I don't know that people would necessarily use that sort of religious terminology to describe it, but I do think it's pretty fair to say that we tend to treat the Constitution and meta law as something that exists beyond politics and ideology. We have a veneration for the Constitution as something that binds the country together and acts as a source of wisdom that transcends politics. If the Constitution was just whatever these 9 non elected life appointed officials, confirmed at the end of a highly confrontational process that revolves almost exclusive around ideological commitments with no formal public involvement in the process beyond electing people who participate in this selection (and not voting them in specifically to do this) I think we'd just call the court tyrannical. We don't give unaccountable people the right to subvert the democratic process by declaring laws and acts of elected officials unconstitutional unless we think these people are defending deeper principles that exist independent of politics.


This argument makes more sense in a world where most court decisions aren't 5-4.

I actually think its overstated how "political" (in terms of strict right/left) the court is. Despite popular (media?) opinion, even a lot of the 5-4 decisions fall along lines that aren't exactly political ... but are still eminently predictable by court watchers.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Wed Dec 26, 2012 6:47 pm 
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mray10 wrote:
stip wrote:
I don't know that people would necessarily use that sort of religious terminology to describe it, but I do think it's pretty fair to say that we tend to treat the Constitution and meta law as something that exists beyond politics and ideology. We have a veneration for the Constitution as something that binds the country together and acts as a source of wisdom that transcends politics. If the Constitution was just whatever these 9 non elected life appointed officials, confirmed at the end of a highly confrontational process that revolves almost exclusive around ideological commitments with no formal public involvement in the process beyond electing people who participate in this selection (and not voting them in specifically to do this) I think we'd just call the court tyrannical. We don't give unaccountable people the right to subvert the democratic process by declaring laws and acts of elected officials unconstitutional unless we think these people are defending deeper principles that exist independent of politics.
This argument makes more sense in a world where most court decisions aren't 5-4.

I actually think its overstated how "political" (in terms of strict right/left) the court is. Despite popular (media?) opinion, even a lot of the 5-4 decisions fall along lines that aren't exactly political ... but are still eminently predictable by court watchers.
There are usually more unanimous opinions than there are 5-4 decisions. It's just that the 5-4 ones tend to be ones that society as a whole is conflicted on.

Other than that, I largely agree with you, as I think I've laid out earlier in this thread.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 27, 2012 3:12 pm 
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Green Habit wrote:
mray10 wrote:
stip wrote:
I don't know that people would necessarily use that sort of religious terminology to describe it, but I do think it's pretty fair to say that we tend to treat the Constitution and meta law as something that exists beyond politics and ideology. We have a veneration for the Constitution as something that binds the country together and acts as a source of wisdom that transcends politics. If the Constitution was just whatever these 9 non elected life appointed officials, confirmed at the end of a highly confrontational process that revolves almost exclusive around ideological commitments with no formal public involvement in the process beyond electing people who participate in this selection (and not voting them in specifically to do this) I think we'd just call the court tyrannical. We don't give unaccountable people the right to subvert the democratic process by declaring laws and acts of elected officials unconstitutional unless we think these people are defending deeper principles that exist independent of politics.
This argument makes more sense in a world where most court decisions aren't 5-4.

I actually think its overstated how "political" (in terms of strict right/left) the court is. Despite popular (media?) opinion, even a lot of the 5-4 decisions fall along lines that aren't exactly political ... but are still eminently predictable by court watchers.
There are usually more unanimous opinions than there are 5-4 decisions. It's just that the 5-4 ones tend to be ones that society as a whole is conflicted on.

Other than that, I largely agree with you, as I think I've laid out earlier in this thread.


That's true, plus you have to factor in all of the cases that most judges agree aren't even worth giving cert to.


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