Precedent is tricky. Democrats removing the filibuster for judges came back to haunt them.
There was a recent (last few weeks) SCOTUS decision that came out with numerous opinions by different coalitions. You could tell that they were all maneuvering around this idea of precedent.
Liberal justices who ended up on either side (majority or minority) were couching their votes as upholding a prior precedent, even when they definitely weren't.
Conservative justices ended up on either side of the case while subtly arguing that overturning precedent, or at least modifying it, was okay and normal.
Both are presumed to be setting up for the next challenge to Roe vs. Wade.
EDIT: mistakenly put that the democrats removed filibuster for SCOTUS judges, that was for other nominations
I'm on the more liberal side of the spectrum, yet it's unfair to say that _this_ SCOTUS has been legislating from the bench. The prior Democratic balance of SCOTUS did exactly the same and stretched very widely the definition of things to fit modern progressive ideals. In my opinion, politicians should have made Roe v. Wade into law instead of relying on SCOTUS to legis-interpret in their favor indefinitely.
I don't like many recent rulings from SCOTUS, but intellectual honesty forces me to admit that when the pendulum was on the other side, the same thing happened with different allegiances.
Two years ago, I would not have made that argument, as SCOTUS actually practiced their stated policy of stare decisis — The doctrine or principle that precedent should determine legal decision making in a case involving similar facts — SCOTUS overturning it's own decisions was a rare event.
However, in the last two years, the court has repeatedly overturned, either explicitly or by the shadow docket, many large precedents set by the same court.
The impetus from the court politically skewed by senate leadership (note Merrick Garland, Amy Cohen Barrett), and the nature of the cases taken by the court and these reversals is obviously political.
This opens up as fair game all prior SCOTUS decisions, as they are obviously not settled law, but open to change on a whim. The SCOTUS has degraded its status from a determiner of settled law to a set of umpires for the current inning.
So, yes, it is entirely reasonable to question prior SCOTUS decisions, especially now.
SCOTUS has frequently made decisions that overturned a conservative prescedent in favor of a liberal one. Many 'landmark' SCOTUS cases are exactly this.
Long term, I wonder if this destroys the Supreme Court. I see no reason why a future liberal majority would feel bound by any conservative precedent in the future. Replace respect for precedent with whatever position wins a majority and the incentive to pack the court seems irresistible.
There was hasn't been a "prior Democratic balance of SCOTUS" the SCOTUS has been firmly conservative since Rehnquist (1986) and probably before that. What is notable about this Robert's Court, is that they have overturned rulings affirmed by other conservative courts and even their own recent rulings!
Almost as if the Robert's court concluded there is no point in being powerful if you can't rule, even though ruling is beyond the scope of all courts.
As for Roe V. Wade being codified, this was a moot point at the time because you had a Constitutional right to an abortion -- your right to an abortion was codified in the Constitution, a law would have been redundant.
The difference that the justices they put on the bench are pretty extreme. Witness the reversal of several important decisions, like Roe vs Wade, something the court has historically been loathed to do. Or the gutting of the Voting Rights Act, usurping the intentions of Congress. They're systematically rewriting the law because they know they have a durable majority and that Congress and voters have no recourse.
Did you look at the table linked by OP? What you're describing is definitely the meme that's been going around, but how much of the sense that this court is more activist than the last few is just the amplification of social media? OP's table pretty clearly shows that overturning well-established precedent is just what the Supreme Court does.
Looking at the rulings in that table, the main difference that I see between this court and previous courts is that this is the first time that a conservative court has thrown caution to the wind and started overturning what they see as bad precedent. Typically conservative justices have held themselves to a standard that liberal justices did not, and the Trump era definitely ushered in a set of judges that were done with that double standard.
I'm willing to have a conversation about the merits of the individual rulings (there are some I disagree with!), but that's a separate question from whether this court is doing something that hasn't already been the norm for a century or longer.
The legitimacy of the court is long-gone--its nothing more than a political body. Don't like the precedent? Just overrule it and claim it was 'poorly argued'.
Especially funny, considering that Ginsburg was perhaps the most likely to vote based on how she thought the country should operate, and not on stare decisis or leaving issue to congress.
All of the Justices appointed by Trump - which pushed the majority towards the conservative - were selected from a list created by the Federalist Society[0] specifically for their conservative ideology, which by definition includes opposition to Roe v. Wade.
Given how strongly conservatives hold to the belief that the US has been corrupted by federalism, secularism and progressivism, it isn't at all surprising that justices would lie during confirmation, since they believe they're serving a higher cause. In fact, Democrats are accusing them of doing exactly that[0] by claiming "settled precedent" for Roe V. Wade, which they later overturned. Of course, it's not difficult to find arguments to the contrary, the polarized optics of American politics being what it is. I'm sure Team Red has a list of examples of nominees by the Democrats who they claim did the same thing, but that doesn't disprove the thesis.
You realize that the liberal justices concurred because of the threat of cracked southern/midwestern other states removing presidents besides trump from the ballot if this precedent were established, right? If the liberals had been on the winning side the opinion would have read vastly differently than it did.
The thing is that the current makeup of the court has been engineered for decades. It was a project that took so long because the exact right conditions needed to be in place: namely the death of a liberal justice while Republicans controlled the Senate and Presidency. In some ways the current court is a bit of a perfect storm.
And what have they been saying they would do for the past 20 years? Get rid of Roe vs. Wade. And what happens as soon as they get control of the court? As fast as they humanly could they tested Roe in front of their new court, and now they've overturned the entire decision in the most brazen way possible.
That was item 1 on their list. In the intervening 20 years there have been other items added to the list as reasons for wanting control of the Supreme Court. Gay marriage has been absolutely listed as a top target since 2015.
Given how they've stated they want to overturn Roe and they followed through, why do you consider the idea that they will go after gay marriage a slippery slope? They've told us they want to do it. Why are we not to take them at their word at this point?
Disappointed by the outcome, but not surprised. IMO SCOTUS is no longer trustworthy when it comes to impartiality. Polarization has infected every branch of government including SCOTUS. This judgement simply falls along US political party lines. Perhaps, it has never been the case. However, I think we have seen an increase of conservative policy and interpretations of law become the standard due to a Republican super majority.
With the recent decision, we can see where it goes back to e.g. the creation of the Federalist Society in 1982, how nearly every conservative Supreme Court nominee since Scalia has been a member (Roberts is disputed but the other 5 current justices are, as were Scalia and Bork), and how some very clever and/or very dirty procedural maneuvering resulted in the conservative majority on the Supreme Court today.
Did that happen with the Burger court that decided Roe? A quick check suggests that of the 9 justices on the Burger court, 4 were nominated by Nixon, 2 by Eisenhower, and 1 each by FDR, JFK, and LBJ. I really have no idea, I'm sure there were plenty of politics involved with all of those as well but I tend to think justices of this era were nominated more on merit than ideology.
Genuine question for anyone following Supreme Court decisions since the inclusion of Gorsuch and Kavanaugh. How have either of those two nominations contributed to decisions in a way that undes RBG's life work? If they haven't, on what basis are you coming to the conclusion that the third nominee to SCOTUS would somehow be radically different than the first two?
I personally haven't read an opinion from either that most democrats would be disappointed with. Most people actually don't follow what the supreme court does and the extent of the attention they pay is just making sure that the president they support gets to pick SCOTUS justices.
Okay, and can you name any decision by SCOTUS that was decided egregiously incorrectly in favor of liberal/progressives? And any decision by conservative SCOTUS that was decided correctly, to a detriment of liberal/progressive cause?
My point is that if your arguments and positions about matters or law always just so happen to align along partisan lines, why should anyone even pay any attention to the arguments long comments you write, when the conclusion is preordained anyway? Why should anyone even bother to answer to the Gish gallop of wrongheaded arguments, if no arguments would ever get to change your position?
Of course, you can prove me wrong, by pointing to any opinion of Court, written by Justice Scalia, that you think is correct, but most Democrat voters would prefer to have been decided differently. Can you?
That's literally not what the word precedent means. We're not talking about historical counterfactuals, we're talking about the specific defenses and reasoning that's given for a specific decision. When the Supreme Court makes a decision on the basis of precedent, they're saying that the way a previous case was decided should dictate how this case is decided. Likewise, McConnell's claimed "reasoning" in 2016 was that a supposedly controversial president should not be able to elect a new Supreme Court justice in an election year. If that precedent stands, Trump should not be able to in 2020.
Precedent is tricky. Democrats removing the filibuster for judges came back to haunt them.
There was a recent (last few weeks) SCOTUS decision that came out with numerous opinions by different coalitions. You could tell that they were all maneuvering around this idea of precedent.
Liberal justices who ended up on either side (majority or minority) were couching their votes as upholding a prior precedent, even when they definitely weren't.
Conservative justices ended up on either side of the case while subtly arguing that overturning precedent, or at least modifying it, was okay and normal.
Both are presumed to be setting up for the next challenge to Roe vs. Wade.
EDIT: mistakenly put that the democrats removed filibuster for SCOTUS judges, that was for other nominations
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