Agreed. Elsewhere in this thread someone pointed out that some recent justices may have been... less than truthful... in answers to the Senate during their nomination hearings, at least giving the impression that they'd continue to support Roe.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
>Selection bias kind of leads to an assumption that those who work for the court support the neutrality and processes of the court
That may be true, but a key issue with this reasoning is that there has been an increasing opinion that the move to overturn Roe v Wade is an explicitly partisan affair precipitated by bad-faith manipulations of recent SC appointments from the conservative side.
you: “we don't vote for Supreme Court justices… There's no…electoral…pressure on a justice[‘s] motivations…”
zzleeper: “Are you naive…? Republicans have lists of candidates for justices…they have deemed…anti roe-vs-wade”
you: “If I'm naive, please explain”
This is where you lost the point, and where I explained your naïveté, an explanation you ignored in your response to me.
Your last two paragraphs consist of speculative ad hominem (judging by your profile, we have similar life circumstances, and I have many conservatives in my “bubble” ie family members) followed by a hypocritical self defense. We don’t know anything about each other outside of what we’ve said here. I’m simply calling it like I see it:
you: “Why [wouldn’t Thomas change his mind once he is appointed], if he's now free to act as he pleases?…what's to stop him doing as he thinks is right…?”
The obvious answer is that he was appointed precisely because it was expected he would act the way he has, because what he believes is right is fully aligned with who appointed him, as are the three most recent appointees. You want to point out exceptions like Roberts, but those merely prove the rule from my original explanation.
My feelings may be a bit ideal, though again, reading decisions makes it apparent both how intelligent these people are and how their “wrong” decisions are still very well-justified. However, I think yours are perhaps too cynical.
For example, David Souter was appointed by Bush Sr and ended up being one of the most liberal justices on the court. Harold Blackmun, author of the majority decision in Roe v Wade, was appointed by Nixon. Ford appointed John Paul Stevens. Breyer and Ruth Bader Ginsburg, on the other hand, were both appointed by Clinton.
So the political leanings are not as clear-cut as you make them out to be. And there is significantly reduced pressure to toe any sort of party line after you are named to the court—that's precisely why the appointments are for life. Moreover, in order to get confirmed, it's tough for a justice to simply toe the party line. Confirmation is a 2/3 deal in the Senate, and it's extremely rare for one wing or the other to have 2/3 of the seats there. No one takes Supreme Court appointments lightly.
Even so, I think I've tempered for idealism. Idealism would say they'd come up with a perfect, fair decision, every time. I'm just saying they're not oblivious. They may have a different interpretation, they may not have a complete technical understanding, but these are not people who are oblivious. They're smart, they know how law works, and this is ultimately a debate about law, as it should be in a court. Yes, there is room for interpretation, but these are not fools, and I feel like the characterization of the Supreme Court as “oblivious” is a bit excessive in that sense.
Are you naive or what? Republicans have lists of candidates for justices that they have deemed so anti roe-vs-wade that they deemed safe to propose for justices. Someone like Thomas is not going to change his mind once he is appointed...
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.
> A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
> “We talked about whether he considered Roe to be settled law,” Collins told reporters. “He said that he agreed with what [Chief] Justice [John] Roberts said at his nomination hearing in which he said that it was settled law.”
If the Supremes overturn Roe vs Wade they will lose all of the legitimacy they’ve spent the last 70 years building.
At that point the Court itself is fubar. It probably already is fubar since Trump anyway. Clarence Thomas and his wife’s Jan 6th involvement is just the cherry on top of a shit show.
In the end they are falliable humans like the rest of us so perhaps we hold too high an opinion.
> To be fair, you can do this with judges on both sides of the partisan divide.
At the supreme court level? Yes, because it takes 4 votes to chose which case gets cert and we have 6 activist justices that want to completely rewrite jurisprudence for political gain. How are the liberal justices supposed to vote when the questions often being asked are now "Hey, should we overrule this long standing precedent for political motivations?"
However, standard jurisprudence isn't nearly this bad in the federal court level. The outcomes there can be far more difficult to predict based on who appointed them.
> It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
While I don't disagree, unfortunately the constitution was setup with the notion that the SC would be above political divide (hence, being unelected and having lifetime appointments.)
I certainly wouldn't mind some sort of constitutional amendment trying to address that. Though, I just don't see it as likely.
Because they are the base that the republican party answers to. They are the Supreme Court justices who are members of the Federalist Society who have been playing the long game to overturn Roe and other decisions. I'm portraying those who have actually been doing the mechanisms of overturning Roe. This isn't some hypothetical debate, these are organized groups mobilizing to enact change.
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.
No one actually cares what any of those organizations say. Literally no one, not republican or democrat, could care any less what they say unless they happen to align with their political ideology.
Second, the notion of "republican candidates" or "republican justices" (Stevens was not a conservative, or right leaning, he simply happened to be appointed by a republican president) as justices on the supreme court shows an absolute misunderstanding of the purpose of the institution.
There is a fundamental misunderstanding of the purpose of the court betrayed by this comment. The court is supposed to be non-partisan and not beholden to politicians. The left has cranked up the smear machine in response to every Constitutionalist judge nominated to the court since (and including) Clarence Thomas -- it only appears "republican" or "democrat" because republican presidents appoint judges more often who respect the Constitution as it was written and democrat presidents appoint judges more often who believe the Constitution should be rewritten through the misuse of the judiciary.
Kavanaugh will be a party line vote, and a lot of it will be reaction to the left wing of the senate's behavior in the judiciary committee. note that the right does not, in general, do this -- Kagen, Sotomayor, and Ginsburg were all significant majority votes in spite of their political ideology differences.
Elections have consequences (that's a quote from President Obama), and Constitutionalist judges are being nominated. The smear machinery is going to be brought against any Constitutionalist judge, no matter who it is, because of the political controversy over Roe v. Wade, which is in reality what this entire confirmation circus at this point is about.
At this point the US Senate has in essence abdicated its role in advice and consent to the President and turned confirmations into a political farce -- that's not how it's supposed to be, no matter what political ideology one may hold.
It's difficult to separate out whether their abstract Constitutional ideology exists prior to their political leanings, or vice versa, because the two are so closely correlated. There are no "originalist" left-wing justices, and it's impossible to tell whether one becomes an originalist because the same thinking also causes them to have right-wing views, or vice versa, or if there is some other underlying cause.
It is clear that they are chosen for their positions based on the expected outcomes. Regardless of what's going on behind the closed doors, the outcomes seem entirely pre-determined based on the political affiliation of the President who nominated them and the Senate who confirmed them.
I personally don't think that the legal reasoning is as consistent as you believe it is, but I think that's a matter of opinion. I also don't think it matters, since the outcomes are the only thing that matters and are so highly correlated with partisanship -- as they were designed to be. The effect on the individual is the same.
Presumably we'll find out in this instance. The OP was claiming that the Court would certainly vote not to uphold a state law from their political allies. I've explained why I disagree. Next June we'll find out.
I'm making the opposite point: That there is a genuine and intellectual argument for originalism. But it has nothing to do with the Supreme Court's current decision making process which is "Do we have 5 suitably Conservative Supreme Court Justices? Yes or No?". Which is why in the Dobbs decision Thomas rightly points out that the next thing to do is revisit Contraceptives, Same sex marriage, and Gay sex. And why Roberts makes another concurrence literally saying he also wants to ban abortion, but just doesn't see the need to overturn Roe to do that.
The problem is that the arguments they make support their position, but they don't support their own arguments when it doesn't result in supporting their position.
You're correct - I am directly negatively affected by Supreme Court nominations that favour the removal of Roe v Wade, legal same-sex marriage, and the Affordable Care act. I will not be laid back.
I wonder if the Justices themselves have accepted that they hold a de-facto partisan position and should act as such. I mean, the system clearly was not designed like it was one.
I don't see a lot of Republicans annoyed by anything the Supreme Court is doing - every decision they've made since repealing Roe seems to favor the right and undermine the left. Trump's list for Supreme Court appointees was written by the Federalist society, which is politically biased in favor of Republicans, libertarians and Christian conservatives.
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
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.
There is a long history and philosophy around the proper roles and relationships of a legislature and court such as SCOTUS. The current Court could claim to make decisions upon a strict originalist philosophy of jurisprudence. Maybe they think they do, and maybe they really do. But...
Take an open-eyed look at history. Look at the process by which the justices are selected. This shows a different ultimate motivator: conservatives have been working for decades to pick justices whose claimed philosophies align with the conservative agenda.
My response to that seems not to have been popular. It's the job of the Senate to help vet the nominees based on their abilities as judges. I don't think the senators should be making these decisions based on the nominee's adherence to a particular ideology. And to the extent that the senators are deciding based on this, it's those very senators that are making the Court political - don't blame the justices.
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