The country would be a better place if more people did.
Supreme court decisions are phenomenally well written. They usually begin with a clear, short, and accessible statement of the case and the relevant principle(s) before they summarize their decision. I find that they describe the issues surrounding the cases with great compassion for all the major arguments. And the dissents are usually equally informative.
Reading decisions has dramatically increased my appreciation of the nuance that goes into the decisions of the court and the operation of our country. Even for cases where I disagreed with the judgement with both before and after reading the decision, I gained a much greater perspective of alternative views. ... and a feeling that even when I strongly believe we're doing the wrong thing that we're trying so hard to do the right thing that eventually we'll get it right somehow.
For several years I read at least the beginning of every decision and dissent -- there aren't that many. I stopped only because I became crunched for time, and I'm thankful that your post reminded me of this gap from my life now that I have the time to pick up the practice again.
From googling, I'm guessing you're referring to the fact that Barrett's appointment was a week ahead of the presidential election and months ahead of the end of trump's presidency.
Federal appointments down to the last minute of a presidency are lawful, and somewhat late appointments happen frequently. I find the suggestion otherwise in this context particularly amusing, because the fantastic drama over some literally 11th hour appointments-- ones so late they were delivered after the end of the presidency-- is how the supreme court took the power to review laws for constitutionality in https://en.wikipedia.org/wiki/Marbury_v._Madison . Even lame-duck supreme court nominations used to be fairly common (even though supreme court nominations are not that common themselves) -- that they aren't common more recently is because an unplanned vacancy is far more rare.
It's true that Obama failed to make a nomination at the end of his term, but the view that he couldn't or that it would have been improper is just not factually supported by the law or the history of the country, including the history of supreme court nominations. Instead there is a clear political explanation: Given the composition of the senate and the weakness of an outgoing president, Obama would have only been able to get through a compromise nomination. There was high confidence that Hillary would win and that the dems would have greater senate influence, allowing a more politically extreme nominee if it was left to her term. This was a grave political error, one I suspect we'll be suffering from for years to come. (The fact that we had a number of unplanned vacancies of late are also political errors, at least to the extent that you consider the justices political actors.)
I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. The fact that some politicians and pundits can't restrain themselves doesn't excuse the rest of us.
> you reading some of these decisions [...] to treat any of these decision
It's a big step from some to any. No person or process is infallible.
> I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution.
A fine and honorable institution which has upheld slavery, segregation, imprisonment camps, and the list goes on. The SCOTUS is not above criticism, and change can only occur if we treat them for what they are, servants of the people.
You’ve got it backwards. States have a general “police power” and have the right to pass laws to regulate the public health unless it infringes on a federal constitutional right. In 50 years there has never been a “great legal argument” where the right to have medical providers perform abortion appears in the Constitution. You’re welcome to look in there yourself and report back.
How do you account for the fact that the Court has not revised Roe v Wade in the last 50 years if it all rests on a correct interpretation of the Constitution, which has obviously not changed?
The way time passes so long is that:
A) the court declines to hear cases over and over again unless it is forced to have “original jurisdiction” or decides not to decline to hear a case.
B) then when it decides to hear a case, we hope it rests on a solid constitutional ground because thats our only framework. there have only been a couple wild surprises from that court, and people amended the constitution in response just because the judges’ understanding was so wildly different than everyone’s, but the logic they pointed out was so clear that everyone agreed to overrule them by changing the constitution. Here, obviously people don't agree that much because, like you, they believe the means justify the end no matter how shaky the logic is. But for those willing to look, theyll see that court hadnt been doing its job as they didnt use the constitutional at all.
so its easy for us to see that the passage of time cannot be weighted as heavily as you are relying on. the marriage equality ones have very sound logic and have just as clear of a chronology as to why it wasnt ruled on before. your right in that it wasnt magic, but your wrong if you think it was ideological randomness.
Obergefell is a good contrast to Roe. Everyone acknowledges that the "rights" protected by the Constitution includes the rights inherited from the English tradition. (Liberals believe it encompasses an evolving set of rights based on changing moral standards, but they agree it includes at least those recognized in England in 1789.)
Marriage was one of those ancient rights. Even the Magna Carta includes rights relating to marriage. The question therefore wasn't whether there was a right to marriage, but whether same-sex relationships fell within the scope of the concept of "marriage."
On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.
If anything, "the science" has worked against Roe. The first real-time fetal ultrasound was conducted in 1971, just a couple of years before Roe was decided. Since then, ultrasounds have become routine, and 3D ultrasound technology allows us to see that a 15-week fetus isn't a "bundle of cells" but has a human face: https://youtu.be/sBmXNOG4s4A
> On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.
Homosexual "marriages" have existed since Antiquity. And marriages do not necessarily have to lead to children, otherwise old people would be restricted from marrying. I think it is obvious that this decision is a result of the fast change in the zeitgeist rather than a careful evaluation of evidence, no matter what the Justices or their clerks deemed fit to write in their decisions.
They didn't emerge just now, they were pointed out in scholarly discussions of the case immediately after it was handed down, and throughout the intervening 50 years. It was even criticized by pro-abortion people, they wanted something more soundly reasoned.
It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever?
And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.
Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us.
Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.
The Supreme Court and other appeals courts typically are purely technical, across all political leanings and makeups.
On this topic, the Supreme Court reverted to a purely technical view, auditing those two prior cases on their technical merits because they are outliers in being untechnical. They returned it to the states, not taking any extreme approach at all. The extreme options would be: invalidate all state laws that destroy fetuses, prohibit Congress from having any ability to review. Nope, nothing like that was done because overturning roe v wade was never as political as suggested with regard to a child bearer’s body, they simply returned it to the states, and there has always been an absence of a superseding law from Congress, which is Congress’ fault for never even trying
> "One of the most curious things about Roe," wrote liberal Harvard Law professor Laurence Tribe "is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
> Alan Dershowitz, another legendary liberal Harvard Law professor, called Roe "judicial activism" lacking "clear governing constitutional principles."
> There are plenty more like this. Pro-choice Yale and Harvard Law professor John Hart Ely wrote that Roe "is not constitutional law and gives almost no sense of an obligation to try to be."
> Why did they wait 50 years to correct this obvious outlier?
Because once a precedent has been set, the Supreme Court isn't obliged to revisit it, even if everyone comes to believe the decision is wrong. Whereas the merits of the original decision are quite technical, whether to overrule precedent or not is highly discretionary. It considers factors like whether the original decision failed to settle the underlying controversy, whether it creates a rule that is hard to apply in practice, etc. See: https://www.law.cornell.edu/wex/stare_decisis
It's this discretionary aspect that made Roe a sitting duck. Liberals obviously had no reason to overrule Roe even if they, like Justice Ginsburg, believed the decision was flawed. And for a long time, Republicans appointed social liberals to the Court who were happy to kick the can down the road because they were worried about the political ramifications.
Note that the politics doesn't matter for whether the decision is correct or not in the first place, but it's an entirely reasonable basis for deciding whether or not to go to the trouble of overruling an incorrect precedent.
> And why did several of the judges lie to Congress when they said they would not change Roe?
They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned.
You are right about this point, upon further reading I see that I based my question on social media bullshit that turned out to be biased. I agree with your distinction.
Regarding the rest, I think you still don't quite grasp my point. I understand there can be a technical way of looking at these decisions. I can also concede that Roe is particularly hated by most scholars. But if we both agree that politics is why these technical aspects were overlooked for 50 years, it seems absolutely pointless to discuss this issue from any other standpoint. Political interference is why this decision was made in the first place, because as another user stated, it fit into the more libertarian ideology of the Court at that time. And politics is why it's getting struck down, technical aspects notwithstanding. You can of course disagree, as I think you do, but from my perspective the political aspect is much more interesting and a more powerful predictor than anything else.
a reality not revisited until the 1950s, where the supreme court bought it back under the federal domain, overruling itself because “obviously this has 1st amendment protections” and creating the “free speech and expression” reality that seems profoundly American, but really hasnt been for long.
you can have an opinion, but you need to incorporate what the court actually says and their logic behind. Just because a ruling is convenient for you or your causes (multiple times) doesnt mean its on solid ground. on this specific topic, its important to repeat over and over again that the federal government and even its supreme court could have reached the same outcome of privileging the pregnant person’s choice, but yes, that outcome would need to be closer to a math proof if from that court factoring in very different variables.
I get that its comfortable (or at least familiar) to view that the means justify the ends, where any authority using any rationale can extend rights that you like. I get that its scary that rights are so flimsy and people dont trust their states and that they will be immediately denied services they expected to be available. None of that lets the incorrect authority do its job wrong.
The reasoning didnt emerge just now, people just didnt want to talk about anything more nuanced than being “pro-life” or “prochoice” and “dont say the a-word”.
If you read the case you’ll realize “hold up, what? I’ve been emotionally led my whole life based on this steamy pile of shaky logic?”
You’ll realize that the same outcome could have been created with more durable consensus. Durable meaning acceptable, less divisive, not based on time.
But now, a major roadblock to evaluating things this way has crumbled.
The primary issues are:
- How the multiple unrelated case(s) got to the Supreme Court and were consolidated for Roe v Wade
- How the Supreme Court acted as a super legislature creating frameworks and edicts (it does this sometimes but they are guidelines, prongs for likelihood of compliance. In this case they were completely uncircumventable rights and restrictions, the area of Congress), instead of finding a part of the constitution to support it. Its out of character and relies on the difficulty of overruling the Supreme Court.
- How Congress has had 50 years or more to do or even just try anything on this topic, but didnt. (Risky for politicians doesnt mean the court can do their job)
- The next time the topic was revisited in Casey, the court was relying on the concept of Roe being precedent while then altering that precedent for a modified framework anyway. (The new draft uses that logic to dismantle Casey before dismantling Roe. And it doesnt take an opposite extreme view, it just gets the federal government out of it and returns it to state regulation. If Congress had opined at all, ever, it would have just returned it to Congress’ national laws, but since it never has then there is nothing to supersede state regulation.)
You might also be surprised at how, compared to the code analogy, informal and even non-legalistic many opinions are. There's a lot of opinions that read largely like well-informed Internet comments for long stretches until legal citations come back in.
> Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely.
> Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000. “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Roe is the Lochner of liberal jurisprudence. (https://en.wikipedia.org/wiki/Lochner_v._New_York). It makes sense only under an extrapolation of the broadly libertarian small-government sentiment behind the Constitution that the left doesn’t believe in. (It was penned by a Nixon appointee, and was reaffirmed in Casey by five Republican appointees.)