Hacker News Reader

Comment by spupe | Hacker News Reader

I also find the American Supreme Court decisions to be surprisingly accessible, while in my and other countries there is a lot of obfuscation. That said, I'm not sure I have the same feeling as you reading some of these decisions. Law and its interpretation is obviously a political matter and always will be. For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions, which happens to coincide with the recent introduction of three more conservative judges (one of them illegitimately). It's just futile, in my view, to treat any of these decisions as if the people involved were trying really hard to achieve objective truth, rather than impress their prejudices in the most articulate way.

View on HN

> For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions

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.

Many things don't appear in the Constitution. I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality. What happened there, and is happening with abortions, is that different ideological groups control the nomination to the Court and enshrine their ideology in law by proxy.

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?

(different person)

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.

> I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality.

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

The problem with this approach is that it is very malleable. Technology also changed immensely from when the Founders mentioned "arms", but I would think Conservatives would have a hard time accepting this particular "evolution". The examples you mention are also cherry-picked. We already knew fetuses had heartbeats and human faces many decades before ultrasounds existed. And a vast majority of scientists would agree that abortion is valid within some restrictions, so I don't believe that ascribing this change to the evolution of science does you any favors.

> 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.

> one of them illegitimately

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.

Yes, I was referring to how the nomination was stolen from Obama. The nominee they had in mind was in fact moderate, and in the past Congress had never wielded its power to block a nomination because it was done in the last year of a presidency. The fact that the Republicans pushed their own nomination at the last minute was just adding insult to injury. I think we have to be clear about what is legal and what is legitimate here. It is legal for the Democrats to pack the Court, and there is even precedent for that. They also have congressional majorities that in theory allow for that. However, it would be illegitimate to do so.

> 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.

Reply on news.ycombinator.com