Comment by jfengel | Hacker News Reader

Comment by jfengel | Hacker News Reader

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You're correct: justices' opinions do not swing in they wind. They are cemented at the moment they were nominated, and remain the same for decades.

I don't believe Thomas was bought by bribery. I don't think any reasonable observer does. Rather, I think that he was friends with a very wealthy person, who appreciates that Thomas is ideologically inclined to give him what he wants.

Nor is that illegal. The illegal part is failing to disclose it. Nobody can say why he failed to disclose it. He has no reason to be embarrassed by it. It's widely interpreted as contempt for the law -- an uncomfortable thing to believe about the highest court in the land.

I know that a lot of lawyers (of all ideologies) have a lot of respect for the work of the Supreme Court. As a non-lawyer, my lack of respect should mean less than theirs. But when a decision comes down to ideology, they can be relied on to vote with their decades-old beliefs, and the entire charade of presenting a case seems unnecessary. The decision could have been written without pretending that they were actually deciding anything.

As you day, democracy is about losing gracefully. But as of now, I'm practically guaranteed to lose for the rest of my life any time it comes down to an ideological issue. That's not corruption; it's the fact that there are at least five justices who I don't believe will even consider it. The fact that one of them doesn't consider a law relevant is an indicator that something is badly aligned, upsetting the balance under which I'm expected to be a good loser.

But I think there is a saving grace to your thinking that justices' views were cemented at birth/confirmation.

One of the respect-worthy things about Scalia (even Thomas) is that they believe(d) that what the Constitution says, should be followed. One of their fundamental differences with, say, the more liberal justices, is that you should not read new/updated rights into a document that says what it says. If on the other hand you say that justices should adapt to what the current interpretation of a document implies, then maybe it goes your way, but someone interpreting modern values differently might equally conflict with what you want.

In that sense their position is clear and stable. They don't agree that the rights you're claiming are found in the Constitution.

How then, do you change that or turn it to your advantage? You make laws and amend the Constitution to change the ground rules of society over time. And justices that take the above approach will, if they are reputable, continue to follow their adherence to what the Constitution (updated) says.

Now, as I said above, our system seems to be quite dysfunctional right now in that a lot of issues cannot be decided by society given our political reality right now. But having a court decide an issue when 50% of people disagree will not gain it any credibility, or resolve it for society.

> One of the respect-worthy things about Scalia (even Thomas) is that they believe(d) that what the Constitution says, should be followed.

As a mode of rationalization of why the Constitution should be read in a way which supports their ideologically preferences, yes. As anything more deeply meaningful than that; some evidence in Scalia’s case, less in Thomas’s.

> One of their fundamental differences with, say, the more liberal justices, is that you should not read new/updated rights into a document that says what it says.

That’s not actually a difference between them and most of the more liberal justices; they actually legitimately disagree on original intent.

> If on the other hand you say that justices should adapt to what the current interpretation of a document implies, then maybe it goes your way, but someone interpreting modern values differently might equally conflict with what you want.

Believe it or not, its just as easy for people trying to interpret “what did the document mean in the eyes of the original writers” or “what would this text be seen as meaning in the original context it was written” (originalism/textualism) to come to differing conclusions than each other. The idea that either originalism or textualism produces stability is…well, I mean, its inconsistent with the decisions the Supreme Court has rendered with originalist or textualist rationales.

They don't agree that the rights you're claiming are found in the Constitution.

The Ninth Amendment makes it extremely clear that the list is not exhaustive. There is no originalist or textualist reading that can make "these are the only rights you have" valid.

I think part of that is reasonable. Certainly the original writers envisioned changes to the future and how would the Constitution adapt?

But whether the SCOTUS judges should write wholesale changes to the scope of the Constitution or rights that drift away from the original intent? That certainly is a matter for debate and thinking about implications.

There is a mechanism for changing the Constitution, amendments. Why should certain topics, if they rise to the level of "should have been an amendment passed by the people", be imposed by the justices?

What if the Constitution envisions that judges should interpret ambiguities at the margin, and not create whole new rights that drift from the fundamental codebase, if you will?

And then on top of that, if some new right involves significant social questions and implications, why should 9 justices (legal professionals) be the ones to say what the answer is?

As you said, these are open for adjustment. But whether the rights you seek should be created by justices versus the democratic process I think I differ with. Or at least, I see the logic of the more conservative approach to.

Recognizing new rights shouldn't require a Constitutional amendment. It is possible under law, which has a vastly lower bar. If we can't pass it by law, we surely can't surpass the even higher bar Constitutional amendment.

The law is already a high bar. The process is designed to favor inaction. A dedicated minority can prevent law from passage -- and can do so solely for political reasons, regardless of their personal feelings or those of their constituents. To pass a law requires control of the House and the Senate (by a filibuster-proof margin) and the Presidency, at the same time. And an amendment is even higher than that.

The Supreme Court should be able to shortcut that by recognizing that the 9th Amendment explicitly forbids a reading of "you don't have this right if James Madison didn't give it to you". When they make that claim, the entire process is cast in doubt.

I would vastly rather see the Congress pass these rights. But when the Congress has cemented a Supreme Court dedicated to ensuring that you gain no rights, and is further willing to use any minority advantage to guarantee that it can't be done by law, then the Constitution really is a suicide pact.

What are 'new' rights? They're not technological.

The Constitution draws its concept of rights from philosophy surrounding natural rights. If you're not using the word in that context you're talking about something else.

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