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Comment by alsaaro | Hacker News Reader

Judicial review has upheld the constitutionality of affirmative action policies for 40+ years, what changed is the composition of the Supreme Court and its related willingness to legislate from the bench -- abandoning stare decisis and judicial restraint.

We saw this with Roe last year.

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Some of the original Supreme Court cases upholding these policies went so far as to say that in the future, these exact things should be revisited because they were trying to bandage over decades of institutional racism.

https://gspp.berkeley.edu/research-and-impact/publications/w...

> In her opinion in Grutter v. Bollinger, Justice Sandra Day O’Connor concluded that affirmative action in college admissions is justifiable, but not in perpetuity: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”

There are lots of criticisms of the SC, but I don't see why everything they rule should be absolute ground truth forever. They can (and do) revisit cases for good reason.

I think it's mostly about the current MAGA heavy SCOTUS though that got there mostly by duplicity and hamstringing Senate procedures and pure luck. The judges weren't selected for talent, they were selected for an agenda.

>I think it's mostly about the current MAGA heavy SCOTUS

That's modern liberal opinion news talking. It's about law. AA is a direct contradiction to the 14th amendment and it dilutes it. I'm sure just about everyone, including previously and currently oppressed minorities would prefer the protections of 14th amendment over the protections of AA.

No, not true at all and I don't agree. Otherwise no government program could take race into consideration, but they do. Are you saying any kind of programs that are "race based" should now be null and void? Because you can't nit pick situations given your logic. Also downvotes don't hurt me and I don't care, I will continue to speak my peace.

>Otherwise no government program could take race into consideration

Can you give an example of a government program that takes race into consideration other than Affirmative Action programs?

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.

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.

No it wasn’t. You had a constitutional right to privacy, not to abortion. It was obviously tenuous reasoning at the time, and its shaky footing hasn’t exactly been a secret ever since. Roe should have been codified into law if we really wanted to keep it around long term.

Alright, prior SCOTUS had a more democratic balance, and at a minimum ruled more often than now in fairly tenuous ways in favor of progressive ideals. The end result was stuff I liked more than what they rule today, but them having voted in my camp doesn't mean I believe it was the right thing.

I think when the status quo requires on someone's stretched interpretation of a series of things, and this status quo is very important to people, it's on lawmakers to make the rules unambiguous.

As far as I can tell, the last time the supreme court of the united states had a majority of members appointed by a democratic president was in 1969.

This is misleading because Republicans appointed several liberal justices like Warren or Souter. How many conservative justices did Democrats appoint?

Striking down Roa v Wade was an example of undoing such “legislating from the branch.” The original Roe v Wade created in effect a new federal law, and last year’s decision struck that down.

Well, in both cases, the decisions at the time implied that they were temporary.

A lot of the logic of Roe v Wade was based on viability outside of a womb based on medical science of the time.

Right in the decision of affirmative action there is admission that it will need to be revisited.

Roe v Wade's trimester system, like virtually all abortion cutoffs, was essentially arbitrary. Calibrated to fit what their gut felt was right. For evidence of this, look at the abortion cutoffs in Europe, nearly every European country has a different cutoff from the others. In Germany it's 12 weeks and in the UK it's 24. It's all over the place. If these cutoffs were based on science there shouldn't be this much spread.

> look at the abortion cutoffs in Europe, nearly every European country has a different cutoff from the others.

Not really, 12 weeks are pretty common, and most european countries fit in 10-14 weeks, with just few exceptions like UK and Netherlands.

Regardless of whatever the political currents are, it's sensible policy to strike down every pseudo law that doesn't have legislative backing of some kind.

If they only selectively struck them down in favor of one group or another, then that would be a different matter.

The greater corpus of American law is based on case law, meaning it is based on court decisions. It is a common law system.

This is in juxtaposition to civil law systems that are based on codified legislation, for example in France or Germany.

Most case law is based on some kind of legislative output directly or indirectly via other case law. That's well known.

Yes I agree with you and in the context of this discussion it's unknown the parent's understanding of law and pseudo-law and I apologize if I came across the wrong way as a poser

Agree except for the "willingness to legislate" changing.

That's been in place for a LONG time, it dates all the way back to the separation of church and state decision being based on a letter Thomas Jefferson wrote.

Hell Roe v. Wade itself is an example.

What also changed was the timing of the decision, see O'Connor's "25 years" comment

Remember the Supreme Court upheld the legality of affirmative action in 2016 in Fisher v. UT-Austin, and two lower courts upheld the legality of affirmative action in this particular decision.

What changed is the make-up of the court; otherwise, apparently affirmative action's unconstitutionality was just realized like a revelation from God and every previous court (federal and Supreme) was wrong.

Racial rancor, and racism in general -- anti black racism in particular -- has probably increased since 2003; at least in the public sphere - hopefully this ruling is not a part of that milieu.

there are way more things in the world that have changed besides what justices make up the supreme court

these policies of racial discrimination aren't helping anyone. they don't help the people who didn't deserve the spots in the first place, and they don't help the people that are being robbed of the spots they deserve.

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