Reply
 
Thread Tools Display Modes
  #1  
Old 04-29-2019, 02:24 AM
Velocity is offline
Guest
 
Join Date: Jun 2014
Posts: 14,039

How seriously do justices like Ginsburg and Thomas consider "the opposing side's" arguments?


I realize this is impossible to answer since it requires mind-reading, but on an obviously partisan issue - say, whether Roe v. Wade should be overturned or not - does an obviously liberal justice such as Ginsburg ever give any moment of consideration of voting for the conservative outcome, or is it just a matter of her mentally humming and trying not to appear bored and waiting several weeks for vote time to cast her vote to uphold Roe?


(Ditto for a conservative like Thomas on any SCOTUS case with an obviously-conservative outcome to vote for - does he ever for one moment consider voting liberal?)
  #2  
Old 04-29-2019, 05:35 AM
Spoons is offline
Charter Member
 
Join Date: Sep 2000
Location: Lethbridge, Alberta
Posts: 16,525
The SCOTUS is an appellate court. As such, it requires written submissions from both sides, oral arguments from both sides, and it may also read briefs and hear argument from various amici curiae. It also reserves the right to question everybody with standing during oral argument.

Then, it retires, and publishes a written decision later. That decision must be based on sound legal principles, and lead to a logical legal conclusion. Justices can dissent from the majority decision, but again, they must give reasons in writing, and based upon sound legal principles. In short, the answer to your question is, "Yes, they must pay attention and consider both sides."

Note that "sound legal principles" does not include "The current President appointed me, so I'll vote whatever way he wants me to, regardless of the arguments presented." Neither does it include, "I hate the current President, so I will vote against what he wants." It is true that partisans can skew the SCOTUS, but not by much, and they must give legally-sound and logical reasons. (Which will be pored over by us legal scholars, who will expose any cracks or holes.) They cannot just make decisions up in order to make the President happy; neither can they shoot down what the President wants, "just because." They must publish sound arguments that lead to a logical, legal conclusion.
  #3  
Old 04-29-2019, 06:20 AM
adaher is offline
Guest
 
Join Date: May 2003
Location: Florida
Posts: 28,871
Exactly, and that's why I don't worry about SCOTUS the way some people do when voting. If the court was 9-0 liberal or 9-0 conservative justices, it would be different, but there's only so much they can do. Justices care about the reputation of the court, and that means not issuing dumbass rulings with obviously tortured reasoning.
  #4  
Old 04-29-2019, 07:20 AM
Acsenray is offline
Charter Member
 
Join Date: Apr 2002
Location: U.S.A.
Posts: 35,323
I would say that most appellate judges don’t think of themselves as voting for a “side.” They don’t consider at all which answer is the liberal answer. To the extent that cumulatively a judge’s tend toward liberalism or conservatism is a result of the natural consequences of that judge’s legal philosophies.
__________________
*I'm experimenting with ē, ēm, and ēs as pronouns that do not indicate any specific gender nor exclude any specific gender. (I am also contemplating the spellings ë/ëm/ës, é/ém/és, e/em/es, Ē/Ēm/Ēs, Ë/Ëm/Ës, É/Ém/És, E/Em/Es.)
  #5  
Old 04-29-2019, 07:42 AM
Dinsdale is offline
Guest
 
Join Date: May 2000
Posts: 18,051
Never argued before the Supremes, but spent plenty of time before the Circuit courts, and am currently an administrative law judge myself.

You've got to recognize that a matter being litigated has several aspects:
What does the applicable law expressly state?
What is your philosophy for how that law is to be interpreted?
Do you apply that philosophy consistently to all laws/disputes in all subjects?
Is an individual judge capable of evolving during their tenure on the bench?
What are the judge's own experiences and personal philosophy?
How rigorous/consistent is the particular judge's approach?
Can the judge be swayed by emotions/special factors?

That's just off the top of my head. Judges are people. While most TRY to leave their personal biases behind, not all are equally successful. And the same way some folk are the best and worst in ANY profession - the same applies to judges as well.

Many laypeople are not truly aware of the legalities of certain causes before the court. The court as a whole an decide whether to define a specific cause extremely narrowly - addressing only the law and/or fact situation at issue. Or, they can take a far more expansive approach.

The Supremes are a pretty small bunch. In one respect, each judge has to think each of his/her colleagues pretty impressive, because they got there the same way. And - whatever we might think - they DO all have pretty high credentials. For Ginsburg to think Thomas an idiot, or the system that nominated and affirmed him corrupt, she would have to acknowledge the possibility that other capable persons might think the same about HER.... (In my experience, most decision-makers aren't exactly lacking in the area of self-confidence either.)

Realize that there are infinite ways for a justice to express their views. A justice can write a concurring/dissenting opinion based on a narrow definition of the legal issue at stake, while going on to express their philosophical predisposition. Dicta can be quite influential.

So, in short, I would imagine there are some areas/issues in which Ginsburg might give serious consideration to Thomas's views, and in others, she might dismiss them pretty readily if they disagree with an outcome she feels very strongly about.
__________________
I used to be disgusted.
Now I try to be amused.
  #6  
Old 04-29-2019, 07:57 AM
AK84 is offline
Guest
 
Join Date: Apr 2008
Posts: 16,045
Roe v Wade is a curious example. Ginsberg herself has been ambivalent about the case and had critiqued it in the past.
  #7  
Old 04-29-2019, 08:32 AM
Dinsdale is offline
Guest
 
Join Date: May 2000
Posts: 18,051
Yeah, RvW is a weird case.

I don't know G's and T's complete approach, but let's say G believes there IS a constitutionally protected right to privacy, and T believes there is not. I highly doubt either would expect to be convinced by the other. Think of this in terms of your approach to religion. Whether you believe or not, do you really think someone is going to convince you otherwise? After you've reached a certain age and have done a certain amount of research and introspection, are there really any new arguments?

But, within such broad, general belief/philosophical positions, there are countless secondary and procedural issues. For example, G might be open to persuasion as to WHO can affect WHAT ASPECTS of the right to privacy, in WHAT MANNER and TO WHAT EXTENT.

Further, a decision-maker's decision likely considers, not only the plain language of a particular law and the impact on the specific named parties, but also the intent of the lawmakers, and the broader, longterm consequential effect on others.
__________________
I used to be disgusted.
Now I try to be amused.
  #8  
Old 04-29-2019, 09:20 AM
Little Nemo is online now
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 80,427
I think even ideological justices carefully consider opposing arguments. They're aware those arguments exist and will be made by their ideological opposites on the bench. So they want to raise the arguments themselves in order to refute them.
  #9  
Old 04-29-2019, 11:00 AM
Chronos's Avatar
Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 82,727
Also remember that the Supreme Court has a habit of issuing narrow rulings: Finding that the specific argument raised by one side doesn't have merit because of reasons X, Y, and Z, but without saying anything about whether that argument might have merit under other circumstances, or whether a different argument that leads to the same conclusion might be valid.

They don't always do this, of course. Sometimes the Court issues broad rulings with far-reaching implications, and those make it into the history books. But those are only a small fraction of the cases they deal with, and are so memorable in part because of their rarity.
  #10  
Old 04-29-2019, 11:32 AM
Try2B Comprehensive's Avatar
Try2B Comprehensive is offline
Guest
 
Join Date: Apr 2009
Posts: 6,388
While Roe may be a strange case, it is further complicated by the opponents of it tending to be motivated by fundamentalist Bible-beaterism. The 1st Amendment won't allow the conservative dream of imposing religion on the country through the courts and cops, at least ideally, before even parsing the details of talking snakes, faith healing, people floating into the air and so on. So what looks like "not listening" is actually recognition of both the 1st and things every qualified judge should recognize, like the appeal to authority nature of Bible arguments, however disguised. I think "liberal" judges listen to and dismiss such arguments.

I say this as someone personally opposed to abortion and who has followed up on that position by leading an abortion-free life. I also don't think it should be outlawed, for the reasons outlined above. Criticism welcome.
  #11  
Old 04-29-2019, 01:27 PM
Snowboarder Bo's Avatar
Snowboarder Bo is online now
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 25,295
Quote:
Originally Posted by Spoons View Post
The SCOTUS is an appellate court. As such, it requires written submissions from both sides, oral arguments from both sides, and it may also read briefs and hear argument from various amici curiae. It also reserves the right to question everybody with standing during oral argument.

Then, it retires, and publishes a written decision later. That decision must be based on sound legal principles, and lead to a logical legal conclusion. Justices can dissent from the majority decision, but again, they must give reasons in writing, and based upon sound legal principles. In short, the answer to your question is, "Yes, they must pay attention and consider both sides."

Note that "sound legal principles" does not include "The current President appointed me, so I'll vote whatever way he wants me to, regardless of the arguments presented." Neither does it include, "I hate the current President, so I will vote against what he wants." It is true that partisans can skew the SCOTUS, but not by much, and they must give legally-sound and logical reasons. (Which will be pored over by us legal scholars, who will expose any cracks or holes.) They cannot just make decisions up in order to make the President happy; neither can they shoot down what the President wants, "just because." They must publish sound arguments that lead to a logical, legal conclusion.
Bolding mine.

Or what? What are the consequences and what is the enforcement mechanism/procedure? Who gets to review the SCOTUS decisions to ensure that all decisions are “sound arguments that lead to a logical, legal conclusion”?
  #12  
Old 04-29-2019, 01:47 PM
Little Nemo is online now
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 80,427
Quote:
Originally Posted by Snowboarder Bo View Post
Or what? What are the consequences and what is the enforcement mechanism/procedure? Who gets to review the SCOTUS decisions to ensure that all decisions are “sound arguments that lead to a logical, legal conclusion”?
The only legal way to overrule a Supreme Court decision is to amend the Constitution.
  #13  
Old 04-29-2019, 02:04 PM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 49,282
You can also pack the Court with appointees who dislike the decision, and will accept cases and make rulings upon them to undermine or even overturn the decision.
  #14  
Old 04-29-2019, 02:42 PM
Velocity is offline
Guest
 
Join Date: Jun 2014
Posts: 14,039
Quote:
Originally Posted by Snowboarder Bo View Post
Bolding mine.

Or what? What are the consequences and what is the enforcement mechanism/procedure? Who gets to review the SCOTUS decisions to ensure that all decisions are “sound arguments that lead to a logical, legal conclusion”?
Technically, no one - the Supreme Court by definition is Supreme. But a justice can be impeached (although unlikely.)
  #15  
Old 04-29-2019, 02:44 PM
Snowboarder Bo's Avatar
Snowboarder Bo is online now
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 25,295
Exactly. So do we all agree that the stuff I bolded is just bullshit? That it’s the ideal but that there’s no “must” at play in reality?
  #16  
Old 04-29-2019, 06:53 PM
Arcite is offline
Guest
 
Join Date: May 2002
Location: Earth
Posts: 1,055
Quote:
Originally Posted by Snowboarder Bo View Post
Exactly. So do we all agree that the stuff I bolded is just bullshit? That it’s the ideal but that there’s no “must” at play in reality?
Yes. Anytime someone says that so-and-so "must" do such-and-such, it's legitimate to ask "and what if they don't?"
  #17  
Old 04-29-2019, 07:15 PM
aceplace57 is offline
Guest
 
Join Date: Oct 2009
Location: CentralArkansas
Posts: 25,460
Clarence Thomas recently asked his first question from the bench in 10 years.

That sounds like a person that has already made up his mind. It's hard for me to imagine being that disengaged from the proceedings he's required to attend. It's only natural for questions to form in the Judges minds as the lawyers present their cases. That's not the case with Judge Thomas.

https://www.npr.org/sections/thetwo-...ch-in-10-years

Last edited by aceplace57; 04-29-2019 at 07:20 PM.
  #18  
Old 04-29-2019, 07:23 PM
The Other Waldo Pepper is online now
Guest
 
Join Date: Apr 2009
Posts: 16,356
Quote:
Originally Posted by aceplace57 View Post
Clarence Thomas recently asked his first question from the bench in 10 years.

That sounds like a person that has already made up his mind. It's hard for me to imagine being that disengaged from the proceedings he's required to attend. It's only natural for questions to form in the Judges minds as the lawyers present their cases. That's not the case with Judge Thomas.

https://www.npr.org/sections/thetwo-...ch-in-10-years
That cite is from 3+ years ago.
  #19  
Old 04-29-2019, 07:26 PM
aceplace57 is offline
Guest
 
Join Date: Oct 2009
Location: CentralArkansas
Posts: 25,460
So maybe he's asked one more question?



It boggles the mind that a SCOTUS judge went ten years on the bench without asking a question.

Last edited by aceplace57; 04-29-2019 at 07:27 PM.
  #20  
Old 04-29-2019, 08:18 PM
D'Anconia is online now
Guest
 
Join Date: Oct 2014
Posts: 4,353
Justice Thomas has access to all of the lower courts proceedings, the briefs that are filed, including amicus briefs, multiple law clerks, the discussions with the other Justices both before cert is granted, and before a ruling is issued.

His not asking a question at oral argument is not indicative of anything.
  #21  
Old 04-29-2019, 08:22 PM
Dinsdale is offline
Guest
 
Join Date: May 2000
Posts: 18,051
Quote:
Originally Posted by aceplace57 View Post
Clarence Thomas recently asked his first question from the bench in 10 years.

That sounds like a person that has already made up his mind. It's hard for me to imagine being that disengaged from the proceedings he's required to attend. It's only natural for questions to form in the Judges minds as the lawyers present their cases. That's not the case with Judge Thomas.
...
Yeah, his stretch of silence is extreme, but surely you can imagine a case in which the facts and law are sufficiently set out in the pleadings, that you have no unanswered questions at oral argument.

I wouldn't hazard a guess at percentages, but I'd imagine there are a great many instances (a majority?) in which justices' minds are pretty well made up before oral arg, and oral arg does nothing to change them. In fact, I'd go so far as to suggest that in only a small minority of cases does oral argument significantly change a justice's position.
__________________
I used to be disgusted.
Now I try to be amused.
  #22  
Old 04-29-2019, 09:55 PM
SmartAlecCat is online now
Guest
 
Join Date: Apr 2009
Posts: 1,145
Quote:
Originally Posted by D'Anconia View Post
Justice Thomas has access to all of the lower courts proceedings, the briefs that are filed, including amicus briefs, multiple law clerks, the discussions with the other Justices both before cert is granted, and before a ruling is issued.

His not asking a question at oral argument is not indicative of anything.
Agreed. I'm much more concerned that his wife is an activist and sometime lobbyist that headed a firm which boasted on its website about using her "connections" to help clients with "governmental affairs efforts."

I'm sure it is totally coincidental that he always happens to agree with the legal positions his wife advocates and sometimes lobbys on behalf of.
  #23  
Old 04-29-2019, 10:31 PM
Chronos's Avatar
Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 82,727
One expects that any case that makes it to the Supreme Court is going to find itself with really good lawyers on both sides, and one also expects that really good lawyers will be ones who anticipate questions and include the answers without needing to be asked.
  #24  
Old 04-29-2019, 10:41 PM
Miller's Avatar
Miller is offline
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 43,808
Quote:
Originally Posted by Dinsdale View Post
I don't know G's and T's complete approach...
Is anyone else thirsty?
  #25  
Old 04-30-2019, 04:09 AM
adaher is offline
Guest
 
Join Date: May 2003
Location: Florida
Posts: 28,871
Quote:
Originally Posted by AK84 View Post
Roe v Wade is a curious example. Ginsberg herself has been ambivalent about the case and had critiqued it in the past.
I would actually argue that judges were more activist in the SCOTUS of the 60s and 70s. I think liberal judges were more unapologetically willing to overturn precedent. Reagan's election and appointments of actual conservative justices might have tempered the ardour of the judicial left for activism, given the dangers of an activist conservative court on the level of what went on in the heydey of liberal judicial activism. It's actually politically good strategy for liberal justices to be strictly legal now and to sometimes even decry activism.
  #26  
Old 04-30-2019, 04:38 AM
Spoons is offline
Charter Member
 
Join Date: Sep 2000
Location: Lethbridge, Alberta
Posts: 16,525
Quote:
Originally Posted by Snowboarder Bo View Post
Exactly. So do we all agree that the stuff I bolded is just bullshit? That it’s the ideal but that there’s no “must” at play in reality?
No, there is a "must." And that "must" is thousands of legal scholars, like myself, who can look at a case and say, "yeah, okay, I can see that," or "how the hell did they arrive at a bullshit conclusion like that?" And since most of us legal researchers are fully-licensed lawyers, we can call "bullshit," and keep the SCOTUS in check.
  #27  
Old 04-30-2019, 09:52 AM
Snowboarder Bo's Avatar
Snowboarder Bo is online now
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 25,295
Quote:
Originally Posted by Spoons View Post
No, there is a "must." And that "must" is thousands of legal scholars, like myself, who can look at a case and say, "yeah, okay, I can see that," or "how the hell did they arrive at a bullshit conclusion like that?" And since most of us legal researchers are fully-licensed lawyers, we can call "bullshit," and keep the SCOTUS in check.
How will y’all “keep the SCOTUS in check? By thinking really mean things? A sternly-worded missive that can be ignored? Not vote for them next election?

  #28  
Old 04-30-2019, 10:19 AM
Little Nemo is online now
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 80,427
Quote:
Originally Posted by adaher View Post
I would actually argue that judges were more activist in the SCOTUS of the 60s and 70s. I think liberal judges were more unapologetically willing to overturn precedent. Reagan's election and appointments of actual conservative justices might have tempered the ardour of the judicial left for activism, given the dangers of an activist conservative court on the level of what went on in the heydey of liberal judicial activism. It's actually politically good strategy for liberal justices to be strictly legal now and to sometimes even decry activism.
Nonsense. Conservative justices have shown they can be every bit as activist as liberal justices.
  #29  
Old 04-30-2019, 10:33 AM
Acsenray is offline
Charter Member
 
Join Date: Apr 2002
Location: U.S.A.
Posts: 35,323
Quote:
Originally Posted by adaher View Post
I would actually argue that judges were more activist in the SCOTUS of the 60s and 70s. I think liberal judges were more unapologetically willing to overturn precedent. Reagan's election and appointments of actual conservative justices might have tempered the ardour of the judicial left for activism, given the dangers of an activist conservative court on the level of what went on in the heydey of liberal judicial activism. It's actually politically good strategy for liberal justices to be strictly legal now and to sometimes even decry activism.
This is right wing pettifoggery and gaslighting. There is no difference in terms of “judicial activism” (which is a fictional notion in the first place). Decisions that the right dislikes are labeled “activist” and that’s all there is to it.

Same goes for “originalism.” There’s no principled distinction between left and right jurists in this respect. It’s just another fictional and malleable value that gets plastered on things conservatives like.
__________________
*I'm experimenting with ē, ēm, and ēs as pronouns that do not indicate any specific gender nor exclude any specific gender. (I am also contemplating the spellings ë/ëm/ës, é/ém/és, e/em/es, Ē/Ēm/Ēs, Ë/Ëm/Ës, É/Ém/És, E/Em/Es.)

Last edited by Acsenray; 04-30-2019 at 10:35 AM.
  #30  
Old 04-30-2019, 10:48 AM
KarlGauss's Avatar
KarlGauss is offline
Member
 
Join Date: Mar 2000
Location: Between pole and tropic
Posts: 7,993
Quote:
Originally Posted by Acsenray View Post
. . .There is no difference in terms of “judicial activism” . . . Decisions that the right dislikes are labeled “activist” and that’s all there is to it.
Indeed. If part of 'judicial activism' involves repudiating and/or overturning precedent, Citizens United is an exemplar.
  #31  
Old 04-30-2019, 11:41 AM
adaher is offline
Guest
 
Join Date: May 2003
Location: Florida
Posts: 28,871
Quote:
Originally Posted by Little Nemo View Post
Nonsense. Conservative justices have shown they can be every bit as activist as liberal justices.
All of the activist conservative decisions have relied on a concrete part of the Constitution to justify them, whereas liberal activst judges have relied on much more vague ideas derived from other constitutional rights but applying only to the cases they want them to apply to.
  #32  
Old 04-30-2019, 11:51 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 60,478
Quote:
Originally Posted by adaher View Post
All of the activist conservative decisions have relied on a concrete part of the Constitution to justify them, whereas liberal activst judges have relied on much more vague ideas derived from other constitutional rights but applying only to the cases they want them to apply to.
Because you say so.
  #33  
Old 04-30-2019, 01:16 PM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 49,282
Kinda curious about your favorite few examples, adaher. Along with a discussion about the importance of ruling in the spirit of the Constitution and justice rather than finding clever ways around it when it's inconvenient, if you please.
  #34  
Old 04-30-2019, 05:42 PM
Chronos's Avatar
Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 82,727
Which, given that the Constitution explicitly forbids strict constructionism, makes the conservative decisions more "activist".
  #35  
Old 04-30-2019, 07:27 PM
D'Anconia is online now
Guest
 
Join Date: Oct 2014
Posts: 4,353
Quote:
Originally Posted by Chronos View Post
Which, given that the Constitution explicitly forbids strict constructionism, makes the conservative decisions more "activist".
How does the Constitution "explicitly forbid strict constructionism"?

If it's explicit, you'll have a cite, of course.

Last edited by D'Anconia; 04-30-2019 at 07:28 PM. Reason: sp
  #36  
Old 04-30-2019, 10:51 PM
Chronos's Avatar
Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 82,727
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
  #37  
Old 05-01-2019, 10:13 PM
Flyer is offline
Guest
 
Join Date: Feb 2012
Location: Colorado
Posts: 3,256
Quote:
Originally Posted by adaher View Post
Exactly, and that's why I don't worry about SCOTUS the way some people do when voting. If the court was 9-0 liberal or 9-0 conservative justices, it would be different, but there's only so much they can do. Justices care about the reputation of the court, and that means not issuing dumbass rulings with obviously tortured reasoning.
Justice Taney might disagree with you.


Quote:
Originally Posted by Little Nemo View Post
The only legal way to overrule a Supreme Court decision is to amend the Constitution.
Under certain circumstances, it's possible for Congress to overturn a ruling by passing a law that addresses SCOTUS' concerns.


Quote:
Originally Posted by SmartAlecCat View Post
Agreed. I'm much more concerned that his wife is an activist and sometime lobbyist that headed a firm which boasted on its website about using her "connections" to help clients with "governmental affairs efforts."

I'm sure it is totally coincidental that he always happens to agree with the legal positions his wife advocates and sometimes lobbys on behalf of.
Why are you concerned about that? Not every power couple can be James Carville and Mary Matalin.
  #38  
Old 05-02-2019, 06:04 AM
WillFarnaby's Avatar
WillFarnaby is offline
Guest
 
Join Date: Oct 2011
Location: Baltimore
Posts: 4,825
Quote:
Originally Posted by Spoons View Post

Then, it retires, and publishes a written decision later. That decision must be based on sound legal principles,and lead to a logical legal conclusion.
Must or else?

Quote:
Justices can dissent from the majority decision, but again, they must give reasons in writing, and based upon sound legal principles.
Why must they?

Quote:
In short, the answer to your question is, "Yes, they must pay attention and consider both sides."
A lot of “musts” with no mechanism for enforcement sounds like faith to me.


Quote:
Note that "sound legal principles" does not include "The current President appointed me, so I'll vote whatever way he wants me to, regardless of the arguments presented." Neither does it include, "I hate the current President, so I will vote against what he wants." It is true that partisans can skew the SCOTUS, but not by much, and they must give legally-sound and logical reasons. (Which will be pored over by us legal scholars, who will expose any cracks or holes.) They cannot just make decisions up in order to make the President happy; neither can they shoot down what the President wants, "just because." They must publish sound arguments that lead to a logical, legal conclusion.
Again with the “must”s.

Roberts said he considers public opinion in his decisions. Are the president and other party members not the public?
  #39  
Old 05-02-2019, 06:10 AM
WillFarnaby's Avatar
WillFarnaby is offline
Guest
 
Join Date: Oct 2011
Location: Baltimore
Posts: 4,825
Quote:
Originally Posted by Chronos View Post
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That is rather the opposite of explicit.

It is impossible for the Constitution to explicitly forbid strict constructionism. If it did so, the explicit forbiddance would be strictly constructed, no? IOW you are relying on strict constructionism to deny strict constructionism.
  #40  
Old 05-02-2019, 08:10 PM
Chronos's Avatar
Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 82,727
Which is perfectly valid. Strict constructionism contains a paradox, but other interpretations do not. Therefore, do not use strict constructionism.
  #41  
Old 05-02-2019, 08:38 PM
eschereal's Avatar
eschereal is offline
Guest
 
Join Date: Aug 2012
Location: Frogstar World B
Posts: 16,107
Quote:
Originally Posted by Velocity View Post
I realize this is impossible to answer since it requires mind-reading, but on an obviously partisan issue - say, whether Roe v. Wade should be overturned or not - does an obviously liberal justice such as Ginsburg ever give any moment of consideration of voting for the conservative outcome, or is it just a matter of her mentally humming and trying not to appear bored and waiting several weeks for vote time to cast her vote to uphold Roe?


(Ditto for a conservative like Thomas on any SCOTUS case with an obviously-conservative outcome to vote for - does he ever for one moment consider voting liberal?)
AAUI, it does not quite work like that. The justices sit around a table together and discuss the points of a given case. They do not “cast a ballot” in the sense we are familiar with. They reach a majority decision, kind of similar to how a jury works. Then one or more justices write a majority decision that explains their reasoning, while there is often/usually a dissenting opinion written as well.
  #42  
Old 05-02-2019, 11:08 PM
D'Anconia is online now
Guest
 
Join Date: Oct 2014
Posts: 4,353
Quote:
Originally Posted by Chronos View Post
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That's really quite a stretch, then, to say that strict constructionism is "explicitly prohibited."
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:24 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2018 STM Reader, LLC.

 
Copyright © 2017