The term is stare decisis. Normally I wouldn’t bother to be the pedant who’d point out a simple mistake of that sort, but since you intend to explain a term of art, and then proceed to use it wrongly several more times, I think this deserves to be put right.
As to the substance, the problem with stare decisis is that it’s one of those principles that people uphold as long as they suit them. If there’s a precedent people like, they will emphasise the importance of sticking to it for the purposes of predictability and consistency; as soon as they find a precedent they don’t like, people are more than happy to jettison it.
Unfortunately, Appeal to consequences - Wikipedia is technically a logical fallacy. And for that matter, where is the tsunami of abortion bans that pro-choice advocates screamed were going to turn us into the Republic of Gilead?
You seem to be splitting hairs over my calling them “pro-life judges” and them having “judicial philosophies known to be ‘Roe was bad law’.” I don’t know what value you gain by that. They are judges with the known position they wanted to reverse Roe, and they were nominated by Trump because of that. If that’s not enough to prove intent to you, I wonder what would.
I disagree. The Constitution grants the President the power to nominate SC Justices. It doesn’t say “unless it’s an election year,” nor “unless the House is controlled by the opposite party.” That is clearly in opposition to the intent of the framers, and against the policy of reason and neutral processes you champion. It’s breaking the rules when there are no referees and no one to enforce them.
And gradually instituting fascism would start gradually, wouldn’t it?
You seem to have misunderstood me.
My statement was supposed to be
“The only way we get that back is to take it back collectively as a nation,”
I’m not advocating we replace moderates. I’m saying that they currently don’t have enough sway, largely because one side doesn’t want moderates at all, and thinks that normal conservatives are too moderate.
I’m not advocating a war of extremes. I’m advocating trying to beat the extremists politically until they see Americans don’t want that. But it’s hard to do so when Americans do want that.
Also back to the point of Justice integrity, to me there are 3 completely unqualified justices, 2 of which were appointed by Trump. The other happens to have been an SCJ for a lot longer, but never should have passed Senate review.
And you grant professionalism to Thomas, who has taken lots of bribes gifts from rich lobbyists with cases pending judicial review. You grant professionalism to Thomas even though his wife wrote texts to the White House advocating Trump defy the election results and Thomas refused to recuse himself from any related cases.
You grant professionalism to Alito who flew flags supporting the January 6 insurrection over multiple homes. Oh, I’m sorry, that was his wife. I’m sure he didn’t know and doesn’t share her views.
That is a very strange idea of professionalism.
Oh yes, I agree. I said there was potentially room for a good faith interpretation counter to Roe. But that would require good faith, which these Justices didn’t have. They just wanted to overturn Roe, so took the opportunity regardless of the impacts it would have on the Justice system and the lives of Americans, especially women.
Okay, I had not been aware of “trigger laws” that indeed were immediately invoked in thirteen states after Dobbs. If not a tsunami then definitely a storm surge.
-seem to me to be in contradiction. If the Senate can refuse to confirm a nomination, then the President doesn’t have an absolute authority to have his choice put on the bench.
But it wasn’t “the Senate.” It was one man, Mitch McConnell, who refused to bring the nomination to the floor for an up or down vote. He did this against the norms of more than two centuries.
Yeah, so the SC knew it was, in effect, enacting laws.
My point, however, was that the fallacy you cited applies to logic: whether something is true or false does not depend upon the consequences of it being true or false.
That reasoning, however, does not apply to the law: we enact laws precisely because we want certain consequences to follow.
Perhaps your reasoning, which I shouldn’t have to fill in for you, is that whether the constitution provides for a right to an abortion does not depend on the consequences of recognizing or denying such a right. And I would say that, in the case of Dobbs, it does depend on the consequences. IANAL, but I would think that one major point of the principle of stare decisis is to establish a legal framework that can be depended on by the country and to avoid the chaos that may ensue through suddenly overturning precedent. Well, they did, and we now have chaos.
Your point about Gilead was obtuse. First, great harm has already been done to women through the decision, which is Gilead enough for my tastes. But Gilead, like Rome, isn’t built in a day. But Dobbs certainly looks like an excellent foundation for it.
I don’t agree. The Senate confirmation process is supposed to protect us from political extremes in appointments and provide the American people oversight of the Executive Branch via their elected representatives. It kept out Robert Bork.
Unfortunately, the system is cracked because
The American system is hugely flawed by the de facto necessity of the 2 party system. [I started an essay on this, but it doesn’t belong here. ]
The American people have been radicalized by tailored news sources that over analyze everything to death. What makes that bad is the opinionated nature of the analyses, driven by agendas and twisted to sell the politics, not clarify the information.
With this comes the narrowing of information sources. Because the news is so laden with framing and expression of opinions, it drives people to avoid news sources they don’t like and stick with ones that agree with them. This makes misinformation much easier to sell. Alternative facts abound.
With the people being radicalized, they seek out representatives that agree with their warped perspective, who promise to satisfy their version of how to fix what’s wrong. The “no negotiation” party gains power at the expense of the rational middle ground.
This is how the Senate is broken. It should have prevented Thomas, but on the heels of rejecting Bork there was pressure to confirm, even in the face of Anita Hill’s accusations. Frankly, she was mistreated by a Senate already burned out on confrontation and wanting to confirm to the then norm that appointments are approved baring extreme problems. The confirm if their qualified nevermind if you disagree with their politics, as long as they are ethical. Oops.
The decades since then have only fractured the population more.
The Senate during Trump was dysfunctional largely because of who had the majority. Those elected Senators were gung ho party first. They were unwilling to scrutinize by qualifications or by likely political bent. They made no nods to objectivity.
But do you think we want to just hand over the reins to the House alone? Is that gerrymandered situation and state power structure really an improvement? Currently the Senate is the same house while the House is chaos of the MAGA.
The solution lies somewhere in transforming the American culture again to drive sanity, restraint, and cooperation. Because without that, e won’t get ejected officials that value those traits.
Btw, I don’t know if presidential nomination is the best process for choosing SC judges (or federal judges in general) in the first place.
Parliamentary system have their own issues, however. Ultimately, I don’t know which is better.
I more or less agree with your points on the rise of echo chambers in US political life, but I think radicalization has mostly occurred on the right. Yes, we on the left do have our echo chambers, but we are normal (with a normal level of flaws, etc.), whereas the right has gone nuts with MAGA.
I had never thought about it in this way, but I think you make a good point.
I think the US government should be completely overhauled at this point. For example, with respect to gerrymandering, I don’t think we should have states as we do now. There should be some local government, but, for example, we don’t need local real estate law, or state-based diver licenses, etc. Federalize that shit.
So if we didn’t have states as we do now, then we wouldn’t have a senate with two senators per state. Etc. etc. Would a unicameral legislature be better? It hasn’t hurt Nebraska, it would seem. Or maybe we could have an upper house with proportional representation. There are a zillion things to consider.
I think we’ve seen the same lack of sanity around the world, as with Brexit, far-right parties in Europe, etc. So it’s not just a local infection, and I think we should ask ourselves why.
Btw, Slate had an article that describes how Canada has legislative override of judicial decisions, and it seems to work pretty well:
Hmm. I’m gonna have to think about this one. Maybe say the dissent has to have at least two concurring Justices? That way a rogue demagogue doesn’t get to constantly upset the apple cart.
And make the vote iterative. If a GOP Congress votes A, then doesn’t mean a future Dem Congress can’t say B.
That would create whiplash with the citizenry, you say? Isn’t that what currently occurs with our esteemed Justices? At least then you could vote the scoundrels out.
There is a Republican advantage in the House. This comes from
Rural states and how reps are distributed. States get a minimum number of reps, but that does not set the population for per rep nationally. More populous states have a lower per capita representation. Ergo, rural population has more representation that urban. Because rural areas skew right while urban areas skew left, this gives disproportionate representation to rural Republicans. This is also the root of disparity with the Electoral College.
Gerrymandering has skewed states out of alignment to their population. Protections against gerrymandering have been cut by Trump admin and the courts. My Congressional District deliberately splits the city and county I live in because we are a liberal college town, gaining on Austin for influence. So half of Denton is included with 9 other counties stretching up to Amarillo. The other half is tied IIRC to the other side of north Texas stretching to Oklahoma and toward Arkansas. This dilutes the liberal vote with more rural areas of Texas.
This means the House is not fairly distributed by voter desires.
The reason our current system doesn’t work would batter any other proposed system - voter extremism. Fix that, and the bulk of problems with our system go away or become manageable.
I didn’t say he does. But the Congress refusing to even take up the nomination for evaluation is not in the Constitution, and is antithetical to the reason and neutral processes you advocate.
I agree. I was probably a little too even handed. Some of that was in the wall of text I deleted.
Fair to consider. Our current government is a much a result of the history that got us here as it is reasonable organization.
I just don’t see how we redo the whole shebang without a brand new Constitution, nor how to get there from here.
Right. If were to have a unicameral legislature, we would need to do away with gerrymandering and have a fairer system overall.
It’s hard to say exactly what is at fault, the system itself or the voters, and the opposite (voter apathy) can be bad as well. I first went to Japan in 1992 and lived there a total of eight years. My career has been based on knowing Japanese and working with Japanese people. Now I never really took an interest in Japanese politics, and one of the main reasons for that is that Japanese people don’t either. Nothing in Japan ever changes, and they are unable to fix any of their problems, despite the fact that they have some big advantages over the US (100% literacy, the lowest crime rates in the world or close to it, and extremely high social cohesion). Sometimes I wonder whether, if Japan can’t fix its shit, any country can.
Also, on the topic of courts, I interpreted for a Japanese judge visiting the US (for my part, the federal courthouse in Indianapolis) to study the jury system. This was maybe 2013 or so. They were looking at introducing jury trials there. Not sure if they ever did that. (I just googled, and it’s still hard to tell exactly what changed when. Oh well.)
People have an emotional attachment to a whole bunch of shit we need to change, which means that it is unlikely to change anytime soon. E.g., “Wyoming” is just a rectangle drawn in the wilderness that never should have had the rights and powers of a state in the first place, but you know that people are going to fight for its ongoing existence.
OTOH, China has four Direct-administered municipality - Wikipedia. We should turn the whole New York, LA, and Chicago metro areas and probably several others into cohesive local governments, but since Indy and Marion County did unigov back in 1970 (FFS!), what kind of progress have we made in this area? Close to zero. Chicago is just one of 134 municipalities in Cook County, Illinois–it’s fucking madness! Also, far be it from us Amuricans to learn something from China–or anybody else.
It’s like the Holy Roman Empire, and look at all the change and upheavals that were required to turn that into Bismark’s unified Germany (which was still a bit of a mess).