And in those cases, we should do our best to constrain their actions–because, again, the goal is to do whatever produces good outcomes. Sometimes that means letting judges take the lead, sometimes that means resisting those in power.
You’re still assuming that LHoD is insisting on a process. They’re not. They’re interested in what produces good outcomes, which varies from case to case and from situation to situation.
When “judicial activism” produces good results, use it. When it doesn’t, constrain it. Just like when you want to cut a board, you use a saw, but when you want to attach two boards together, you put the saw down and pick up the screwdriver instead.
Of course LHoD is insisting on a process. That process is “do whatever it takes within a vaguely plausible interpretation of the law to reach your desired outcome.” The problem with this approach is that it only serves your ends if the people who desire different outcomes refrain from employing your methods. Do you really trust Donald Trump to appoint judges who won’t abuse the power you would so blithely give them?
I advocate a process in the same way that others in this thread advocate an outcome: by this same reasoning, they advocate for a nation in which schools are still segregated, abortions are still illegal, sodomy is a felony, and same-sex couples in North Carolina can’t get married.
I trust Trump to nominate people like Scalia and Gorsuch, who are hugely approved of by many of the advocates of “process.” We’ve seen what this sort of judge does to folks’ rights.
It’d be lovely if I could trust that the opposition would behave in a manner that protected rights and led to good outcomes. But I’d have to be blind to history and current events to hold such trust.
Bricker, I realize you’re responding to several people at the moment but wondered if you would consider us in agreement or not with respect to the above points.
On the larger flow of the thread, count me among those who consider an outcome-focused approach to judicial decisions a dangerous one (although outcomes and precedent must always be taken into consideration).
If you’re advocating outcome-based results, you don’t get to claim Obergefell but not claim Dred Scott.
And you can get most of the liberal corpus without abandoning the need for a rigorous procedural philosophy.
What you get by abandoning procedure is a little more at the margins (as long as liberals are the ones calling the shots) and long-term reduction in the strength of the rule of law in the US. To make that call, you at least to understand and think carefully about what that means. It has nothing to do with Vietnam.
It’s interesting to me that people who argue against my approach keep going back more than a hundred years for their counterexamples. What, Shelby County v. Holder ain’t good enough?
If I’ve given the impression that I think the courts are always my friend, I apologize. That’s not what I intend. I think that, on balance, courts tend to move civil rights forward more than they move them backward. I think that the justices who most exemplify the strict constructionism that folks like Bricker advocate are justices who most stand in the way of civil rights progress.
My approach doesn’t bring us to the land of milk and honey, but it gets us a damn sight closer than Scalia would have us.
To paraphrase Bone, that is neither an argument, nor a fair assessment of what I said. But I understand if you don’t care to try to contest the fact that a fetus is not a child. It really can’t be done without reference to religious mumbo-jumbo, and that would give away the game.
I am not sure that follows. Dred Scott was an example of following the law, rather than looking to the outcome.
I don’t know that procedure is or needs to be abandoned in order to consider the results of a decision while making the decision.
The procedure is that judges are either elected (in the case of some states), or appointed and confirmed by elected officials.
Those judges then make decisions based both on the words written on paper, and on the principles that they were selected for in the first place.
We all are going to disagree on what constitutes activism, vs what constitutes a reasonable interpretation of the law. When we disagree, it’s gonna be activism, when we agree, it seems pretty reasonable.
Unless you are willing to go all the way back, and consider mayberry vs madison to be activism, and that the courts are actually just a useless appendage of the government, rather than a check and balance against the other branches, there is nothing procedural being violated when a judge rules in a way you don’t like.
When a judge rules a way I don’t like, I don’t whine that it’s activism, and try to limit the power of one of the three branches of government, I instead talk to my elected representatives, to get them to select better judges, I vote for representatives that will select better judges, I encourage friends and peers to contact their representatives, and to vote for representatives who will select judges who will interpret the laws in a way to give outcomes that, in my opinion, are best for society.
If you have a different opinion on what is best for society, you are certainly welcome to do the same.
So, while I do believe that results matter, and that the outcome of a decision should be heavily weighed while considering the decision, I do not see that as abandoning procedure or the rule of law, instead, I see it as working within procedure and rule of law.
In the end though, IMHO, any ruling that decreases suffering, indignities, or misfortune is a good thing, and any ruling that has the effect of increasing suffering, indignities or misfortune is a bad thing.
No. Please do explain this obvious fact that I’ve stipulated multiple times.
Would you have me believe that McConnell, Mr. “Obama doesn’t deserve to nominate a justice in his last year in office,” would have let the filibuster stand, absent Reid’s action? Because nothing in my experience of McConnell or the Republicans who serve with him makes me think that’s realistic.
I make no claims about the legitimacy of the courts. That’s not a subject of particular interest to me. I fully expect Trump to trample over decency–and he would do so whether or not I support judges working toward social justice.
This too, I think, is a poor standard. More often than not decisions will have multiple consequences, some good, some bad, impacting different things. Ultimately this is a utilitarian approach that is opposed to the idea of individual liberty. Is it desirable that many should suffer a little so that a few should have their suffering alleviated? I’d rather that calculus not be revisited each time a judge strives for their own preferred outcome.
Pardon me for asking, but how many “credible analysts” saw the Republicans taking control of the House in 1994 a year in advance? Besides Jack Germond, that is, but he was a bit of a Republican “homer.”
For that matter, how many saw Trump being elected at 7 PM Eastern on election day, much less months in advance?
If enough “Bernie backers” get their acts together and realize before next year’s primaries that even if Sanders is elected in 2020 (assuming he runs), he won’t be able to do anything without 60 Senators to back him up (assuming that they don’t come up with a rule change along the lines of, “It only takes a majority of Senators to invoke cloture on a bill limited to modifying taxes” and use the recent rule change as an excuse), a number of “safe” Republican seats are now in play.
That’s an odd observation given your comments about Jim Crow and Vietnam. Dred Scott is, of course, one of the worst exercises of judicial power in world history, so it makes for a pretty good example even more than a century later.
I don’t see you grappling with the main criticism of your approach, however. You seem to just be dismissing outright that there’s any risk to the rule of law by endorsing outcome-oriented reasoning.
I also don’t think you get to claim all the liberal victories in our courts to be a consequence of your approach. They aren’t. What you’re advocating goes further than is necessary. Justices Ginsburg and Breyer would not agree that they should just make whatever decision leads to the outcome they prefer in a given case.
No, I don’t think it was. Taney wanted to protect slaveholders, so he wrote a byzantine and hard-to-follow ruling to overcome the fact that the Constitution quite clearly gave Congress power to ban slavery in the territories.
This argument betrays the fundamental misunderstanding at work here. To have the rule of law, you must have decisions of your courts be driven by principles and not solely the ad hoc decisions of some individuals who happen to be in charge at the time. That’s just what it means to have the rule of law. So if you want to reject that, you really do have the reject all the benefits of the rule of law.
It is true that this isn’t binary. A system’s fidelity to the rule of law isn’t an on-off switch, it’s more like a dial. But it’s a dial where you don’t actually know how far you can turn it before the whole thing shorts out.
You’ve said that you want the results of court cases to be decided based on whatever advances your concept of justice. This is a procedure. It’s not a particularly complex procedure and ironically it’s not a particularly fair procedure, but it’s definitely a procedure.
Your insinuation that, say, Richard Parker really, really wants abortions to be illegal, sodomy to be a felony, schools to be segregated, and gay marriages to be banned is surely wrong. Yet here he is, suggesting that “judges make it up as they go along in furtherance of their idea of justice” is not, in the end, good. This should suggest to you that it is, in fact, possible to interpret law reasonably and still end up with good outcomes.
Sure. But Scalia at least claimed to be limited by what he fairly thought the law to mean (as did the justices who gave us abortion, gay marriage, and all the good outcomes you tout). I would suggest that in giving a Scalia the power to decide cases based on what’s in his heart rather than what’s in the law, you have actually made things worse.
And frankly, conservative justices do generally rule in a manner which protects rights. They’re just frequently different rights than the ones you want. I see no reason to accept that the rights you want are important and deserve protection, while the rights that Bricker wants are not and don’t. If only there were some fair way (voting, perhaps?) to decide between these competing visions…
You’re exaggerating what I’m saying in order to make it silly. I’m not sure I want to spend a lot more time correct such exaggerations. So sure: if I were saying they should just make whatever decision leads to the outcome they prefer, that’d be a dumb thing to say.
You not only left aside the debate, you left aside the logic.
The transgender bathroom debate is NOT and NEVER WAS about men being allowed to use the women’s room. It’s about transgender women being allowed to use the women’s room. Your analogy is flawed.
In an engaged democracy, unintended consequences aren’t a problem, as they can be addressed as they arise.
With our current cynical and disengaged electorate, unintended consequences have a harder time being addressed.
But there are always going to be consequences for any actions, including many that are not initiated by the political process at all. (could be foreign, could be natural, could be economic causes.)
Refusing to address problems, because it is possible that other problems may arise as a consequence is not a responsible stand to take in a democracy.
I absolutely disagree. I think that being stuck in a dead end MW job, or stuck with massive medical bills or school loans, or in pain and/or dying from a medical condition that could easily be treated are things that are opposed to the idea of individual liberty.
Depends on how you define suffering. If you consider having to pay taxes to be suffering, it you consider not being allowed to discriminate against minorities and other marginalized groups to be suffering, if you consider being asked to be responsible with your guns when you are in public to be suffering, then yes, you may suffer a little in order to alleviate others from actual suffering that destroys their lives and removes their ability to live in this world as productive dignified individuals at all.
Is it okay for that calculus to be changed any time the ideological makeup of congress shifts, and they pass all new laws?