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?)
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.
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.
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.
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.
Roe v Wade is a curious example. Ginsberg herself has been ambivalent about the case and had critiqued it in the past.
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 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.
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.
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.
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”?
The only legal way to overrule a Supreme Court decision is to amend the Constitution.
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.
Technically, no one - the Supreme Court by definition is Supreme. But a justice can be impeached (although unlikely.)
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?”
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.
That cite is from 3+ years ago.
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.
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.