# How seriously do justices like Ginsburg and Thomas consider "the opposing side's" arguments? **URL:** \ **Category:** Politics & Elections\ **Created:** [April 29, 2019, 7:24am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212 "2019-04-29T07:24:19Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [April 30, 2019, 1:22am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/21 "2019-04-30T01:22:58Z")
> [@aceplace57](#): > > 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. ---
**Author:** ![SmartAlecCat](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)\ **Post date:** [April 30, 2019, 2:55am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/22 "2019-04-30T02:55:13Z")
> [@D\_Anconia](#): > > 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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 30, 2019, 3:31am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/23 "2019-04-30T03:31:53Z")
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. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [April 30, 2019, 3:41am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/24 "2019-04-30T03:41:41Z")
> [@Dinsdale](#): > > I don’t know G’s and T’s complete approach… Is anyone else thirsty? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 30, 2019, 9:09am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/25 "2019-04-30T09:09:39Z")
> [@AK84](#): > > _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. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [April 30, 2019, 9:38am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/26 "2019-04-30T09:38:31Z")
> [@Snowboarder\_Bo](#): > > 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. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 30, 2019, 2:52pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/27 "2019-04-30T14:52:15Z")
> [@Spoons](#): > > 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? :dubious: ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 30, 2019, 3:19pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/28 "2019-04-30T15:19:52Z")
> [@adaher](#): > > 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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 30, 2019, 3:33pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/29 "2019-04-30T15:33:25Z")
> [@adaher](#): > > 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. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [April 30, 2019, 3:48pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/30 "2019-04-30T15:48:24Z")
> [@Acsenray](#): > > . . .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. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 30, 2019, 4:41pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/31 "2019-04-30T16:41:43Z")
> [@Little\_Nemo](#): > > 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. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 30, 2019, 4:51pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/32 "2019-04-30T16:51:08Z")
> [@adaher](#): > > 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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 30, 2019, 6:16pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/33 "2019-04-30T18:16:10Z")
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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 30, 2019, 10:42pm UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/34 "2019-04-30T22:42:06Z")
Which, given that the Constitution explicitly forbids strict constructionism, makes the conservative decisions more “activist”. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [May 1, 2019, 12:27am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/35 "2019-05-01T00:27:12Z")
> [@Chronos](#): > > 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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 1, 2019, 3:51am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/36 "2019-05-01T03:51:54Z")
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” ---
**Author:** ![Flyer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/flyer/32/7298_2.png) [@Flyer](https://boards.straightdope.com/u/Flyer)\ **Post date:** [May 2, 2019, 3:13am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/37 "2019-05-02T03:13:33Z")
> [@adaher](#): > > 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. > [@Little\_Nemo](#): > > 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. > [@SmartAlecCat](#): > > 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. ---
**Author:** ![WillFarnaby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/willfarnaby/32/514_2.png) [@WillFarnaby](https://boards.straightdope.com/u/WillFarnaby)\ **Post date:** [May 2, 2019, 11:04am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/38 "2019-05-02T11:04:50Z")
> [@Spoons](#): > > 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? > [@](#): > > Justices can dissent from the majority decision, but again, they must give reasons in writing, and based upon sound legal principles. Why must they? > [@](#): > > 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. > [@](#): > > 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? ---
**Author:** ![WillFarnaby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/willfarnaby/32/514_2.png) [@WillFarnaby](https://boards.straightdope.com/u/WillFarnaby)\ **Post date:** [May 2, 2019, 11:10am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/39 "2019-05-02T11:10:42Z")
> [@Chronos](#): > > “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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 3, 2019, 1:10am UTC](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212/40 "2019-05-03T01:10:32Z")
Which is perfectly valid. Strict constructionism contains a paradox, but other interpretations do not. Therefore, do not use strict constructionism. [Previous page](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212.md?page=1) [Next page](https://boards.straightdope.com/t/how-seriously-do-justices-like-ginsburg-and-thomas-consider-the-opposing-sides-arguments/833212.md?page=3)