The general proposition of course is debatable and has been previously. The question I’d like to examine is if in the specific arena of politics and law, where outcome is a central issue, it holds true. Certainly a great many people take this as their practical position. For example, the Supreme Court ruling overturning Roe v. Wade is described as striking down reproductive freedom and bodily integrity. That’s probably a consequence of the ruling even though the justices insisted that they were ruling on the validity of an issue of law. Critics of the decision hold opinions ranging from the justices being negligently blind to the results of their ruling to accusations of disguising an ad hoc anti-abortion decision in supposedly neutral terms.
Of course on the position that justice is blind the well was thoroughly poisoned during the segregation era, in which theoretically color-blind laws just somehow always worked out as discriminatory towards African-Americans. This led to affirmative action, which some critics say now permanently institutionalizes cognizance of race, and they question what threshold if any can ever say that affirmative action would no longer be required. Some also hold that “playing the race card” has led to a near-conspiracy theory level of presumed malevolence behind any perceived inequality. Or perhaps rather that intent, real or supposed, is irrelevant if outcomes are unequal. This in turn leads to the whole debate over “equality” versus “equity”.
Some say that the whole “justice is blind” paradigm was either a lie to begin with, or if not should be abolished to pursue a higher standard of justice that the older standard was incapable of delivering.
Like most things, this comes in good faith and bad faith.
The bad-faith would be many rulings such as “we want to protect women’s health by requiring abortion clinics to meet impossibly high standards” when the real intention is to ban abortion.
The good-faith would be, for instance, unintentional consequences. Such as a court ruling that such-and-such a part of the constitution does not allow private gun ownership, but successful robberies and home invasions then increasing in the wake of such a ruling.
I think the correct aphorism is, “For every action there is an equal and opposite reaction.”
“separate but equal” facilities leads to separate but unequal, which leads to legislation, which leads to following the letter but not the spirit, which leads to more correction, which leads to backlash and counterlegislation, lather-rinse-repeat.
Lady Justice should not be holding scales, but a pendulum.
When I read histories of the Supreme Court I encounter justices who rule according to their personal convictions, their partisan political positions, the considerations of who the plaintiffs are and who their attorneys are, what they think of the current administration, their projections of the results of their rulings, their philosophies of law, their wish to make rulings as narrow as possible, their wish to make rulings as wide as possible, their wish to placate public opinion, their wish to direct public opinion, and their age and the number of years they have sitting on the bench so that their later opinions don’t make their earlier selves sound like jerks.
In short, Supreme Court justices are human. No one can say why they rule they do. We can make inferences because of the cumulative record but they often surprise. What happens after the ruling also often comes as a complete surprise. The forces of all of society over time are far greater than any one act. Intent and consequences are correlated but the r value is nowhere near one.
In this case, it’s clear that the outcome was the only consideration the current court looked at. They had no constitutional authority to overturn Roe.
There are two factors in play here. The ninth amendment, which says there are unenumerated constitutional rights and the legal principle of stare decisis, which says that once a court has decided an issue other courts in the same jurisdiction must follow that precedent (unless they are a higher level of court).
So back in 1972, the Supreme Court had the authority to decide whether or not choosing to have an abortion was a right. They were not compelled by the Constitution to rule in either direction. But once the Supreme Court made that decision, all future court decisions (because obviously there is no higher court) are not free to decide whether or not it’s a right. Once it was decided, it was supposed to remain decided.
The only way the Supreme Court is allowed to take away a right once it’s been declared to exist is if they can point to a specific section in the Constitution that says that right doesn’t exist. Like in 1954 when the Brown decision cited the fourteenth amendment as its basis for overturning the precedent of the Plessy decision or in 1996 when the Seminole decision cited the eleventh amendment as its basis for overruling the precedent of the 1976 Fitzpatrick decision. But the court did not do this in Dobbs because there is no text in the Constitution which supports Dobbs. Alito essentially just said he didn’t agree with the decision the justices had made back in 1972 (calling it “egregiously wrong from the start”) so he was changing it.
And that’s going to come back to bite conservatives. Not only in a backlash in elections but also in what it opens up for future court decisions. What’s going to happen in the future when there’s a liberal majority on the court? Will they decide they don’t agree with the Heller decision, for example, and change it?
Huh? Why not? Look, Roe was a stretch to start with. Altho I am firmly in the “A woman has a right to her own body” camp, Roe was controversial even among legal scholars.
SCOTUS has overturned itself no less than 146 times.
Hammer v Dagenhart allowed Child labor- two decades later- SCOTUS said- nope.
Minersville School District v. Gobitis- 1- you do not have the right to refuse to say the Pledge of Allegiance- only two years later- sure you do.
And I hope we all agree that overturning Plessy v. Ferguson , was the Right Thing.
The point is that it was decided. It’s not supposed to matter if future judges agree or disagree with that decision; once it’s made they’re supposed to abide by it. The law is supposed to be predicable.
Justices can overturn past decisions - but not just because they don’t agree with the decision that was made. They have to be able to point to a specific piece of text that says the decision was wrong.
Which, as I pointed out, was what happened with Plessy. It was overturned because the Supreme Court decided in 1954 that they didn’t agree with Plessy. It was overturned because the Supreme Court said that Plessy conflicted with the text of the Fourteenth Amendment.
Well… even that’s a stretch because Plessy was decided after previous SC decisions had gutted the “privileges or immunities” clause of the 14th amendment. But then by the time Brown came along the court somehow discovered that the “due process” provision of the 14th essentially did everything that the “privileges or immunities” clause was originally intended to do.
Though of course the question famously then is if a right is unenumerated how is someone to claim that a government law infringes on it? The Ninth Amendment is in direct conflict with the founding principle of government: the Police Power of the state, the general authority of the government to regulate, restrict or prohibit things via the due process of law.
To give just one infamous example, during the extreme jingoism of World War One-era America, the Supreme Court upheld the direct draft of men into the federal army to conduct a war overseas; which doubtless made the original Anti-Federalists spin in their graves. But the court upheld it on the grounds that doing whatever was necessary to prosecute a war was an ancient and undoubted authority of government. Liberties, what liberties?
I’ve said that the entire history of the 20th century Supreme Court consists of nothing more than a procession of their overturning their earlier decisions.
This is barely an exaggeration. Everything we hold dear today can probably be traced back to a Supreme Court decision that overturned a previous decision making it illegal. On what grounds? Any damn thing they could make sound legal.
Remember, all (virtually, for nitpickers) cases that come to the Supreme Court have been adjudicated in lower courts, with multiple sets of lawyers presenting cases loaded with arguments and previous decisions. And the Court solicits friends of the court briefs, which nowadays come in dozens or hundreds, each making cases on one side of the case or another and presenting ingenuous ways to justify a decision. Any first-year law-school graduate could come up with a decision that has rock-solid grounding. Since the Court’s clerks write first and sometimes final drafts of their decisions, that’s what happens anyway.
The Supreme Court can do anything for any reason. Can and sometimes has. Just pick your presidents correctly.
In the wake of the the passage Public Safety and Recreational Firearms Use Protection Act of 1994, a.k.a. the Federal Assault Weapons Ban two things happened. The first was that many states started passing new (or relaxed current) laws allowing for concealed carry. The second was that it increased the market for small, high quality easily concealable pistols in larger calibers and gun manufacturers were more than happy to meet the demand.
It seems to me that asking about “Law” and “Politics” in one breath are asking two very different questions. One can argue that passed legislation is a simple direct extension of politics. But judicial interpretation of legislation and regulation is something else again operating under very different constraints.
Are we discussing whether the actual consequences, foreseen and unforeseen, represent a successful implementation of what was the actual intent of the deciders?
Or whether there’s anything but cynicism in judicial decision-making? Or in legislative decision-making?
Or are we talking about the specifics of the abortion and affirmative action decisions the OP mentions and the first couple of posters handled directly?
My (possibly very ignorant) bottom line:
What is the OP asserting, and what is the debate about that assertion? I can’t tie it down enough to formulate an opinion much less an argument to support that opinion.
You’re correct. My mistake. I meant to write “It was not overturned because the Supreme Court decided in 1954 that they didn’t agree with Plessy. It was overturned because the Supreme Court said that Plessy conflicted with the text of the Fourteenth Amendment.”
I’ll illustrate with a hypothetical: a situation similar to the famous “Voyage of the Damned” (MS St. Louis - Wikipedia) occurs where a group of refugees are seeking asylum in the USA from a genocidal regime. After they sue to remain in the USA, a court decides that the letter of the law is against them and orders them deported back to their country of origin. Critics bitterly claim that the court “sent them back to their deaths”, and that the judges either cared more about bureaucratic rule following than human lives or else were motivated by bigotry against the ethnic group of the refugees. My question is, how valid is this criticism?
[quote=Lumpy]Critics bitterly claim that the court “sent them back to their deaths”, and that the judges either cared more about bureaucratic rule following than human lives or else were motivated by bigotry against the ethnic group of the refugees. My question is, how valid is this criticism?
[/quote]
What is this court’s record regarding people from this ethnicity? What about this aspect of law as applied to others before?
You are asking us if the critics to your hypothesis have merit without telling us if they have merit.
I think it’s like a lot of situations where you suspect bias may be a factor. You can’t look at a single incident. You have to look at multiple incidents and see if there’s a pattern.
So in your hypothetical, you’d want to look at other decisions this judge has made and see if this decision was consistent with them. Did he apply the same principles in other cases where the outcome favored that ethnic group? Did he follow the strict letter of the law even in cases where he is known to have disliked the outcome that produced? Did he take a different approach in past cases where a different ethnic group stood to gain or lose?