# SCOTUS become politicized vs. not ruling according to people's preferences **URL:** \ **Category:** Politics & Elections\ **Created:** [May 9, 2022, 9:57pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208 "2022-05-09T21:57:10Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [May 10, 2022, 3:48pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/21 "2022-05-10T15:48:10Z")
> [@Little\_Nemo](#): > > Wacky idea here; they could avoid being viewed as political by making their decisions based on the law rather than following a political agenda. Yes, but that’s what everyone says when SCOTUS rules in their favor. Rulings in their favor - “SCOTUS is just following the law.” Rulings against them - “SCOTUS is being political.” I guarantee you, every pro-lifer right now is saying the 5 SCOTUS justices who are voting to overturn Roe are simply following the law. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [May 10, 2022, 4:10pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/22 "2022-05-10T16:10:15Z")
I’d say that if the judges are lying during their confirmation periods then it has become politicized. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [May 10, 2022, 4:38pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/23 "2022-05-10T16:38:41Z")
> [@Johnny\_Bravo](#): > > Anybody who claims to to care about “original intent” and also claims to be in favor of, say, black people being allowed to vote is (kindly put) skilled in the art of doublethink. How do you figure? As far as I can tell, someone who cares about original intent would either look into the Fifteenth Amendment and nod and say _“I’m in favor,”_ or would look at the Constitution’s amending process, and nod and say they’re in favor of _that,_ and then — well, read on until they got to the Fifteenth Amendment, and then do the other nod-and-say I just mentioned. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [May 10, 2022, 4:43pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/24 "2022-05-10T16:43:14Z")
There are always two sides to any issue. That doesn’t mean that both sides are equivalent. ---
**Author:** ![FinsToTheLeft](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finstotheleft/32/2930_2.png) [@FinsToTheLeft](https://boards.straightdope.com/u/FinsToTheLeft)\ **Post date:** [May 10, 2022, 4:46pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/25 "2022-05-10T16:46:42Z")
> [@Chronos](#): > > There’s no way a court system couldn’t be political. The problems come when people try to pretend that courts aren’t political, whatever the heck that’s supposed to mean. Canada does not have these issues with the Supreme Court of Canada. I’m a political junkie and I can name the USSC but not our own and I’ve met one of our retired SCC judges and went to camp with her kids. ---
**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:** [May 10, 2022, 4:50pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/26 "2022-05-10T16:50:31Z")
> [@Velocity](#): > > Yes, but that’s what everyone says when SCOTUS rules in their favor. > > Rulings in their favor - “SCOTUS is just following the law.” > > Rulings against them - “SCOTUS is being political.” > > I guarantee you, every pro-lifer right now is saying the 5 SCOTUS justices who are voting to overturn Roe are simply following the law. People can say all kinds of things. But laws are written down and you can read them if you want. For example, in Bush v Gore, Florida election law said that there was supposed to be a recount. Federal law says federal judges are supposed to follow state election laws in state election disputes. But the Republican justices didn’t want that so they decided to ignore those laws. Their excuse was that they had to reach a decision as quickly as possible. But there’s no reason they couldn’t have quickly rendered a decision that followed the law. Their objection, of course, was that following the law wasn’t going to produce the outcome they wanted; Bush getting elected. So they ignored what the law said and handed down a decision that made Bush President. And then said that their decision should not be seen as a precedent because even they knew what they were saying had no legal basis (and because they knew they might want to make the opposite decision in some future election to appoint another Republican President). Or look at the current dispute over overturning Roe. Stare Decisis is the law; it says judges are supposed to abide by established precedents. The Roe decision established that choosing to have an abortion is a constitutional right. So all judges are supposed to follow that rule. You noted Clarence Thomas said _“People have to learn to accept rulings they don’t like.”_ What Thomas and four other Republican justices are doing right now is the opposite of what Thomas said people should do. They didn’t like the Roe decision so they are overturning it. And they have no legal basis for doing that. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [May 10, 2022, 5:23pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/27 "2022-05-10T17:23:23Z")
Stare decisis isn’t the law though. There’s no actual requirement for the courts to respect it; it’s just a legal principle that justices respect to varying degrees. ---
**Author:** ![KidCharlemagne](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@KidCharlemagne](https://boards.straightdope.com/u/KidCharlemagne)\ **Post date:** [May 10, 2022, 5:37pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/28 "2022-05-10T17:37:47Z")
> [@Sage\_Rat](#): > > I’d say that if the judges are lying during their confirmation periods then it has become politicized. Came here to say this. This is the real outrage. Even if Roe is a weak case, the confirmation hearings were intended to vet them based on their opinions on these cases. A sort of public shadow court. They grossly misrepresented themselves and they should have to answer for it. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [May 10, 2022, 5:53pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/29 "2022-05-10T17:53:04Z")
Meh, it’s not like everyone didn’t know they were lying. Democrats knew they were lying and voted against them for it. Republicans knew that they were lying and voted for them for it. Lisa Murkowski and Susan Collins apparently were the only two people in the entire country who believed them. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 10, 2022, 5:59pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/30 "2022-05-10T17:59:29Z")
> [@Martin\_Hyde](#): > > I think this is sometimes seen as an ahistorical norm that went against 200 years of precedent. So is, say, trying not to be institutionally racist. We would all lament if that “regressed to the historical norm” too. Something bad is happening and it’s not really a defense against it to say “hey, it was bad for a long time before it got better, so it’s not such a big deal if it gets bad again” ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 10, 2022, 6:09pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/31 "2022-05-10T18:09:29Z")
I don’t think I said anything in that quoted text about good or bad–in various posts in this thread I have specifically said I don’t think the SCOTUS is constituted in a good way, and don’t think it operates in a way that is good for democracy. None of that suggests that it is a good thing to perpetuate false beliefs about reality. If something is a problem, it’s a problem. If you say something is a problem because it “breaks a norm” that never existed in the first place, then…that waters down whatever point you’re trying to make significantly. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 10, 2022, 6:34pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/32 "2022-05-10T18:34:37Z")
Fair enough, I interpreted your position beyond your intent. I have a bit of an itchy trigger finger on these things because I’ve been seeing a lot of really obscure and bad defenses about the current political climate by people saying essentially “oh, but in 1884 this thing happened, so this isn’t totally unprecedented” as though the current descent into fascism is no big deal because you could cherry pick some historical comparison from when times were shitty. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 10, 2022, 6:57pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/33 "2022-05-10T18:57:44Z")
When I look at the problems the Democrats have with this topic, to me it’s at least partially a problem with strategic thinking. And that’s the main risk of buying too much into what (I think) is a false narrative about the Supreme Court that emerged in the 60s and 70s. We had some very important Supreme Court decisions with that historic span of the court–Brown, Griswold, Miranda, Loving, Roe, to name some of the biggest ones. I think it created a perception that the Supreme Court is a natural “ally” in the battle for civil rights. Well, **that** Supreme Court certainly was one. But what about the Supreme Court from 1788 to around 1950? That Supreme Court had an abysmal record in most of those areas of law. That should have maybe suggested that not understanding the Supreme Court is not a “natural ally” but a political institution that behaves based on its composition. I think the right realized this and went hard to take control over it, and exceeded. The Democrats appeared almost numb or disinterested in the topic until literally Trump won election and then they were like “oh shit.” But it was kind of an annoying “oh shit”, because the GOP didn’t run this plan in secret, they broadcast it for 40 years. Another thing I also think is worth remembering, is having the Supreme Court on your side doesn’t always translate into meaningful reality. For example we all (rightfully) celebrate Brown, but many schools in the South took over a decade to integrate. Additionally, many Southern districts started to defund their local schools and white parents fled to private schools en masse. There are many districts in the South, through district line drawing, funding games etc, are basically just as segregated now as they were in the pre-Brown era, and possibly even funding the “black” schools worse. There was a good article (I think in the NYT) about a district in Mississippi where almost all of the district’s children are black. This is a rural MS district–now, the district’s population isn’t almost all black, there are plenty of whites. They almost all go to a private school system. The NYT article chronicles a popular High School principal who was desperately trying to get a tax levy passed for some funding for his cripplingly underfunded school. The levy got like 55% of the vote–but Mississippi law many years ago was changed specifically to make such levies hard–it requires 60% of the vote for such a levy to pass in Mississippi. When the principal was on the campaign trail trying to gin up votes for the levy, there were white residents who literally said “we aren’t paying more taxes for the colored school.” That’s right out of 1945, and that happens right now, in spite of Brown. A good ruling is…good, glad it happened, but it’s not the end of the fight. I think large parts of the Democratic party have bought into a false narrative that winning key court battles is a form of permanent victory. The reality is ground work needs to be done, opinions need to be changed. The one successful movement in recent years that stands out in my mind along those lines is the gay marriage debate. While it was ultimately legalized for most of the country via a Supreme Court ruling, Democrats had successfully waged a 12 year campaign, starting the early 2000s when Republicans “went after” gay marriage by passing silly defense of marriage laws, and it was starting to overturn some of them and even get gay marriage legalized in state by state. Not in the courts, but in referendums and through State legislatures. They built a genuine national consensus on that topic, which is why despite the _coup de grace_ being a Supreme Court case, most people now strongly support gay marriage–enough so that even if Alito’s court overrules Obergefell, a lot of States will probably very quickly pass legislation formally sanctioning it. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [May 10, 2022, 7:10pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/34 "2022-05-10T19:10:24Z")
> [@Martin\_Hyde](#): > > The Democrats appeared almost numb or disinterested in the topic until literally Trump won election and then they were like “oh shit.” Maybe, but there was also some bad luck involved. Despite the White House being roughly even between D and R since the Reagan years, Ds have only had the opportunity to appoint five justices (of whom two have already died or retired), with Rs appointing seven (all of whom still serve). McConnell denying Obama the opportunity to appoint Garland is arguably the only intentional action involved in the Court’s current makeup. Clinton should have nominated younger justices, I guess. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [May 10, 2022, 8:01pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/35 "2022-05-10T20:01:00Z")
> [@Martin\_Hyde](#): > > And that’s the main risk of buying too much into what (I think) is a false narrative about the Supreme Court that emerged in the 60s and 70s. It wasn’t just that the court seemed be an ally, it was also that, for many years, for many justices, getting onto the Supreme Court seemed to moderate conservative justices. O’Connor, and even to some extent Anthony Kennedy, moderated, and other Republican-nominated justices became liberals. I think the thinking was, once you get to that exalted level and could see the whole picture, you would naturally move towards some middle ground. This changed, in my opinion, with Thomas and Scalia, and since then, Republican presidents were careful only to nominate approved judges from the Federalist Society who were so steeped in right-wing legal circles that there was little chance that they would moderate. Now conservative judges routinely parrot right-wing talking points. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [May 10, 2022, 8:09pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/36 "2022-05-10T20:09:55Z")
> [@Akaj](#): > > with Rs appointing seven (all of whom still serve). Except for Souter. ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [May 10, 2022, 8:26pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/37 "2022-05-10T20:26:00Z")
Oops, my bad. ---
**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:** [May 10, 2022, 8:34pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/38 "2022-05-10T20:34:25Z")
Isn’t “But both sides do it!” just another way of saying “There is no right or wrong-It is o.k. to do it if someone else does it too”? ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [May 10, 2022, 8:54pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/39 "2022-05-10T20:54:23Z")
> [@k9bfriender](#): > > Meh, it’s not like everyone didn’t know they were lying. This is like saying that it’s okay to hire an arsonist for fire chief, so long as we’ve all sort of accepted that we’d rather hire an arsonist than some lame-ass bastard who’s all big on “fighting fires” and “saving lives” and all that nonsense. _We all need that monster BBQ this weekend, yo!_ The judicial system is where we trust and rely on truthful statements, made under oath, to help guide the country and to see to it that the guilty are punished and the innocent are set free. And under any system, the standards of the people at the top are what lead the way for all those below. If these aren’t honest, upstanding individuals then you can’t expect better of all those beneath - and that’s concerning. If our highest judgements aren’t being made on the basis of truth…well, then what are they being based on? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 10, 2022, 9:07pm UTC](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208/40 "2022-05-10T21:07:59Z")
> [@Martin\_Hyde](#): > > I don’t think I said anything in that quoted text about good or bad–in various posts in this thread I have specifically said I don’t think the SCOTUS is constituted in a good way, and don’t think it operates in a way that is good for democracy. > > None of that suggests that it is a good thing to perpetuate false beliefs about reality. If something is a problem, it’s a problem. If you say something is a problem because it “breaks a norm” that never existed in the first place, then…that waters down whatever point you’re trying to make significantly.⁢ Sure. But who do you see who was taking that position? The only unprecedented action was not holding the vote for Garland. My claim at least was simply that these actions were clearly a naked partisan power grab, with judges being considered based on their beliefs. Similarly, the argument isn’t that it was wrong to go back to 17th century jurisprudence, but to do so in order to avoid more recent jurisprudence. Surely the case law that came after we became a nation should be more controlling. Just in general, the more recent decisions are more controlling, as they are based on a larger amount of case law. To me, you come off as arguing things that aren’t really in contention. No one is arguing that you can never look at 17th century law, and pretty much everyone in this thread is saying that the Court has been _de facto_ partisan throughout most of its existence. [Previous page](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208.md?page=1) [Next page](https://boards.straightdope.com/t/scotus-become-politicized-vs-not-ruling-according-to-peoples-preferences/964208.md?page=3)