SCOTUS justices and the division in the US: should they try to ease it by their opinions/decisions

Will the SCOTUS justices’ (presumed) awareness of the extreme and rarely seen degree of division in the US influence their decisions? Should it? Should they actively try to ease it?

I hope it does, and that they will try to mend the nation’s rift, but I am not optimistic. I don’t know much about US law but the concept seems self-evidently incompatible with even a minimal originalist interpretation of the Constitution. I suspect too many justices would be disinclined to ‘tinker’ with the original wording of the Constitution for them as whole to agree to even attempt such a mission.

But, as I say, I really am ignorant about their limits and intentions so mostly want to hear what everyone else thinks.

(I guess this could have also been posted in Elections. Please move prn)

ETA: Maybe by declining to hear any case that even touches on abortion, for example. Or gay equality. Or, of course, in their formal opinions for those cases they do hear.

No, in fact, the Supreme Court should do quite the opposite: Not allow outside circumstances to affect their analysis of the legal stuff. Otherwise that would be like a sports referee making calls based off of “well we might really piss off the crowd if we say the ball was out of bounds.”

They do not see it. They are the definition of the Ivory Tower. I wish I could find the story where someone asked justice Kennedy about the Citizens United ruling and how he claimed it was a good decision, would cause no harm and then has, provably, caused a great deal of problems. He refused to acknowledge that. It’s all good in his theoretical head of how the world theoretically works. Nevermind reality (remember how long it took southern states to pass laws restricting voting rights after the SCOTUS torpedoed the Voting Rights Act…IIRC it was literally a week or two). Apparently it is all peachy in their view. Southern states are way past such shenanigans right? And of course we see massive efforts at voter disenfranchisement. Yet they resolutely will tell you all is well and is as it should be because state’s rights are the most important thing…or something.

You can look at the decisions written by Scalia and see a man doing nothing but twisting facts into his worldview and rendering decisions from them. He claimed a pious adherence to “original intent” to bludgeon people with it when it suited his purposes then completely abandon it when it suited his purposes. Problem was he was a really smart guy and was good at this and got people to buy his bullshit.

All justices do something similar. They are human afterall but the conservative justices bend and twist more in their pursuit of their ideology.

IMHO, the Court should not be a political body. It should look at the case in front of it and if the facts and the law require a radical opinion, a modest opinion, or a boring opinion, then that is what a Justice should write.

Likewise, if a case is presented for cert that deals with abortion or gay rights, the Court should consider that just like any other cert petition and if it presents issues that should be reviewed, then it should be reviewed.


What? God no. This is not the role of the Supreme Court or anything even close to it. The mere idea of your suggestion is frightening.

You are correct when a lower court is hearing a case.

But the SCOTUS defines what the law means. There is no clear roadmap for them. Consider the arguments over the 2nd amendment. One sentence has been endlessly parsed and argued over for decades. There is no bright line that the SCOTUS has to adhere to the letter of the law (Scalia’s bullshit original intent is ridiculous…he did not even abide by it and he was its most ardent supporter).

The Supreme Court does define what the law means, but it doesn’t (or at least it shouldn’t) rule about what it thinks the law should mean, nor should it worry about the outcome of a certain decision.

It applies the same sort of legal analysis that the lower courts do only it has the power to overturn prior precedent if it deems appropriate, again, based upon a review of the law, and determining if stare decisis should apply.

I’m not going to address the attempted hijack about Scalia. We’ve done that in other threads and it is not what the OP asked.

Why is frightening? How is it frightening?

I agree I can see problems here but I d not want to guess what you are thinking about.

I asked, and hoped for it, because as an outsider, it seems to me that the US ‘as conceived’ (you know, all that “self-evident” stuff) may soon cease to exist and may well then become irrecoverable.

The supreme court is one of the branches of government. I hope your civics classes told you that the three branches are co-equal. They are meant to be a check-and-balance on each other.

In no way is the Supreme Court meant to be a rubber stamp for the legislature or executive. But conservatives think the will of the people via their legislators should get their way and howl if the supreme court stands in their way. You only need to read the Federalist Papers to see the FFs wanted to curb the tyranny of the majority (they are very explicit about it). The Supreme Court is one of those (potential) curbs.

And the Scalia bit was not a hijack. He is a perfect example of this. He used original intent when it suited him and then veered way off when it suited him and is emblematic of this problem.

(post shortened)

The Supreme Court is supposed to adjudicate according to the laws of the land. They are not supposed to decide cases based on their own personal likes, or dislikes, of an issue. What does the law actually say? What arguments were used by legislators to debate the law in question before passage? Which laws were in effect at the point in time someone is claiming an injury? What facts/evidence has been presented to lower courts? Were defendants granted their rights according to state or federal laws?

51 legislatures pass bills into law. The Supremes can decide if a particular law is constitutional, or too broad, or too narrow, or if state/federal laws were followed. It’s up to the voters to decide which elected legislators make those laws. If you don’t like a particular law, try to change the law thru the legislature.

There is no way that a court could rule that would end the current degree of division amongst the voters without pissing off even more voters.

It’s disturbing to think that someone would use the Supremes, or the Supremes would chose, to arbitrarily replace elected legislation bodies.

Because the OP is suggesting a massive form of social engineering commanded by a small group of unelected lifetime rulers. Did you read the last line of the openng thread? About how certain cases wouldn’t even get heard only to appease this idea?

By outsider do you mean not a U.S citizen? Lot of gall then suggesting how we run stuff.

Our founders were shooting each other in duels for Kripes sake. And half the country went into a bloody horrific war with the other half. What ever threats you imagine to our original intent currently exist are chicken shit compared to our past. Americans have always been split and at each others throats for one reason or another. It’s who we are. Your suggestion would not only make things worse but would be a jeopardy to our very liberty.

It’s a bad idea. Accept it and move on.

Checks and balances. It’s this cool thing built in to our system.

If the SCOTUS decides to be kings/queens and dictate their will the legislature can remove them. Or they can pass different laws (which is usually what they do to get around SCOTUS rulings…nothing new there).

Not to mention the SCOTUS cannot write any new laws so they cannot govern on their own.

Co-equal branches of government and checks-and-balances. Look it up.

I am relieved that Chief Justice Roberts himself had similar gall in trying to do what I had wondered might be done.

From the abstract :

“At the beginning of his first term as Chief Justice, John Roberts pledged to try to persuade his colleagues to consider the bipartisan legitimacy of the Court rather than their own ideological agendas . . . Roberts did precisely what he said he would do, casting a tie-breaking vote to uphold the Affordable Care Act because he thought the bipartisan legitimacy of the Court required it . . . . Roberts’s task of preserving the Court’s bipartisan legitimacy . . . will depend on the willingness of his colleagues to embrace his vision. . . . the Chief Justice’s vision of the Court as a bipartisan steward is . . . more urgently needed – than ever.”

All of the above from: Can the Judicial Branch be a Steward in a Polarized Democracy? by George Washington University Law School Professor of Law, Jeffrey Rosen.

Imagine you are a litigant in court. By the law, you are owed a million dollars for what the other guy did. You read the law, and even the judge reads the law and the law is pretty clear.

However, the judge is worried about the “bipartisan legitimacy” of his court and worries how he looks on CNN, so he doesn’t award you the million dollars for political reasons.

Do you feel cheated? You damned sure should feel that way. And the judge should be ashamed.

If the Supreme Court really wanted to ease political tensions, it could do so extremely easily. On the day that they are sworn in, they should submit their retirement letter dated 12 years from that day. A Supreme Court that doesn’t have to be fought over as a generational thing and has constant turnover so that every Presidential term gets a set number of picks, but you know that the next president does too would make it a much less dire situation and make the Presidency less about trying to stack the Court for the next 30 years and more about the actual Presidency. It also prevents SCOTUS justices hanging on into their 80s for fear of upsetting the balance of the Court (Nothing against RBG, I like her, but she’s 85. I know of very, very, very few if any 85 year olds that should be making decisions even about whether they are still capable of driving a car, let alone the fate of the country.)

Wow, a strawman to end all strawmen.

Of course, the Supreme Court should adjudicate cases purely on the basis of law. Just as the President should be the President of all the people.

I will pause here for an hour until you stop laughing.

For almost all of its history the Court was what we would now call conservative. A few individual judges were not, but courts as a whole leaned conservative to the point of falling over. The Dred Scott decision. Plessy v. Ferguson. The host of anti-labor and pro-corporation rulings. Congress actually approved a constitutional amendment in 1924 to ban child labor after the court shot down their bills. An insufficient number of states ratified it and it wasn’t until 1938 that the court upheld a new bill.

The common feature in these and a thousand other cases is that the culture changed rather than the Constitution. Mr. Dooley’s famous dictim of 1901, “th’ Supreme Court follows th’ iliction returns,” applies today as much as it did then.

It’s an insult to our intelligence and experience to state a proposition as ridiculous as a neutral hermetic court. None such has ever existed. We need to start from that axiom for any discussion.

But the justices should and do take into account the consequences of their rulings even when it is outside the direct language of the constitution. Why is it illegal to yell fire in a crowded theater, or incite a riot. There is nothing in the first amendment that carves out an exemption for this type of speech. Nor is there anything in the second ammendment that says that the right to keep and bare arms should not be infringed except when it comes to bio-warfare agents and convicted violent felons. But the justices realized that on practical grounds an absolutest view of these amendments would have strong negative practical consequences.

A Supreme court that lives in a cloistered world of law books and never raises its head to check on how things actually work in the real world now and then is just as dangerous.