# SCOTUS justices and the division in the US: should they try to ease it by their opinions/decisions **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2018, 3:48am UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817 "2018-11-01T03:48:12Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [November 1, 2018, 4:59pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/21 "2018-11-01T16:59:54Z")
> [@Whack-a-Mole](#): > > 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. Co-Equal, check! Checks and balances, check! SCOTUS doesn’t check or balance whether the law is a just law, or a good or bad law. It checks if it follows the constitution under certain established criteria. What you are espousing is a review board of the legislatures to make sure they are only passing what you want them to pass. Simply ridiculous ---
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [November 1, 2018, 8:02pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/22 "2018-11-01T20:02:05Z")
> [@UltraVires](#): > > 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. Cases where “the law is pretty clear” never come before SCOTUS. The Supreme Court’s role as a check on the other branches depends on it being perceived as having a legitimate role in government and not as being simply another forum for partisans to duke it out. Say, for example, that the current Court decides to reverse Roe v. Wade, a decades-old precedent that is widely popular (about two-thirds approval). My prediction is that, especially given the dubious circumstances under which the last two conservative justices were seated, the Democrats would consider that sufficient provocation to pack the Court the next time they had the power to do so. This would enrage the Republicans, so that they would then re-pack it the next time they had the power to do so. The end result is that we would have no meaningful Supreme Court at all, it would just be a rubber stamp for whatever party most recently controlled both the Presidency and the Senate. I absolutely feel that the Court should take that likely outcome into account when considering whether to reverse Roe v. Wade. Given the current situation, with two conservative Justices nominated by a President who didn’t win the popular vote and confirmed by the Senate majority trampling on previously established norms, I would hope they would feel constrained to hand down much less conservative rulings than they might personally prefer to, or that they would hand down if the GOP enjoyed the support of a large majority of Americans. But I’m not real hopeful. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 1, 2018, 10:42pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/23 "2018-11-01T22:42:54Z")
> [@Thing\_Fish](#): > > Cases where “the law is pretty clear” never come before SCOTUS. I’d say that happens frequently. What criteria would make you construe that the law is pretty clear? SCOTUS opinions that are 9-0, 8-1, 7-2? ---
**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:** [November 1, 2018, 11:09pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/24 "2018-11-01T23:09:18Z")
> [@Bone](#): > > I’d say that happens frequently. What criteria would make you construe that the law is pretty clear? SCOTUS opinions that are 9-0, 8-1, 7-2? None of those, since you’re leaving out all the lower courts, where there must’ve been one that found differently or used bad reasoning to find it. There’s no reason to grant cert if the lower courts already have the right legal interpretation and the right outcome. Even if it’s that there’s a split in the circuits on similar cases, that means that there is at least one court that, despite their best efforts, has interpreted the law in a way the Supreme Court finds incorrect, meaning the law is not clear. If the Supreme Court takes a clear, non-controversial case where everyone already knows what the outcome should be, then they are wasting everyone’s time, including their own which could have been spent on actually deciding something. If it goes to the Supreme Court, there should always be more than one possible interpretation of the law. (Yes, I know I’m not the person you asked, but it seems pretty clear to me. And this seems obviously what they are getting at–even a 9-0 case at the Supreme Court level is controversial. And, yes, I’m leaving out original jurisdiction cases. They are too rare. ) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 2, 2018, 7:52am UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/25 "2018-11-02T07:52:11Z")
> [@BigT](#): > > None of those, since you’re leaving out all the lower courts, where there must’ve been one that found differently or used bad reasoning to find it. There’s no reason to grant cert if the lower courts already have the right legal interpretation and the right outcome. > > Even if it’s that there’s a split in the circuits on similar cases, that means that there is at least one court that, despite their best efforts, has interpreted the law in a way the Supreme Court finds incorrect, meaning the law is not clear > If the Supreme Court takes a clear, non-controversial case where everyone already knows what the outcome should be, then they are wasting everyone’s time, including their own which could have been spent on actually deciding something. > > If it goes to the Supreme Court, there should always be more than one possible interpretation of the law. > > (Yes, I know I’m not the person you asked, but it seems pretty clear to me. And this seems obviously what they are getting at–even a 9-0 case at the Supreme Court level is controversial. > > And, yes, I’m leaving out original jurisdiction cases. They are too rare. ) Right. So I was asking if a person who won $1 million would like the Supreme Court to use politics. Presume that the Circuit Court has made a terrible, clearly bad decision that reverses the award of the $1 million. Under normal circumstances, an in accordance with the law, the Supreme Court would and should summarily reverse. But suppose the lawsuit had some sort of modern day political ramification, say it involved the shooting of a border guard or an illegal immigrant, or perhaps involved an assault committed on an abortion provider or at a gay wedding. I think it would be an outrage if the Court stayed out of that case, and cost a person $1 million who under the law should receive that money, solely for political purposes. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 2, 2018, 3:31pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/26 "2018-11-02T15:31:34Z")
> [@BigT](#): > > None of those, since you’re leaving out all the lower courts, where there must’ve been one that found differently or used bad reasoning to find it. There’s no reason to grant cert if the lower courts already have the right legal interpretation and the right outcome. I disagree. If SCOTUS rules 9-0, I’d say the law was pretty clear as it pertains to SCOTUS review (I’d include 8-1 and 7-2). Your calculus would mean that the law is never clear because there are opposing views, and that only those decisions that are not appealed are when the law is clear. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 2, 2018, 3:54pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/27 "2018-11-02T15:54:46Z")
> [@Bone](#): > > I disagree. If SCOTUS rules 9-0, I’d say the law was pretty clear as it pertains to SCOTUS review (I’d include 8-1 and 7-2). Your calculus would mean that the law is never clear because there are opposing views, and that only those decisions that are not appealed are when the law is clear. Historically, courts have also issued unanimous decisions just to make the \*politics \*clear. The most famous one is of course [Brown v. Board of Education](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#https://en.wikipedia.org/wiki/Brown_v._Board_of_Education#Unanimous_opinion_and_consensus_building). > [@](#): > > The Court reargued the case at the behest of Associate Justice Felix Frankfurter, who used reargument as a stalling tactic, to allow the Court to gather a consensus around a Brown opinion that would outlaw segregation. The justices in support of desegregation spent much effort convincing those who initially intended to dissent to join a unanimous opinion. Although the legal effect would be same for a majority rather than unanimous decision, it was felt that dissent could be used by segregation supporters as a legitimizing counter-argument. … > > Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion. Warren knew very well what a unanimous decision meant. When Eisenhower summed him to the White House to talk him out of it, beloved national daddy Ike said “These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” Never let an assertion that the Court rules only upon law go unchallenged. The Court is a political animal. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [November 2, 2018, 4:17pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/28 "2018-11-02T16:17:58Z")
Just to put this question in context, the satirist [Finley Peter Dunne](https://en.wikipedia.org/wiki/Finley_Peter_Dunne), once wrote, “the Supreme Court follows the election returns.” He noted that in 1901. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [November 2, 2018, 5:15pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/29 "2018-11-02T17:15:03Z")
> [@Bone](#): > > I’d say that happens frequently. What criteria would make you construe that the law is pretty clear? SCOTUS opinions that are 9-0, 8-1, 7-2? If the law is pretty clear, and lower courts had agreed that the law was pretty clear, then the Supremes would not have granted certiorari. ---
**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:** [November 2, 2018, 5:16pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/30 "2018-11-02T17:16:28Z")
In my original post I made the mistake of adding an edit to provide, what in retrospect clearly were, silly examples (e.g. “declining to hear any case that even touches on abortion”). What I should have said is something along the lines of 'try to make any ruling on abortion as narrow as possible (so as to inflame neither ‘side)’. In fact, what I actually _had_ been thinking about when I composed my OP was along the lines of how CJ Roberts might consciously craft decisions to avoid fomenting further division in the nation as he had done in the past for similar, if less pressing, reasons. I also feel compelled to say that I knew full well that SCOTUS was aware of and responded to politics. Indeed, from [the link](https://www.amacad.org/content/publications/pubContent.aspx?d=1058) I provided to **pkbites** , I also knew that the subject was one that could be discussed in a ‘serious’ manner. Mostly, I just wanted to hear what others thought, but felt I should pony up first. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 2, 2018, 5:25pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/31 "2018-11-02T17:25:47Z")
> [@doorhinge](#): > > If the law is pretty clear, and lower courts had agreed that the law was pretty clear, then the Supremes would not have granted certiorari. If it’s 9-0 at SCOTUS, I’d say those 9 justices thought the law was pretty clear. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 4, 2018, 1:12am UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/32 "2018-11-04T01:12:44Z")
Not necessarily. It could be a new and important issue that needed SCOTUS review Like Nixon v United States. 8-0. When leave was granted, there was a lot of uncertainty how it was going to come out. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 4, 2018, 1:14am UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/33 "2018-11-04T01:14:29Z")
Just want to add: Welcome back, **KarlGauss**!! ---
**Author:** ![Tempe\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tempe_jeff/32/7328_2.png) [@Tempe\_Jeff](https://boards.straightdope.com/u/Tempe_Jeff)\ **Post date:** [November 5, 2018, 3:13am UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/34 "2018-11-05T03:13:40Z")
> [@Thing\_Fish](#): > > Cases where “the law is pretty clear” never come before SCOTUS. > > The Supreme Court’s role as a check on the other branches depends on it being perceived as having a legitimate role in government and not as being simply another forum for partisans to duke it out. > > **Given the current situation, with two conservative Justices nominated by a President who didn’t win the popular vote and confirmed by the Senate majority trampling on previously established norms, I would hope they would feel constrained to hand down much less conservative rulings than they might personally prefer to, or that they would hand down if the GOP enjoyed the support of a large majority of Americans.** But I’m not real hopeful. Rather bizarre mind-view. Even a Liberal should not appear insane in Public. I’m sure you have heard of a fine school called the Electoral College. Previous norms? Opposed by Bat-shit crazy liberals suborning Perjury by Witlesses? They witnessed nothing and were not credible. Ford plus the others equal an insane attempt to hijack the process lovingly stoked by liberal fools. But, you already know that. Ends justify means… amirite? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 5, 2018, 9:12pm UTC](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817/35 "2018-11-05T21:12:52Z")
> [@Northern\_Piper](#): > > Not necessarily. It could be a new and important issue that needed SCOTUS review > > Like Nixon v United States. > > 8-0. > > When leave was granted, there was a lot of uncertainty how it was going to come out. That’s a good point. I don’t think a case of that nature had arisen previously so good call out. I was thinking more along the lines of, the most frequent outcome at SCOTUS is actually 9-0, because they agree on the law quite a bit. [Previous page](https://boards.straightdope.com/t/scotus-justices-and-the-division-in-the-us-should-they-try-to-ease-it-by-their-opinions-decisions/823817.md?page=1)