Exactly. Except for the part where I just pointed out that can’t happen.
It would only be tyrannical if the government is violating the will of the people when it makes that decision.
The government does it all the time. Terrorist threats are a type of speech considered dangerous. False advertising is considered dangerous. Violating copyright is considered dangerous. Being able to lie on the stand or make a false report to a cop is considered dangerous.
One of the more annoying aspects of our free speech laws is that bigotry, which can be shown by actual studies to be dangerous, can’t be prosecuted. Nevermind that the opposite was allowed to happen for years, where laws were enacted to preserve bigotry.
There’s a reason why the people who complain the most about loosing freedom of speech will turn around and try to police what teachers can teach or what books they can use and stuff like that. When they think it’s dangerous, then suddenly it’s okay to restrict. Everyone always seems to acknowledge that there is some dangerous speech, and wants to be the one calling the shots.
For a start, here’s the Miranda decision; you can see the part where it’s noted that “In accordance with our holdings today and in Escobedo v. Illinois, 378 U. S. 478, 492, Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. Lagay, 357 U. S. 504 (1958) are not to be followed”, as well as the part where AFAICT an actual lawyer turned Supreme Court Justice helpfully specifies that “Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia”.
If you want more, I’ll get you more.
Right – IANAL but ISTM it is probably more of a matter that SCOTUS does not routinely go “well, throw that whole thing into the trash and pretend it did not happen” and (almost?) never goes “void and annul everything that was done under that”. The presumption is that the earlier decision whose effects you are now (partially or totally) superseding had a valid legal foundation as that case was presented then, but further digging down in view of this new case reveals something that leads to a different conclusion. Also, of course, Court does not normally vacate all decisions, actions and judgements that happened under the prior case law; and if there are parts of the earlier decision that are not overrode by the new one, those would continue to stand.
I believe this is wrong as far as the Legislative Branch is concerned … at least in theory. SCOTUS has, over the years, folded, spindled and mutilated Article I when interpreting the enumerated powers of Congress into the overreach we see today.
Because, counselor, unlike the town square, Facebook is private property.
So Facebook is allowed to restrict free speech on their web property, just like an 1802 landowner would be able to restrict free speech on their land property. But the US government in 1802 had limited power to restrict free speech on private property. The originalist argument would therefore be that the US government would have limited powers to restrict free speech on web properties.
Bork would probably have argued that the US government was constitutionally limited from imposing hate speech restrictions, or election interference restrictions on Facebook. But he also probbly wpuld have supported Facebook’s right to implement their own restrictions.
I’m just not sure how finely you want to split that hair; the Obergefell decision mentioned above flatly stated that Baker v. Nelson must be, and now is, overruled when explaining that the state laws at issue are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples — sure as Citizens United famously namechecked two previous decisions when partially overruling one by entirely overruling the other:
And so on. It may not happen all that often; but it seems to me that it can and does happen from time to time.
Then we differ, I think, only in our opinion of what “making law” means. You think the Supreme court is discovering laws (or intuiting laws?). I think they are making them, which they shouldn’t be doing under a separation of powers doctrine.
Aren’t they discovering or intuiting rights, not laws? They can never add anything to a state or federal book of laws, they can only strike some from the books.
What they say becomes the law.
That’s not really strictly true, when talking about rights. What they say restricts what laws can be written.
That would be fun if true.
The majority opinion that is delivered is part of caselaw and is used in the interpretation of cases with similar premises, but that is not “making law” in the sense of coming up with a completely new premise de novo. I’m sure you can cherry-pick a few instances in the history of the Supreme Court where they have overreached in a decision beyond just interpretation of the case before them but as a rule it doesn’t happen because even supposed ‘activist’ judges tend to be relatively conservative (in the legal sense, not politically), often refusing to hear cases that are divisive and unlikely to result in a consensus of the court.
With regard to Griswald v. Connecticut, I’ve been rewatching the Senate Judiciary Committee hearing of Robert Bork, and I find it interesting that he actually tries to circumvent the discussion of the issue over the Constitutional validity of the statute by claiming that 4th Amendment would prevent the police from ever being able to effectively enforce the statute, e.g. the police would never be able to get a warrant to access someone in their bedroom using prohibited contraceptive means, so it was in his line of reasoning an “bizarre and imaginary”. When then-Senator Joe Biden proposed a hypothetical in which a wiretap could be used to justify a warrant (an argument he admitted was practically unlikely but legally plausible) Bork reiterated the position that because it was unlikely (“Unbelievable! Unbelievable!”) that a warrant would ever be issued to allow police to catch someone in the act of using contraception that the question of Constitutionality of the statute was moot. I don’t think this is a line of argument that would hold much water in any academic discussion of Constitutional law and am frankly pretty astonished that such a proclaimed legal mind such as Robert Bork would tender his argument upon it.
As for the phenomenon of “Borking”, watching outtakes of the hearings I’m mostly surprised to see how tame the supposed adversarially partisan questioning is; it mostly has to do with Bork’s professional history as Solicitor General during the Nixon Era (with Arlen Spector decrying the Washingtonian outrage over the “Saturday Night Massacre” as being exaggerated for partisan effect) and the legal views that were quite evidently controversial and outside the mainstream of judicial thinking. The one line of questioning that could be described as a personal jab was Bork’s work outside of his professorship, taken to support his wife’s treatment for cancer and not particularly controversial in and of themselves (and actually normal practice for law professors today). Despite Bork’s anger, mostly over the fact that he’d been led down the garden path by the White House that this would be an easy nomination, it is a mostly boring hearing with even opposing members of the committee making sure to allow Bork plenty of time to expand upon his answers and respond in full, as opposed to the current practice of asking leading questions with no plausible answers and then cutting off the nominee before she can even give a single sentence in response. If the Bork nomination hearings were some kind of nadir of a senatorial partisanship they’ve certainly long been eclipsed by much worse behavior by members of both parties in performative showmanship over fulfilling their legislative duties.
Stranger
IMO the idea that “the SCOTUS creates law” is a useful enough summary of how the SCOTUS works in practice in modern times that we can effectively say it’s true.
There are some famous legal principles that are essentially ambiguous and can be argued either way, and are simultaneously not themselves affected by anything particular about our time. And the SCOTUS has been extremely selective and arbitrary with how/when they choose to apply these principles with the most obvious reason being that they wanted to be able to rule on something in particular and then worked backwards to reach the preferred conclusion.
Some of the really good examples include whether the 14th amendment extends constitutional law that textually only restricts congress to also apply to the states, and whether the interstate commerce clause applies only to actual transactions across state lines or just any economic activity in one state that could have an indirect effect on another state.
Even the doctrine to avoid taking cases that could be controversial or create the perception of politicizing the court, and/or ruling that a case shouldn’t be decided because it’s a “political question” is both an extremely political decision and one that the SCOTUS makes knowing that in some cases it will get a preferred political outcome without needing to commit itself to some kind of constitutional principle.
Common law is judge made law, and it’s a significant portion of our jurisprudence.
If Bork is sincere, he’s not the smartest guy in the room. He’s an idiot.
A cop has a search warrant to look for drugs. He doesn’t find any but he finds a box of condoms in a dresser drawer. Or the cop is responding to a noise complaint (“too much cheesy 70s music”) and sees them on the nightstand in plain view. Busted all the same.
It’s a weird bit of semantic articulation that any second year law student should be able to poke logical holes in (I mean, Joe Biden is presumably no great legal theorist— 76th in his class of 85 at University of Syracuse College of Law—and he makes a valid counterargument) and yet this is his line of reasoning it in front of the Senate Judiciary Committee. You can see it in the clip linked above starting at about 9:00.
“…the smartest lawyer in the whole country at the time”? I’m not sure Robert Bork is the smartest guy in any random bar, much less a meeting of the National Bar Association.
Stranger
I could say that about anyone. It doesn’t make it true. It’s just a useless insult.
You have become so used to judges ‘interpreting’ the law, that it is impossible for you to know what the law is. It’s a trend you have been following over the decades and the result is that the general public can’t be sure what the law really is, because it’s up to the judges, when it goes to court. That was not what the founding fathers intended. They intended a judiciary that would apply the laws as written, and if people didn’t like it they could vote out the lawmakers.
It says so in the emanation from the penumbra.
Well, we seem him in the linked clip arguing that a law regarding is the use of contraception in Griswald v. Connecticut should not be struct for Constitutional reasons (specifically the long-recognized common law rights of marital privacy covered by the Ninth Amendment) because it is not, in his mind, enforceable even when presented with a legally plausible if unlikely scenario. These are not the workings of a well-lubricated judicial intellect.
The whole meme of Robert Bork being “the smartest lawyer in the country” is widely repeated across the Internet (and presumably before that in conservative echo chambers) doesn’t seem to have much basis in fact beyond being endlessly repeated by boosters of the Federalist Society and certain personalities from the Hudson Institute. I’m not sure how such a claim could be objectively verified but even if true it would not by default guarantee Robert Bork or anyone else a seat on the Supreme Court. Bork got his hearing and his nomination was voted down, even by some Republicans. The more than three decades of cries of persecution by conservative advocates about how unfair this was would seem to be offset by tactics used to ensure that nominees they oppose don’t even get a hearing or are subject to rhetorical, sound-bite generating questions that they won’t even give a nominee time to answer.
Your insistence that people other than yourself just don’t understand the law or the application of Constitution in interpreting it is not persuasive, nor is your notions of “what the founding fathers intended” in terms of the judiciary, about which the Constitution has only brief declaratory statements regarding establishment and jurisdiction. Your notion that the Constitutionality of laws is an issue for the voters to “vote out the lawmakers”, on the other hand is in direct contravention of the purpose of enumerating and recognizing rights. It is certainly a legitimate and long-accepted responsibility of the Supreme Court to address questions of whether a law violates recognized personal freedoms (including those established in common law and accepted under the 9th Amendment) and reject laws that are found to be in conflict, which again, is a necessary function of the court in providing “checks and balances”. If your complaint is that the Supreme Court should only be ruling per the explicit letter of the Constitution then you’ll find offenses to that sensibility not going back mere decades but for a couple of centuries.
Stranger