I can see this applying at a trial court level but this seems a bit black and white at the supreme court level.
This seems to imply that in any case before the supreme court that results in a split decision there is one side that applied the law and the other side (whether the majority or minority) didn’t and were merely spinning for a desired outcome. (I suppose you could also say neither side got it right too.)
While it may well be true that one side or the other was contorting the law to achieve a desired outcome in a given case I do not think you can say that in every case.
At the supreme court level their job is interpretation and as we well know from may arguments on this board interpretations are open to a lot of, well, interpretation. This is not to say any interpretation is as valid or thought out or supported as any other one but it remains that there is room for honest disagreement with both sides thinking the “law” is on their side.
Heck, there are different schools of thought on how the constitution should be interpreted and I know of no law or even unwritten rule that says it must be one way or another (e.g. original intent or living document).
Again it is of course possible for some decisions to be wholly without merit and a judge is imposing their will with little regard for legal reasoning no matter how well they try to cloak their decision with legalese (I think Scalia is a master at this).
I just do not think you can stymie debate here with a magic wand that decrees “what the law is” and that’s the end of it.
Excellent point. I think that hits the nail on the head, and answers the OP…
Never mind the liberal bias of reality. The Constitution[SIZE=“5”]*[/SIZE] has a liberal bias. It, and the democratic principles on which it is based, is designed to be all-inclusive. Everyone is supposed to be considered equal, to have an equal say and to have equal opportunities. The more that Republican policies favour and concentrate power in the elite and neglect and disenfranchise the masses, the farther away they get from the intent of the founding fathers, and the more they fall afoul of the Constitution.
In accordance with its intent, the Constitution actually was written with a centrist bias, but the center is so far to the left of American politics these days that it looks liberal.
All decisions have a “solid basis in law.” I vehemently disagree with today’s result, but I’m not going to say that the 5 in the majority were wide-eyed and goofy. Nor should anyone say that the minority 4 were voting in any way other than THEIR belief in what a solid basis in law was (Anyone want to say that Kennedy is a conservative whore?)
And no, although not every decision is a 5-4 with Kennedy as a swing vote, it seems like a hell of a lot of important ones are. And the left never has to worry that one of their 4 bolts to the other side. The GOP has picked 4 of 7 that we can’t be sure about.
It may be about time to cut the Founding Fathers loose on this issue. Their view of freedom and liberty was riddled with asterisks that have gradually fallen away because they served no purpose, i.e. equality obviously didn’t apply to women, to non-whites, and it’s hard to imagine a sufficiently generous view of the FFs that has them being okay with gay marriage.
As written, the U.S. Constitution is a somewhat idealistic document. It turns out Americans are just gradually starting to live up to those ideals.
One would think that, since conservative justices don’t follow the party line as often as liberal justices, they are more objective and actually follow the constitution as written instead of trying to twist the law to serve a political agenda.
In other words, contrary to popular belief around the 'dope, the conservative justices are the ones who are principled in their decisions.
For that matter, it’s talk without the slightest bit of evidence.
A summary that’s just as reasonable – in fact, more reasonable, given that the supposedly liberal justices don’t always vote with the left, would be that the reason for the seeming discrepancy is that GOP members expect “conservative” justices to vote with the party rather than with the Constitution, and are disappointed that they only have three reliable votes in that direction. Whereas Democrats don’t expect anything like that, and thus don’t howl in outrage whenever our justices put one party’s immediate political interests ahead of the law of the land.
Maybe that’s not the case. But it’s every bit as reasonable a view as the one you put forward. Moreso, given that (as the Arizona immigration bill demonstrated) we have few to no “safe votes” who will vote based on what’s politically advantageous.
I would argue that Democrats never get surprised by the behavior of liberal court nominees because they never nominate any liberals. Your premise seems to be that Dems are liberals and Repubs are conservatives but it’s not like that. The Democratic Party is the big tent party. Many of their elected officials that are socially liberal but not so much fiscally liberal. So they are mostly moderates (albeit always and not coincidentally of the pro-corporate variety and never socially conservative and anti-corporate) but there are conservatives as well. Democrats nominate moderately conservative judges. People who can be counted on to carry water for Big Business but also have concern for individuals and the law itself. Republicans try to nominate partisan hack right wing extremists. People who will consistently vote in favor of not just corporate profits but also right wing causes and the GOP itself on the thinnest of excuses. Justices seem to fail the GOP more often because so much more is asked of them.
Or at least I would argue that if I could find some evidence of the political orientation of justices compared to the general populace instead of just to each other. Since I can’t I’ll just offer this as unsupported opinion.
Take it with a grain of salt.
The founding fathers were products of their time, of course. No one today could expect them to consider things like gay rights, and even anti-slavery, in their world. If they had, they would have been opposed and derided unmercifully and the Constitution never would have gotten off the ground. But the core value of equality was there, and it’s been up to successive generations with changing social mores to expand and adapt it.
Well, some Americans have. A lot have been straying from them lately, and it’s good to see them get reminded once in a while of what the Constitution is really about.
There is a school of thought within the legal academy, as one moves farther toward the radical left and Critical Legal Theory, that Law in general is simply an extension of politics and existing power structures, rather than an independent or purportedly neutral set of principles. To the extent that some Justices are sympathetic to that line of thinking, it could cause them to be more comfortable looking harder for ways to conform their legal reasoning to their political views. This is thus a possible theoretical basis for greater ideological consistency on the left.
Empirically, though, I think we tend to focus on a few hot-button issues that skew consistently 5-4 and overlook the areas where ideological groupings break down on both sides, such as criminal law and procedure, tax, first amendment (outside of campaign finance), and some aspects of business law.
Bad example. I imagine he knows he’d get all sorts of flak for appointing a justice with no prior experience on the federal bench (your otherwise impeachable credentials notwithstanding ;)).
I thought about this for a while. I think the primary reason is small sample size; there just aren’t enough SC justices to say with any certainty whether their voting patterns tell us anything about the nomination process that produced them. I suspect that if you looked at the federal appeals circuits, you’d see a much more even distribution of “turncoats.”
Why in the world wouldn’t it mean that? Of course there is only one correct answer, and of course, ideally, that’s the one that should be chosen. the difficulty in life is knowing what the right choice is, not wondering whether there is a right choice at all.
I’ve skimmed the thread, so feel free to ignore this response if you wish, but there are a couple reasons. First, the main thing is the the GOP has swerved to the right to a shocking degree in the last few decades. Therefore justices that were in the mainstream of the GOP at the time of their nomination (O’Connor, Stevens, and Kennedy being the most obvious examples, but you even saw it sometimes with the previous Chief, for god’s sake) are now firmly on the left of the Court.
Second, the Court itself is a highly conservative institution now, so while it looks like Dem nominees are on the left, that’s just in reference to the absurd scale of the other justices they’re being compared with. Breyer isn’t particularly liberal at all, rather, he operates on a whole different axis of massive deference to the government, whether that’s in support of a expansionist reading of gov’t power (as in the ACA case) or an expansionist reading of government ability to restrict individual rights. (Although he has become more liberal over the years.) Ginsburg isn’t very liberal except on women’s issues, and is very pro-business.
In addition, Sotomayor and Kagan (maybe Alito) are still too new on the Court – the great examples of presidential surprise (Brennan, Blackmun, Souter, and on the other side Whizzer White) mostly took some time to carve out their own idealogical positions inconsonant with the presidents that had nominated them.
Finally, the perception is somewhat skewed by Souter who had been a state supreme court justice for several years but had basically no exposure to federal quetions of law at that time. Bush 41 didn’t want a bruising nomination battle like the one when Reagan nomninated Bork, so he picked someone whom no one knew anything about, and that lack of preparation bit him.