On the other hand, most reporting on SCOTUS rulings is terrible. It focusses on the implications of the ruling and almost to zero degree on its legal logic. That makes the court feel like a political body.
Is it not? From the method that I've seen legal logic applied, it feels heavily political. What counts as a loophole that will be struck down and what counts as a loophole that will be allowed often doesn't have any core logical justification that isn't political. There are a bunch of rules, but even more exceptions. There is a bunch of consistency, but not on the level that you find in actual logic, math, or computational science (like with Turing machines). This has long led me to view it like a bunch of political entities playing pretend at being logical. Pretty decent pretend, better than most other systems, but when compared to truly logical systems, still clearly pretend.
You can also see this at macro scale application of the law. For example look at how the law is applied when you break it down by class, race, and sex. It clearly is done so unfairly, which leads on to conclude that either the unfairness is logical, or that the system isn't logical at the core.
Jury nullification is another example where it breaks down, as to say it doesn't exist when the things that logically give rise to it must exist is a contradiction.
SCOTUS is not apolitical. (No human institution is.) That doesn't make it a political body.
I've found helpful to read the official opinion of decisions I disagree with. Start to finish, including the dissent. With respect to modern rulings, I have yet to walk away finding the arguments abysmal. In almost every case, I disagree with the law, not the court.
When I disagree, it's because the law--as you say--had holes. The court fills these in, by necessity. On this, it's fair to find disagreement. But the degree to which these holes are filled is usually impressively restrained. There are very few modern case where, given the facts and circumstances of the case or controversy, and within the context of the surrounding law, I found the interpolation obscene.
> not on the level that you find in actual logic, math, or computational science
Courts aren't deterministic. That doesn't make them a political body.
It's an open debate as to whether we want the law to parse like code. I don't. As long as lawmaking is under human control, the law is comprehensible to humans and humans remain free agents, the law--and thus courts--will have a degree of unpredictability to them.
My impressions from the podcasts of actual law professors and lawyers is that there are various interpretations of the law that trend towards liberal or conservative values, and the strategic dressing of how the law is read is itself a political strategy to legitimize a political reasoning as an apolitical law analysis.
For example, the choice of a judge to read only the text and law as it is written (textualism) without caring about the general context as to why it exists or the effects of the law in modern day can often be used to ignore the actual injustice occurring as a result of a law that doesn't actually produce just outcomes even when the supposed intention is such. It's arguably pedantry.
But when the same purely text-based reading is applied for progressive arguments, as in the hearings for sex-based discrimination, the conservative justices have abruptly shifted their questions to be concerned about the societal effects (bathrooms) or the original intention of the law (originalism). This sort of flip-flopping of evaluation strategies is often used as a basis of argument that while there are multiple reading frameworks of law, the actual frameworks used are often for political/personal purposes and judges are proposed based off their conservative or liberal bent in analysis.
To illustrate: nearly everyone varies their frameworks for justification, even when the situation is clearly apolitical.
e.g. Even a mother raising a child will use these justifications frameworks interchangeably as needed. I can hear my mother now:
* "Why? Because I said so" (textualism)
* "Be nice and share with your sister" (societal effects)
* "You know what I meant" (originalism)
But political motivation does not necessarily follow the transitive property, which is part of the reason why a lifetime appointment is a good idea.
No, it doesn't necessarily, but there is evidence that it does in practice. That is my point.
That's my point.
I suppose if we wanted to figure this out, we could just ask the Federalist Society what they think.
After appointment, there is nothing to be motivated for. They hold the highest possible position in their career path and political support or approval no longer bears any utility.
Someone can be partisan and not have an ideological preference. (eg. party employees, pandering politicians)
Someone can have an ideological preference and not be partisan. (eg. religious leaders, philosophers)
If you want to demonstrate that SCOTUS members are partisan, you need demonstrate they voted for the a party's preferences instead of their own ideological preference. If you are instead demonstrating that they voted in line with their own ideological preference, you are simply pointing out that humans have belief systems.
As long as courts remain within reasonable bounds of "filling in the holes", that is good enough. And we can think about improving the process.
It is even worse when we talk about what science filters down to the average voter, as even in cases where the scientists may be fair in their criticism, the public eye is still selective and given unequal weight to certain criticisms.
My memory is a bit poor on the matter, and my knowledge limited, but I think I've even read of people disagreeing with fundamental concepts in mathematics and attempting to see what happens when you do so. Does it result in a field of math that behaves the same? Does it make working certain problems easier and others harder?
And then you get the fun stuff like this.
https://en.wikipedia.org/wiki/Intuitionism
https://en.wikipedia.org/wiki/Law_of_excluded_middle#Critici...
But alas, I have too little education to be more than a confused spectator of such debates.
What is surprising is that what remains to be studied is vast and beautiful and highly effective when borrowed by other disciplines.
Windsor?
I read all the opinions (the majority and all three dissents) and they were all terrible law.
The majority ends up with a convoluted rationale for why the Court should even be here, since Windsor already got what she claimed relief for. A court's purpose is to serve justice, but very clearly the Supreme Court doesn't need to even take Windsor in service of justice, instead it serves a political end.
The dissents are no better. Scalia for example rightly points out what the majority are up to, and, sensing which way the wind is blowing but apparently not inclined to learn anything from that - he guesses this will be back, as it indeed was in Obergefell, but is apparently oblivious that he's doing the same exact thing he accuses them of.
There's a decision by Judge Posner on related topics which is much better law, Baskin v Bogan. Posner may or may not have an opinion about whether gay marriage is a good idea, we don't learn one way or another. But he is clear that it isn't logically consistent to say your state only marries people for the purpose of raising kids, then also have a law which says people who biologically cannot, or genetically should not have kids may get married. As a result the prohibitions on gay marriage fail. That's what I want to see in my legal decisions.
I personally find my strongest disagreements are in cases the court refuses to hear to even give a ruling.
>will have a degree of unpredictability to them.
But that also means a degree of bias and even bigotry. And the large scale bias is strong enough right now that given the option of as it is or parsing like code, I would choose the latter.
If courts were predictable, we wouldn't need them at all. (this is an agreement with parent's argument)
Courts are not supposed to be political. To the extent that they are, they are dysfunctional. Unfortunately, there are a lot of dysfunctional courtrooms today, including the Supreme Court—or rather, more accurately, there are a lot of dysfunctional justices who bring politics into their jurisprudence.
So I agree with OP—anything that adds political overtones to courtrooms probably isn’t a good idea. Let’s not encourage further jurisprudential dysfunction.
However like dantheman said I can see this as a huge negative incentive for the attorneys trying to get a little more air time or exposure.
I don't remember where I read this, but it sounded plausible, given we've never seen this happen before.
From (https://www.supremecourt.gov/about/faq_general.aspx).
It would be pretty odd and a weird special casing compared to the norm if the president and congress were unable to nominate a given judge to a higher position within the overall US federal court system, solely because they were on SCOTUS.
Here's a recent example, a petition by the Attorney General and the FCC against AAPC for robocalling, that is pending argument:
https://www.oyez.org/cases/2019/19-631
Here's one, a petition against the Attorney General seeking relief from removal after committing three felonies, that's been argued and decided:
Can a lawfully admitted permanent resident who is not seeking admission to the United States be “render[ed] . . . inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1)?
Other Federal Courts have gone to similar methods of operation with Judges asking questions in order of seniority. This format also benefits those following others because you have more time to order your thoughts.
Another view on the Supreme Court using Streaming
https://reason.com/2020/05/04/the-supreme-courts-surreal-sti...
Although foreign to many in our field, arguably the most important work a judge does (besides the obvious) is communicate effectively and clearly. I trust them to be professional.
Isn't it already so though? Since the judges are appointed by the sitting president (in case of a vacancy of course).
Pretending that the supreme court and the entire state and federal court system isn't part of the party system despite all judges at all levels being public figures cheifly identified by their unoffical or offical party affiliation. There literately isn't a single issue of political importance that isn't actively subjected to review and amendment by America's highest court.
https://theintercept.com/2019/06/04/ginni-thomas-trump-conse...
> Conservative activist Virginia “Ginni” Thomas is launching yet another project to wage war on multiple fronts of America’s most heated cultural and political debates. This time, however, her plan will include a project to “protect President Trump” using at least two new campaign-related political entities, according to a presentation obtained by The Intercept and Documented.
> Thomas, the wife of Supreme Court Justice Clarence Thomas, unveiled the new venture in a closed meeting of GOP lawmakers, donors, and Christian-right leaders last month, seeming to make reference to the movement disarray and electoral losses suffered by conservatives in the Trump era — and the gains made by left-wing groups and politicians.
https://www.politico.com/story/2011/02/justice-thomass-wife-...
> Now, Virginia “Ginni” Thomas, wife of Justice Clarence Thomas, has recast herself yet again, this time as the head of a firm, Liberty Consulting, which boasts on its website using her “experience and connections” to help clients “with “governmental affairs efforts” and political donation strategies.
https://www.newyorker.com/news/news-desk/scalias-contradicto...
Isn't the whole problem determining what is "actually written"? It seems kinda silly to me to argue "well obviously they meant X" when there's clearly debate on the subject.
The justices are socially aware but there is a big gap between them and the professional politicians. They take substantially less advantage of opportunities to foist their human foibles on others. They are politicians, but of the nose-out-of-joint variety where their peers tend to be limbs-strewn-over-an-area types. The difference is large enough that they don't really merit the same label.
It'd be nice if the US kept them from getting more politically active. The best Supreme Court is a quiet and sleepy one.
Go read anything about Chief Justice Roberts history as a conservative activist and see if this really holds true.
What do you believe the Chief Justice should have done but didn't in either or both trials?
Trump engaged in a shakedown of another country for personal gain (including blocking money that Congress had appropriated) and then engaged in a massive coverup. I'd consider that to be a collection of crimes.
Roberts did not allow witnesses to be called, and did not allow the hearings to be recorded. The GOP refused to participate in the trial at all and declared before it started that they would not even consider a guilty vote.
There's plenty to criticize about the Trump trial, but I don't see how you can pin it on Roberts. It was the Senate that voted to not call witnesses, not Roberts deciding that. Since the Senate has "the sole power to try all impeachments" (US Const. Art. I, § 3, cl. 6), it's not even clear Roberts had the ability to override that decision. I'm not sure what you're talking about with things not being recorded. You can find the entire trial on YouTube.
We could dissect the flaws (which I would enjoy in the proper forum with time to carve out for it), but as an independent (but "progressive") voter I found both trials to be shams.
My original comment was snarky (but true), but in the end I'm not interested in arguing for the sake of "my team" or "being right", but to pursue truth wherever it may lead me.