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Comment by rayiner | Hacker News Reader

> Therefore, I don’t think the source is someone who works at the Supreme Court, like a justice or a clerk. Justices understand that they don’t always end up in the majority. Clerks rely on these jobs as a calling card for the rest of their careers.

I think people underestimate how ideological the legal profession has become. On an increasing number of social issues, liberal lawyers (which is 90% of them) believe that their position is not only correct, but above debate and above the political and legal process. They begrudgingly accept that economic issues are subject to political debate, but moral issues are their exclusive domain, and politics and law are merely vehicles for imposing the moral views of highly educated professionals on the unwashed masses.

It doesn’t matter that Roe is so bad that numerous prominent liberal legal scholars are unable to defend its reasoning: https://www.washingtonexaminer.com/honest-pro-choicers-admit.... It must be the law of the land forever because it’s proponents are right and it’s opponents are “on the wrong side of history.” The arc of history bends towards justice, after all, and no institutional norm can override the march of progress.

A breach of trust like this is obviously a serious offense in a profession where keeping people’s confidences is fundamental to the job. But nonetheless there’s plenty of corporate law firms where these leakers will be feted, not condemned.

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One thing I noticed a very long time ago is that most people have not read their religious texts.

Roe v Wade being no different. People havent read it, they havent read Casey, they havent read this draft, and they havent read other Supreme Court decisions to know what normal looks like.

There is a wide degree of room for understanding it from a jurisdiction perspective, that have absolutely nothing to do with one of two “camps” or that camp’s correlation to one of two political leanings. From a legal review perspective, that compartmentalizes the emotional aspect away from any desired outcome, its easy to see inspiration for other outcomes and paths that Roe v Wade shutdown all discussion of. Some of those paths actually reach similar results.

I tried once or twice to point that out, but people were just shocked to hear the topic. so I am kind of thrilled that the opportunity to inspire is now forced upon everyone.

Are you suggesting that the average person should read Supreme Court decisions? And furthermore, are you implying that there are fundamental mistakes in the reasoning of Roe v Wade that emerged just now, 50 years later? Both seem unreasonable suggestions to me. It's akin to saying people should learn programming and read up on code/documentation if they want to have an opinion about Facebook.

> Are you suggesting that the average person should read Supreme Court decisions?

The country would be a better place if more people did.

Supreme court decisions are phenomenally well written. They usually begin with a clear, short, and accessible statement of the case and the relevant principle(s) before they summarize their decision. I find that they describe the issues surrounding the cases with great compassion for all the major arguments. And the dissents are usually equally informative.

Reading decisions has dramatically increased my appreciation of the nuance that goes into the decisions of the court and the operation of our country. Even for cases where I disagreed with the judgement with both before and after reading the decision, I gained a much greater perspective of alternative views. ... and a feeling that even when I strongly believe we're doing the wrong thing that we're trying so hard to do the right thing that eventually we'll get it right somehow.

For several years I read at least the beginning of every decision and dissent -- there aren't that many. I stopped only because I became crunched for time, and I'm thankful that your post reminded me of this gap from my life now that I have the time to pick up the practice again.

I also find the American Supreme Court decisions to be surprisingly accessible, while in my and other countries there is a lot of obfuscation. That said, I'm not sure I have the same feeling as you reading some of these decisions. Law and its interpretation is obviously a political matter and always will be. For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions, which happens to coincide with the recent introduction of three more conservative judges (one of them illegitimately). It's just futile, in my view, to treat any of these decisions as if the people involved were trying really hard to achieve objective truth, rather than impress their prejudices in the most articulate way.

> For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions

You’ve got it backwards. States have a general “police power” and have the right to pass laws to regulate the public health unless it infringes on a federal constitutional right. In 50 years there has never been a “great legal argument” where the right to have medical providers perform abortion appears in the Constitution. You’re welcome to look in there yourself and report back.

Many things don't appear in the Constitution. I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality. What happened there, and is happening with abortions, is that different ideological groups control the nomination to the Court and enshrine their ideology in law by proxy.

How do you account for the fact that the Court has not revised Roe v Wade in the last 50 years if it all rests on a correct interpretation of the Constitution, which has obviously not changed?

(different person)

The way time passes so long is that:

A) the court declines to hear cases over and over again unless it is forced to have “original jurisdiction” or decides not to decline to hear a case.

B) then when it decides to hear a case, we hope it rests on a solid constitutional ground because thats our only framework. there have only been a couple wild surprises from that court, and people amended the constitution in response just because the judges’ understanding was so wildly different than everyone’s, but the logic they pointed out was so clear that everyone agreed to overrule them by changing the constitution. Here, obviously people don't agree that much because, like you, they believe the means justify the end no matter how shaky the logic is. But for those willing to look, theyll see that court hadnt been doing its job as they didnt use the constitutional at all.

so its easy for us to see that the passage of time cannot be weighted as heavily as you are relying on. the marriage equality ones have very sound logic and have just as clear of a chronology as to why it wasnt ruled on before. your right in that it wasnt magic, but your wrong if you think it was ideological randomness.

> I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality.

Obergefell is a good contrast to Roe. Everyone acknowledges that the "rights" protected by the Constitution includes the rights inherited from the English tradition. (Liberals believe it encompasses an evolving set of rights based on changing moral standards, but they agree it includes at least those recognized in England in 1789.)

Marriage was one of those ancient rights. Even the Magna Carta includes rights relating to marriage. The question therefore wasn't whether there was a right to marriage, but whether same-sex relationships fell within the scope of the concept of "marriage."

On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.

If anything, "the science" has worked against Roe. The first real-time fetal ultrasound was conducted in 1971, just a couple of years before Roe was decided. Since then, ultrasounds have become routine, and 3D ultrasound technology allows us to see that a 15-week fetus isn't a "bundle of cells" but has a human face: https://youtu.be/sBmXNOG4s4A

The problem with this approach is that it is very malleable. Technology also changed immensely from when the Founders mentioned "arms", but I would think Conservatives would have a hard time accepting this particular "evolution". The examples you mention are also cherry-picked. We already knew fetuses had heartbeats and human faces many decades before ultrasounds existed. And a vast majority of scientists would agree that abortion is valid within some restrictions, so I don't believe that ascribing this change to the evolution of science does you any favors.

> On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.

Homosexual "marriages" have existed since Antiquity. And marriages do not necessarily have to lead to children, otherwise old people would be restricted from marrying. I think it is obvious that this decision is a result of the fast change in the zeitgeist rather than a careful evaluation of evidence, no matter what the Justices or their clerks deemed fit to write in their decisions.

> one of them illegitimately

From googling, I'm guessing you're referring to the fact that Barrett's appointment was a week ahead of the presidential election and months ahead of the end of trump's presidency.

Federal appointments down to the last minute of a presidency are lawful, and somewhat late appointments happen frequently. I find the suggestion otherwise in this context particularly amusing, because the fantastic drama over some literally 11th hour appointments-- ones so late they were delivered after the end of the presidency-- is how the supreme court took the power to review laws for constitutionality in https://en.wikipedia.org/wiki/Marbury_v._Madison . Even lame-duck supreme court nominations used to be fairly common (even though supreme court nominations are not that common themselves) -- that they aren't common more recently is because an unplanned vacancy is far more rare.

It's true that Obama failed to make a nomination at the end of his term, but the view that he couldn't or that it would have been improper is just not factually supported by the law or the history of the country, including the history of supreme court nominations. Instead there is a clear political explanation: Given the composition of the senate and the weakness of an outgoing president, Obama would have only been able to get through a compromise nomination. There was high confidence that Hillary would win and that the dems would have greater senate influence, allowing a more politically extreme nominee if it was left to her term. This was a grave political error, one I suspect we'll be suffering from for years to come. (The fact that we had a number of unplanned vacancies of late are also political errors, at least to the extent that you consider the justices political actors.)

I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution. The fact that some politicians and pundits can't restrain themselves doesn't excuse the rest of us.

> you reading some of these decisions [...] to treat any of these decision

It's a big step from some to any. No person or process is infallible.

Yes, I was referring to how the nomination was stolen from Obama. The nominee they had in mind was in fact moderate, and in the past Congress had never wielded its power to block a nomination because it was done in the last year of a presidency. The fact that the Republicans pushed their own nomination at the last minute was just adding insult to injury. I think we have to be clear about what is legal and what is legitimate here. It is legal for the Democrats to pack the Court, and there is even precedent for that. They also have congressional majorities that in theory allow for that. However, it would be illegitimate to do so.

> I find it unfair to the point of outright incivility though to escalate a debate about the fairness of it the level of calling the appointment _illegitimate_, and is disrespectful to a fine and honorable institution.

A fine and honorable institution which has upheld slavery, segregation, imprisonment camps, and the list goes on. The SCOTUS is not above criticism, and change can only occur if we treat them for what they are, servants of the people.

>And furthermore, are you implying that there are fundamental mistakes in the reasoning of Roe v Wade that emerged just now, 50 years later?

They didn't emerge just now, they were pointed out in scholarly discussions of the case immediately after it was handed down, and throughout the intervening 50 years. It was even criticized by pro-abortion people, they wanted something more soundly reasoned.

I would imagine that there is criticism for every decision the Court has ever made. However, this one has been challenged numerous times over these 50 years and stayed in place. Either we believe that law is a purely technical matter and the Court has failed at that job for 50 years, or we believe that politics are far more important and the technical arguments simply follow from that. I find it absurd to believe that you can treat law as some sort of math proof.

Yes, every decision has its share of criticism. Roe is unusual in that it rested on such a remarkably flimsy basis (part of which was rejected in Casey).

It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever?

And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.

> It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever?

Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us.

Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.

(Different person)

The Supreme Court and other appeals courts typically are purely technical, across all political leanings and makeups.

On this topic, the Supreme Court reverted to a purely technical view, auditing those two prior cases on their technical merits because they are outliers in being untechnical. They returned it to the states, not taking any extreme approach at all. The extreme options would be: invalidate all state laws that destroy fetuses, prohibit Congress from having any ability to review. Nope, nothing like that was done because overturning roe v wade was never as political as suggested with regard to a child bearer’s body, they simply returned it to the states, and there has always been an absence of a superseding law from Congress, which is Congress’ fault for never even trying

Why did they wait 50 years to correct this obvious outlier? And why did several of the judges lie to Congress when they said they would not change Roe? One would think they could publicly announce their views if they were purely technical.

To be clear, even liberal scholars have recognized the infirmity of Roe as a legal decision for decades: https://www.washingtonexaminer.com/tim-carney-defense-of-abo...

> "One of the most curious things about Roe," wrote liberal Harvard Law professor Laurence Tribe "is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

> Alan Dershowitz, another legendary liberal Harvard Law professor, called Roe "judicial activism" lacking "clear governing constitutional principles."

> There are plenty more like this. Pro-choice Yale and Harvard Law professor John Hart Ely wrote that Roe "is not constitutional law and gives almost no sense of an obligation to try to be."

> Why did they wait 50 years to correct this obvious outlier?

Because once a precedent has been set, the Supreme Court isn't obliged to revisit it, even if everyone comes to believe the decision is wrong. Whereas the merits of the original decision are quite technical, whether to overrule precedent or not is highly discretionary. It considers factors like whether the original decision failed to settle the underlying controversy, whether it creates a rule that is hard to apply in practice, etc. See: https://www.law.cornell.edu/wex/stare_decisis

It's this discretionary aspect that made Roe a sitting duck. Liberals obviously had no reason to overrule Roe even if they, like Justice Ginsburg, believed the decision was flawed. And for a long time, Republicans appointed social liberals to the Court who were happy to kick the can down the road because they were worried about the political ramifications.

Note that the politics doesn't matter for whether the decision is correct or not in the first place, but it's an entirely reasonable basis for deciding whether or not to go to the trouble of overruling an incorrect precedent.

> And why did several of the judges lie to Congress when they said they would not change Roe?

They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned.

> They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned.

You are right about this point, upon further reading I see that I based my question on social media bullshit that turned out to be biased. I agree with your distinction.

Regarding the rest, I think you still don't quite grasp my point. I understand there can be a technical way of looking at these decisions. I can also concede that Roe is particularly hated by most scholars. But if we both agree that politics is why these technical aspects were overlooked for 50 years, it seems absolutely pointless to discuss this issue from any other standpoint. Political interference is why this decision was made in the first place, because as another user stated, it fit into the more libertarian ideology of the Court at that time. And politics is why it's getting struck down, technical aspects notwithstanding. You can of course disagree, as I think you do, but from my perspective the political aspect is much more interesting and a more powerful predictor than anything else.

As an additional example, 110 years ago that same court ruled that “motion pictures” were not subject to 1st amendment protections. punting that to the states and straight up censorship boards for half the century.

a reality not revisited until the 1950s, where the supreme court bought it back under the federal domain, overruling itself because “obviously this has 1st amendment protections” and creating the “free speech and expression” reality that seems profoundly American, but really hasnt been for long.

you can have an opinion, but you need to incorporate what the court actually says and their logic behind. Just because a ruling is convenient for you or your causes (multiple times) doesnt mean its on solid ground. on this specific topic, its important to repeat over and over again that the federal government and even its supreme court could have reached the same outcome of privileging the pregnant person’s choice, but yes, that outcome would need to be closer to a math proof if from that court factoring in very different variables.

I get that its comfortable (or at least familiar) to view that the means justify the ends, where any authority using any rationale can extend rights that you like. I get that its scary that rights are so flimsy and people dont trust their states and that they will be immediately denied services they expected to be available. None of that lets the incorrect authority do its job wrong.

Yes, regarding fundamental mistakes, absolutely.

The reasoning didnt emerge just now, people just didnt want to talk about anything more nuanced than being “pro-life” or “prochoice” and “dont say the a-word”.

If you read the case you’ll realize “hold up, what? I’ve been emotionally led my whole life based on this steamy pile of shaky logic?”

You’ll realize that the same outcome could have been created with more durable consensus. Durable meaning acceptable, less divisive, not based on time.

But now, a major roadblock to evaluating things this way has crumbled.

The primary issues are:

- How the multiple unrelated case(s) got to the Supreme Court and were consolidated for Roe v Wade

- How the Supreme Court acted as a super legislature creating frameworks and edicts (it does this sometimes but they are guidelines, prongs for likelihood of compliance. In this case they were completely uncircumventable rights and restrictions, the area of Congress), instead of finding a part of the constitution to support it. Its out of character and relies on the difficulty of overruling the Supreme Court.

- How Congress has had 50 years or more to do or even just try anything on this topic, but didnt. (Risky for politicians doesnt mean the court can do their job)

- The next time the topic was revisited in Casey, the court was relying on the concept of Roe being precedent while then altering that precedent for a modified framework anyway. (The new draft uses that logic to dismantle Casey before dismantling Roe. And it doesnt take an opposite extreme view, it just gets the federal government out of it and returns it to state regulation. If Congress had opined at all, ever, it would have just returned it to Congress’ national laws, but since it never has then there is nothing to supersede state regulation.)

Just to add on to the sibling comment: absolutely yes, they should. SCOTUS opinions are written to be read by educated laymen. It is nothing like reading code - the whole point of the institution is that it's the supreme court of a democratic, self-governed people! The law is supposed to be understood. Justices are experts because of their comprehensive knowledge of case law and precedent and their ability to apply it to a given case, not because the method is beyond the grasp of normal people.

You might also be surprised at how, compared to the code analogy, informal and even non-legalistic many opinions are. There's a lot of opinions that read largely like well-informed Internet comments for long stretches until legal citations come back in.

Roe has consistently been criticized by even liberal legal scholars: https://www.washingtonexaminer.com/restoring-america/restori...

> Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely.

> Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000. “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Roe is the Lochner of liberal jurisprudence. (https://en.wikipedia.org/wiki/Lochner_v._New_York). It makes sense only under an extrapolation of the broadly libertarian small-government sentiment behind the Constitution that the left doesn’t believe in. (It was penned by a Nixon appointee, and was reaffirmed in Casey by five Republican appointees.)

>that most people have not read their religious texts.

What do you think qualifies you to judge if most Hindus have not read the Rig Veda, most sikhs have not read the Adi Granth, most Muslims have not read the Quran, most jews have not read the Torah, etc for every religion?

I find people take the experience they have with one particular religion around them, and then paint all religious people the same way. It's very strange because it makes no sense, yet even in places with very well read people like HN you see it all the time. I certainly agree there is a lot of polarization in the world right now

ok. what did you think about the rest of the post besides the topic sentence. have you read supreme court cases that people elevate to the importance of religious texts? if so, what did you think of them, if not have you weighed in on these topics before because that was the actual point.

Sorry, I agree with the rest of it. That part is just a pet peeve of mine so it distracted me-- but actually I do agree. I myself haven't read any detailed judgements by the Supreme Court, very few people do.

I think people judge the outcome of these very consequential lethal decisions morally rather than based on their legal merits. In fact I doubt most people are equipped to judge cases on their lethal merits. At the end of the day if a badly supported law is passed that many people agree with, they'll go along with it. If a well supported law that people disagree with is passed, they'll complain until someone finds a problem with it no matter how minor or abstract. Many people don't understand that legality=/=morality, or they desperately want them to be the same

FWIW, I would encourage you to read the leaked text.

I have read a few opinions of the Supreme Court over the years. I have no specific background in law, and I am not even a native English speaker, but I have found them uniformly accessible to a layman. They use a dozen or so boilerplate latin expressions that you need to get used to, but they are otherwise fairly readable.

The leaked text by Mr. Alito is a masterpiece of English prose and scholarship, in my opinion. In 90 pages or so, it explains the history of the issue and the legal theories that common-law judges have advanced since the 14th century. It analyzes the arguments in favor and against Roe and Wade. It also summarizes the legal handling of the issue in various US states.

Irrespective of whether or not you agree with the conclusion, these opinions are one of the few pieces of contemporary literature worth reading. I myself am looking forward to the final form of this text (should the Court decide to uphold it) as well as all the dissenting opinions, which I expect to be of similarly high caliber.

I actually got a chuckle out of the 30 pages of statutes from places that are now US states and territories from 1850 till 1973.

Thought it was odd and hurried to include Hawaii's 1850 statute. Since it was neither a territory or state then. Wish I knew a news source or discussion board that could find this stuff moderately entertaining, instead of looking for angles to discredit the entire institution.

> liberal lawyers (which is 90% of them)

What is the basis for this claim?

> believe that their position is not only correct but above debate and above the political and legal process

You seem to be accusing everyone who disagrees with you of malice and abandonment of all principles - more or less evil. I would counter that this kind of argument is only ever made in bad faith in an attempt to demonize those who don't agree with you.

> politics and law are merely vehicles for imposing the moral views of highly educated professionals on the unwashed masses.

And one could likewise say that much of conservative thought is an attempt to force people to adhere to certain religious values using state coercion. But that would just be an opinion, not a fact.

What is fact is that many (possibly most?) conservative policies and doctrines do not enjoy majority support in the United States, yet are being rammed down our throats regardless because those policies are a) supported by those in power and b) convenient wedge issues or rallying cries for a small minority of the voting base - a minority that happens to be highly motivated.

Even the current composition of the court was a blatant power grab to deny Obama's constitutional right to appoint a justice with a made-up rule that it was "too close" to an election. Then immediately discarding that so-called rule when Trump was in the same position. In that sense the current conservative majority is illegitimate. Regardless of how you think any specific SCOTUS decision should go I hope you'd agree that a court that the majority of Americans believe to be illegitimately stacked is not a good thing for the stability of our separation of powers.

For that matter the overall tilt toward conservatives in House representation thanks to gerrymandering along with over-representation of conservative thought in the Senate due to the 2-senators-per-state rule undermines the legitimacy of Congress and the entire government. You can only get away with preventing the majority from being able to enact any significant policies for so long before a representative government collapses. Granted that might take tens or hundreds of years but in the long term it erodes the very foundation of our society. I find that very concerning personally but some people would rather win at any cost (witness Trump's recent loss and the fact that some conservatives attempted to sacrifice free & fair elections for a single win of a single presidential term. How cheaply they were willing to sell out!)

This is a little tangential but it’s kind of funny that both you and the person you’re disagreeing with, and the camps you represent, agree that SCOTUS judges are political. In fact, almost everyone seems to agree with that (myself included) except notably for the judges themselves, who consistently insist their jobs are apolitical. Roberts in particular has embarked on the fool’s errand of convincing the public of that.

It kind of reminds me of this nonsense that universities offering liberal arts degrees still pay lip service to: that everyone is there for education for its own sake, oh no, it’s not a giant machine that gates public employment, it’s there for knowledge!

Uh huh.

SCOTUS is ideological, not political. The ideologies often line up with politics: the Constitution is a 244 year old document with a heavy emphasis on economic liberty and protection of personal and property rights. Interpreting the Constitution according to its text and original intent will naturally lead to conservative outcomes.

Likewise, viewing the Constitution as an evolving document that gives great discretion to judges to fashion rules for a changing world naturally favors liberal outcomes, because lawyers and judges are overwhelmingly liberal, even the republicans. (It was, after all, a majority Republican Court that wrote Roe in the first place.)

Indeed, overruling Roe is a good example of the distinction between ideology and partisanship. 1/3 of republicans don’t agree with their party on abortion: https://www.pewresearch.org/fact-tank/2020/06/18/three-in-te.... (And about 29% of Democrats don’t.)

Republicans are heavily favored in the upcoming 2022 elections. Biden’s approval rating among republicans is 7%. Why would a savvy partisan blow up an issue that fractures the GOP and draws attention away from how unified they are in hating Biden? The GOP has the rural, churchgoing mom vote locked up. Inflation is what they want to be talking about right now to win back suburban moms, not abortion.

Not political? They are following the dictionary definition of political: "relating to the ideas or strategies of a particular party or group in politics."

Nearly every decision of Bush/Trump appointed judges is directly in line with the Republican platform: anti-abortion, pro Christian supremacy, and pro-corporate.

As to why are they trying to ram this decision through? The point of politics is to gain power and then assert your political leanings as law. Tearing down Roe is the final goal of a long-term Republican power surge: first whinging about activist judges in the 90s, then pushing identity politics in their base, then gerrymandering many states to death to control state legislatures, stonewalling the Supreme Court to push it into it's current radically partisan state, and finally asserting the Republican platform into law.

The ideologies often line up with politics: the Constitution is a 244 year old document with a heavy emphasis on economic liberty and protection of personal and property rights. Interpreting the Constitution according to its text and original intent will naturally lead to conservative outcomes.

I think that interpreting the Constitution by its literal text yields interpretations different from interpreting according to original intent. And that the literal text reading does not align all that closely with mainstream Republican or Democratic positions.

Consider the text of the First Amendment, for example.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

No abridgment of freedom of speech or of the press. Pretty clear as text. Yet the Sedition Act of 1798 was never overturned as unconstitutional. Nor is there an exception in the plain text for "unless it's obscene" or "unless it's a lie" yet there are Federal laws limiting obscenity and fraud and other kinds of speech that were never struck down on First Amendment grounds. Some such laws were passed in the lifetime of the original framers of the constitution and others are in force today. Some state level blasphemy laws remained in place until the 20th century [1].

As I see it, either the literal text reading of the Second Amendment protects private ownership of machine guns just like it does bolt action rifles and revolvers, or handguns are no more protected than machine guns, whose private ownership was limited by the National Firearms Act of 1934 and then outlawed for all but affluent collectors by the Firearm Owners Protection Act of 1986.

A maximal-individual-liberty interpretation of the literal text of the First and Second Amendments produces a United States in which there are no Federal laws against publishing pornographic videos of minors, nor against private ownership of anti-aircraft missiles. (Among other startling developments.) That's closer to a fantasy of a certain strain of libertarian than anything aligned with mainstream political factions in the United States, either contemporaneously or at any time since independence. The original framers were (at least mostly) not libertarian libertines, devoid of communitarian feeling, while the literal text gestures toward an uncompromising individual liberty that would be equally outside the Overton window in 1792 or in 2022.

[1] Though it's fair to consider that, pre-Civil War, states had more latitude to pass laws that the Federal government was Constitutionally forbidden to pass.

Go look at political donations by employees from your random law firm. 90% is a conservative number.

I had a lot of convo with that poster in another thread. I would suggest not wasting your time by engaging with him, and I say this as someone who agrees with him in certain respects.

> > liberal lawyers (which is 90% of them) > What is the basis for this claim?

https://www.washingtonexaminer.com/opinion/washington-secret...

> You seem to be accusing everyone who disagrees with you of malice and abandonment of all principles - more or less evil.

Not at all. I think they have the best of intentions. But their principles are different than the principles of our parents’ generation of liberals.

> And one could likewise say that much of conservative thought is an attempt to force people to adhere to certain religious values using state coercion. But that would just be an opinion, not a fact.

That’s a good comparison actually. It’s reminiscent of the old religious right. The difference is that these new liberals are ascendant, while the religious right is in the decline, being supplanted by the populist right.

> What is fact is that many (possibly most?) conservative policies and doctrines do not enjoy majority support in the United States

The irony is that liberals have consistently used the Supreme Court to overturn the conservative policies that do enjoy popular support.

Roe, of course, overturned laws that had the support of the public. To this day, Roe draws a line—abortion until viability—that the public rejects: https://apnews.com/article/only-on-ap-us-supreme-court-abort...

Conservative policies are popular on many other issues. As of 2013, a strong majority of Americans still opposes the Supreme Court’s ban on school prayer: https://www.pewresearch.org/fact-tank/2013/06/13/south-carol...

If the Supreme Court bans racial preferences in the Harvard case, liberals will attack the Justices as racist for adopting a position most Black and Hispanic people agree with: https://www.pewresearch.org/fact-tank/2019/02/25/most-americ...

It’s “heads I win, tails you lose.” Liberals invoke the “will of the people” when it comes to Obamacare, but insist on edicts from ivory tower elites to override the popular will when it comes to unpopular liberal efforts at social engineering.

> convenient wedge issues or rallying cries for a small minority of the voting base - a minority that happens to be highly motivated.

When folks call abortion a “wedge issue” what they mean is that liberals feel like that they own that issue so completely it’s not even up for debate. Those issues are a therefore a distraction from the ones that they are willing to subject to the political process. Thus the intense outrage over this draft opinion, while extended ETC benefits passed quietly into the night.

Imposing the social mores of (mostly white) educated liberals on the population is the #1 priority of the Democratic Party. That’s why abortion is a litmus test—rather than raising taxes on the upper middle class—in a party where 1/3 of the actual voters identify as “pro life.” That’s why Democrats are pissing away historic opportunities created by unforced errors by the GOP, and alienating Hispanic voters they depend on, by doing stuff like trying to convince parents to let them talk about sexuality to young kids. Because that’s the party’s actual priority.

Your point about minorities suppressing the majority is ironic. Leaving aside that the effect you’re talking about is small—look at the Congressional popular vote, where Republicans have won an outright majority half the time since 2000–you’re correct. It is a problem when minorities overrule majorities. That’s why decades of liberal Supreme Court rulings overruling the public on issue after issue have been tremendously damaging to our political process.

After decades of beating down the public and doing stuff like forcing small towns to allow strip clubs to operate in the name of free speech, complaining about the Supreme Court “ignoring the popular will” is the height of irony.

I have to say that while I disagree with your overall point - for example, I think the paralysis of the political system is derived from oligarchic economic control of the political process, rather than the distraction created by this culture war bullshit -, I think you made perfectly reasonable arguments, and should not be downvoted simply because they are unpalatable. In particular, the argument that abortion is popular and therefore should be legal does contradict several things that Democrats would like to keep illegal, despite being popular, as you illustrate with prayers in schools.

> Many of the nation’s largest and most influential law firms donated more than 90% to Democrats and President Joe Biden in the last election cycle, confirming their position as one of the most liberal professions in the country.

That does not say what you think it does.

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