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Comment by islanderfun | Hacker News Reader

Thinking out loud what I've thought for awhile.

The Supreme Court is an unelected political entity. Can this be fixed?

Didn't the Supreme Court just fix it by giving back this matter to states and their elected bodies ?

The Supreme Court didn't fix a damn thing. They made bodily autonomy subject to majority votes in state legislatures. Bodily autonomy is too important to be trusted to a majority vote, and Democrats failed the country miserably by not pushing to amend the Constitution to guarantee the rights of all Americans to ownership over their own bodies.

But amending the constitution is also done by majority vote. There's nothing about legislating at the federal level that makes it more likely to produce the right laws than at the state level. For example, there's the federal marijuana ban, sending countless non-violent drug users to prison.

What the fuck am I supposed to do, then? Carry an AR-15 every time I take my wife to the gynecologist?

No. That's a temporary status. They went out of their way to ensure that a nationwide abortion ban was still 'constitutional' but the nationwide right to one was not.

It's this way by design. In retrospect, we could have probably avoided the problem of the party in power trying to appoint 'their' judges by requiring a three-quarters majority in the Senate for appointments, but that didn't happen and never will.

> The Supreme Court is an unelected political entity. Can this be fixed?

Not really. The Senate and possibly House are expected to flip this fall. Our supreme court is taking a crack at reducing civil liberties and empowering conservative culture war positions. Precedent doesn't matter apparently. Only literal, conservative-justice interpretations of the constitution matter now. They're unqualified and unfit to run our nation's highest court. Radical and idealogical. Libertarians should be angry about this development of encroachment upon personal liberty and rights.

Nominations of the justice is done by people who have been elected though. According to you, does that make them less legitimate that if they were directly elected?

Not OP, but yes, adding additional layers of indirection makes an election/nomination less representative of the will of the people and thus "less legitimate" if you think legitimacy is based on representing the will of the people.

Of course the bigger problem according to this perspective is that there are many more layers of indirection before it even comes to the point where "your" elected representative nominates a judge. Some of them are more prone to "shaping" than others (e.g. via gerrymandering, disenfrachisement, voter suppression in all its forms) but the goal is generally to generate "favorable" election results regardless of what the people currently want.

It can be expanded or rotated without a constitutional amendment

You can't vote them out. There are only two ways to get rid of a Supreme Court judge: they retire or they die.

As I assume you aren't asking for ways to bring about either of those scenarios in ways that would incur legal issues, the more appropriate answer is that the government can appoint additional judges, which I think is called "packing". Right now the general consensus among Democrats seems to be that they don't want to do it because it would set a precedent Republicans could exploit, although history has shown that the Republicans don't require precedents to "play dirty" (e.g. while Obama refused to appoint a replacement judge because he was on his way out of his second term, Republicans happily appointed replacement judges when Trump was on his way out, not to mention that a significant number of Republicans supported the claim that Biden "stole the election" and Trump was the real winner).

If you're asking for a systemic long-term solution: no, it can't be fixed. The problem is that the Supreme Court lacks a clear mission statement and effectively acts to reinforce whichever party is in power at the time. The current SCOTUS majority leading to these decisions are "constitutional originalists". While you can argue that this is bad (or that this is still relying on interpretation and inferrences), it's impossible to say that this is wrong because it's an entirely valid interpretation of what the SCOTUS is for.

If you want to "fix" the SCOTUS because it's undemocratic, the problem is that it's only one of many aspects of the structure of US government that's undemocratic. The system was never meant to allow all people to equally influence the government. The system exists as much to curtail the power of the ruling politicians as to curtail the direct power of the people.

In other words SCOTUS isn't broken, you just don't like the political system itself. That's fine, but it requires a different framing in order to understand your goals and options.

> There are only two ways to get rid of a Supreme Court judge: they retire or they die.

They can be impeached by congress.

That would require them to have commited impeachable offenses. That bar seems to be extremely high considering the kind of conduct that doesn't seem to meet it.

> considering the kind of conduct that doesn't seem to meet it.

What are you talking about? I'm just pointing out that retirement and death are not the sole means of leaving the bench.

Apparently the wife of one of them was instrumental in attempting to overthrow our Republic. Is that not an impeachable offense? How is fucking treason not impeachable? I feel like I am losing my mind here, people.

Do you consider yourself liable for transgressions committed by your spouse?

Well, if we go back to 2000, said justice refused to recuse himself from ruling on the presidential election despite his wife being on the winning candidate's presidential campaign and transitional administration.

Seems a fair reason for the house to conduct an investigation to decide whether to send the matter to the senate for trial. Note none of that actually depends on Gore having won the vote, BTW.

I'd also like to know more about said justice's wife's role in the last election and if she involved her husband in any way to prepare for yet another Supreme Court intervention.

That's what it was when they came down with Roe originally, they are just returning to NOT being a legislative body and returning this decision to where it belongs.... the legislature.

Like it or not, ever since SCOTUS seized the unconstitutional power to overturn legislation, they have been a political entity, effectively legislating.

The difference with recent rulings is that they've abandoned any pretense of political independence or legitimacy.

If that is your position, you think that when the came down with Roe V Wade that WAS political independence and legitimacy and when overturn it its not? You can't have your cake and eat it too. It's not "illegitimate" when they don't "legislate" the way YOU want.

To be clear I am very moderate on abortion, I believe in the first trimester. But this is a states right issue and is a made up constitutional right.

Acknowledging that SCOTUS has always been political is not controversial. But until recently, they "legislated" in a fair way, in order to maintain the appearance of neutrality. I am specifically objecting that change away from the appearance of neutrality, starting circa 2000 in Bush v Gore.

its fair when you get your way, its unfair when you don't? You think "Roe v Wade" is the appearance of neutrality but Dobbs isn't? What is your standard of fair vs unfair?

Compromise.

Roe was that. Dobbs is not.

How is that a compromise... a controversial judgement you like is fair the one you don't isn't? That's not a standard.

Roe was clearly a compromise, which was unsatisfactory to nearly everyone at the time. I don't like Roe, but it's better than what we have now, which is nothing.

The great part about having your rights defined by legislature is that they can flip-flop every two years.

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