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Comment by rayiner | Hacker News Reader

If that's your argument, then surely the proper approach is to criticize the Court for those instances where their logic isn't consistent, instead of when the logic is consistent. For example, Thomas vigorously dissented in Gonzales v. Raich, where Scalia voted to uphold federal marijuana restrictions as a proper exercise of the Commerce power.

There is nothing wrong with judges having an "agenda" as long as that agenda rests on legal doctrine and philosophy, and not "outcomes."

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It's interesting that you are bringing the conversation back to consistency when I explicitly said my POV is that consistency (here) is a red herring.

How can consistency possibly be a "red herring" when talking about judicial decisions?

Suppose I’m a pro lifer for reasons I’m ashamed of. The supreme court strikes down roe v wade, and I’m secretly pleased, but can’t admit it. Wouldn’t it be nice to defend the decision by arguing about its consistency?

It’s a red herring in these discussions because it’s not the true reason people support it.

I can't parse what this means. Is the idea that we are to assume malice of intent to the reasons the Court does things, and that "consistency" is not a legitimate reason to argue about it? How do you know what the "true" reason is?

You don't know anyone's true reason for anything. Your specific example of abortion is a ridiculously complex topic (hence the total disagreement in society), so simplifying it to basically "the other side is secretly lying" seems unfair and uncharitable.

So I’m a card carrying Fed Soc member. While I’m uncomfortable with legalized second trimester abortion (because at that point the fetus looks like a baby) I don’t think abortion should be banned altogether. But I still think Roe was wrongly decided and properly overturned. I’d estimate that half or more of Fed Soc supports some degree of legalized abortion, but virtually all think Roe was wrongly decided. The idea that it’s all pretext is laughable.

By the way, I think liberals also believe what they say. It’s just that they believe that judges should be cultured elites sitting on a throne telling the rabble how to structure their society.

I think the argument is that there are multiple judicial philosophies that can be chosen from, and you can generally predict what outcomes will result from following a philosophy consistently over time, so a justice chooses the philosophy that results in the outcomes they want. And therefore they could have chosen their philosophy for partisan outcome-based reasons, so consistently following it is no defense to accusations of partisanship.

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