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Comment by gremlinsinc | Hacker News Reader

We've done nothing, and we're all out of options, confused pikachu face. Though, personally I think this leak probably was good as it at least got public discourse going around the subject even though the justices ultimately went against public sentiment for reasons.

I'm personally WAY more concerned about Justice Thomas and Ginny Thomas and their links to the insurrection attempt, and other undermining of democracy.

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It is not the duty of the Supreme Court to follow public sentiment.

Absolutely right! SCOTUS should continue to just call balls and strikes.

It’s the duty of the court to maintain the public’s trust in the institution: without that trust the law doesn’t matter very much. This court has not been doing that very well, as evidenced by sharp changes in the opinion polling. This leak, evidence that justices are sharing unpublished opinions with interested parties, and the current weak-tea investigation are only part of the problem. But they’re big problems.

The SCOTUS is not supposed to be swayed by public opinion. The only thing that is supposed to matter is the Constitution itself, and any amendments Congress has ratified along with case law, etc. ie. if you are upset by something SCOTUS didn't agree with you on - be mad at your Congresscritter - they are the only ones with the power to change the Constitution and law.

However, there has been a growing push among some of our population that whatever is deemed popular today should be declared constitutional. That's just not how our system works - by design and for good reason.

The founders went to great lengths to ensure a populism movement could not change our federal government on a whim.

Populism movements, often based on emotional arguments rather than reality, change too rapidly and easily to form a stable platform for a long-lived government.

The erosion of public trust in the institution that is the SCOTUS is based purely on populism movements of late. Without going into specifics - the particular issues that are said to be causing this alleged erosion of trust are simply not Constitutional issues. Yet, the people demand it be so regardless... kind of the hallmark of a modern populist movement.

> The erosion of public trust in the institution that is the SCOTUS is based purely on populism movements of late. Without going into specifics - the particular issues that are said to be causing this alleged erosion of trust are simply not Constitutional issues.

WDYM? Is the SCOTUS hearing that new york gun law case, when the gun law itself was annulled anyways so the case is basically moot, not an issue? Or SCOTUS hearing the precursor case of limiting EPA regulation before the EPA has regulated anything? Or SCOTUS's multiple really significant decisions passed through the shadow docket, aka no reasoning provided?

This doesn't seem like people being mad because populationist reasoning. It reads like people being mad because SCOTUS is acting spuriously and is deviating from established law theory but there are no ways to hold them to account for doing so.

Even if a particular law has been annulled out of fear of a SCOTUS decision - that does not mean SCOTUS should not take up the case. After all, people were harmed by the law, and the law possibly was never Constitutional in the first place.

We cannot have a system where a Federal, State or Local government passes Unconstitutional laws on purpose, oppresses a population and only repeals the law when there's a real risk of a SCOTUS decision.

States like NY and CA have a history of repealing & replacing laws (with similar but slightly different laws) just to keep SCOTUS out of things (one cannot just take a case directly to SCOTUS after all).

The EPA case was whether or not government agencies and departments have the power to make up and enforce regulations on their own. The Constitution only provides Congress with the ability to create new laws and regulations, which is why this case reached SCOTUS.

The EPA was not a target, although they were the vehicle for that case. The decision from SCOTUS provides guidance to all lower courts in the nation. The importance here, is a lower court can short-circuit a complaint based off this guidance from SCOTUS. So next time some random government agency makes up a new law and tries to enforce it - a lower court can stop it quickly instead of a case having to make its way up to SCOTUS again (because that court can reference the decision and say this is Unconstitutional - getting a case in front of SCOTUS can take years or longer).

These are exactly the types of cases SCOTUS is supposed to take, rule, and provide guidance for all of the other courts in the nation.

Populism is exactly the reason people are upset with both. "Guns are bad" and "EPA is good" are emotional, populist arguments that count on people's misunderstanding or ignorance of how government, the Constitution, law and SCOTUS are supposed to operate.

Here's the thing though, both of these cases have no reason to be brought to SCOTUS because it fails to show aggrieved party or harm done. In the NY case, the law itself was already moot, and therefore the case should've been dismissed. In the EPA case, there was could be no harm done, because no regulation had passed. By this logic I should have a legal right to sue anyone due to a potential violation of any civil liberty without first proving any actual violation whatsoever... which is clearly nonsense.

SCOTUS took up both these cases for clearly political reasons as opposed to good law.

The court's been political, has been meddled with in political ways, and has had multiple important people—including signers of the constitution—point out that if they get too wacky we can and should just ignore them, for basically the entire history of the country.

> including signers of the constitution—point out that if they get too wacky we can and should just ignore them

Completely untrue.

Not only is SCOTUS the head of one of three branches of our federal government and cannot be ignored (whatever that means) - there is an Impeachment & Removal mechanism in place for when a particular Justice does not uphold their duties.

However, not agreeing with you on some issue is certainly not a failure to uphold their duties.

You write about application of the a law. I write about attitudes, observations, and actual history.

Frankly, none of this matters for the purposes of our government and this conversation. Only the Constitution matters. SCOTUS literally cannot be "ignored" since they are the only body of government that decides what is or is not Constitutional.

This perspective is utterly perplexing to me. The very reasoning behind allowing something as terrifying as a supreme court to exist was that its power comes entirely from the consent of the people and the other two branches. They 100% can be ignored. The executive and legislative simply don't do what they say, and poof, they're ignored. This isn't theoretical—one of their first major decisions, Marbury v Madison, was made with the expectation that if they ruled too much the "wrong" way, Madison and Jefferson were entirely willing to simply declare their decision void and ignore it. The decision may well have come out different if not for that reality (i.e. yes, they literally—literally—can be ignored).

There's the high school civics version of the court, then there's the court as it actually functions. The former has never been a close match to reality, not even in the eyes of (some of) the founders themselves.

It seems you have a fundamental misunderstanding of how the US federal government operates.

Congress can make a new law, or ratify a Constitutional amendment. That is the only way to "ignore" a SCOTUS decision. (although that is not ignoring, that is literally how the legal process works)

The President can commit a crime and do Unconstitutional things - for which they can be removed from office (Impeachment & Removal process), and then tried for crimes.

Each of the three branches has what we call "checks & balances", ie. each branch can do something to offset the power of another branch. No branch can outright ignore another branch - they have to go through their legal processes to make changes.

What you seem to imply here is both Congress and the Executive branches should just commit more crimes because it's currently popular to do or think a certain way.

The disconnect is happening because you observe the President and Congress commit crimes regularly. The Court System does not act quickly - it can take years or decades for a case to reach SCOTUS. This is why a SCOTUS decision is so important - not only does it clarify what is or is not Constitutional/Legal, but it provides guidance for all the lower courts to provide rapid judgements. This system is slow, deliberately, to avoid rapid swings that change with political tides.

If that's a reality people want... then this country is doomed. But... in order to doom it for real, a lot of crime would need to take place at very high levels first - which would lead to a dissolution of the federal government and the United States in it's entirety.

> What you seem to imply here is both Congress and the Executive branches should just commit more crimes because it's currently popular to do or think a certain way.

I never wrote "should".

The actual in-fact reality is that the court's credibility is very important, and that, as there are both legal and illegal means for the other branches to circumvent or punish them, they've repeatedly decided differently than they probably would have without that pressure and those threats.

That's how the court works. It's effectively how it has always worked. It's not apolitical (never has been), it's not immune to public opinion (never has been) and they've always relied on consent of the other branches to enforce their decrees (that fact is the very justification for why they're allowed to be so insulated from direct public input in the first place)

[EDIT] Ah, I see where you got "should". That's a paraphrase of Jefferson and Madison's opinion (among others), not mine, so take it up with them.

> they've repeatedly decided differently than they probably would have without that pressure and those threats.

To quote the "Dude" (Big Lebowski reference) - that's like, your opinion, man.

Each of the recent high profile cases are clearly constitutional issues, despite the populist sentiment to the contrary. Further, for some of these issues, Congress has had the entire history of the country to set correctly - and has chosen not to.

You should be angry with you Congress people, not SCOTUS. SCOTUS doesn't get to make up laws... but somehow people have come to believe they should when it's "righteous" or "morally right". SCOTUS doesn't even consider those factors, they only consider the text itself. Congress is free to consider those factors, but doesn't...

Look, this is super-mainstream "how the supreme court works" stuff. You can disagree but you're wrong. There's a ton of material on this, much of it's online, and a guide to the rest can be found in most any university US government course syllabus. Federalist 78's probably a decent starting point.

You're arguing with history and reality itself, not me. I dunno what to tell you.

The Federalist papers were political opinions - not law, and certainly not the Constitution.

They provide insight to what some of the founders may have thought - but then there is reality which is what we have now.

Your entire point seems to be, some people broke the law and got away with it, therefore SCOTUS is now just a thing we sometimes pay attention to when it's convenient.

That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional. People are largely ignorant of government and the Constitution, so it's really easy to whip people up into a frenzy over some perceived evil-doing or something.

Don't like a SCOTUS decision? Get Congress to overrule it. That's how it works - there is nothing else except crimes that sometimes go unpunished or take years to be undone.

We teach this stuff in grade school because it is, in fact, that simple.

> They provide insight to what some of the founders may have thought - but then there is reality which is what we have now.

The reality we have now is that the court has never functioned the way high school civics treatments of US government describe it. Its credibility is very important to its continued power and to our avoiding constitutional crises, which means that the popularity of its decisions and the perception that it's making fair, impartial rulings matter deeply. It is and always has been a political body, but its unique mix of weakly-accountable authoritarianism and impotence—designed that way on purpose, which is why I point you to Federalist 78 as a starting point—means it operates very differently from, expresses its political will differently than, and experiences the effects of politics differently from, the other two branches.

> That is simply not reality. It's populist, as-of late, due to some decisions that were unpopular but Constitutional.

As-of late? I've already pointed out that this has always been how it works. I'm not describing how I want it to work, I'm describing how it actually works. The court's reputation does matter. That's the only thing that keeps the other branches from ignoring it. If either party thinks they can get away with ignoring it and not lose seats, that's a terrifying place to be in as far as the health of the Republic, and that's not some idle concern. Members of government, founders, and members of the court have, variously, acknowledged this reality and acted accordingly.

> People are largely ignorant of government and the Constitution

I doubt I disagree with you about what the Constitution says on this matter, nor am I ignorant of it.

> Its credibility is very important to its continued power and to our avoiding constitutional crises

This is the point of contention. It's a modern concept, when some folks of a particular political leaning didn't get their way. Suddenly, practically overnight, SCOTUS is a politically motivated organization that must keep up with popular opinions or risk "losing power". Otherwise, they're branded as evil-doers and worse...

This is simply not how our government works (thankfully).

If it did, people would have ignored Congress and the Office of the President long ago... and we would no longer have a functioning federal government, or a country for the matter.

The idea that the Judicial Branch is beholden to popular opinion and must maintain "credibility" is something that happens to unstable governments in far away parts of the world. This is not how our system works, again... thankfully.

Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective. Credibility has literally nothing to do with this system - it was designed that way on purpose.

> It's a modern concept, when some folks of a particular political leaning didn't get their way.

I've repeatedly pointed out that it's not, at all. It's been a feature of our political system from the beginning. The ideal is that it's not, but that's never actually been true. It's something that's been known as a feature of this particular arrangement of government since before the Constitution itself was written—when it was still in the planning phase.

> Credibility has literally nothing to do with this system

You keep using "literally" and it keeps making your points worse because they're literally wrong, while they might have merit as an aspiration, at least.

> Just because the judicial branch moves slowly and doesn't play petty politics does not mean they are not effective.

Like... they totally do play petty politics. Again, read any history of the court, it'll be pretty clear that they always have. It'd be kinda weird if they didn't, when you think about it. It's just a bunch of people, after all, as was (again) repeatedly pointed out by various founders.

I think you need to temper your idealism with some realism. Consider, for example, that 'qualified immunity' originates as a pragmatic legal doctrine rather than in statute or executive order. It is a creation of courts, notwithstanding the resultant tension with the Constitution itself (see eg Vega v. Tekoh, the most recent case in the linked summary).

https://www.law.cornell.edu/wex/qualified_immunity

From your linked article:

    Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

Literally everything in this article cites the Constitutionality of every presented case that built modern Qualified Immunity. In all cases, a government official is not allowed to violate your actual rights, ie. the ones provided by the Constitution or ones codified into law by Congress.

That is how the system is supposed to work.

I don't see the point you are trying to make, however.

Go read some actual cases and see just how much behavior is excused under the rubric of QI, where a petitioner's only recourse ends up being the offending agency investigating and endorsing the actions of its own employee. I find it hard to believe that you are totally unaware of how this doctrine gets abused or the questions of scope creep, and that was just one example. IF you study law and jurisprudence, it quickly becomes obvious that it is not the process of pure disinterested rationality you seem to imagine.

This is an odd take. QI can only expand as far as the courts allow it - because you can challenge it in court (and it is challenged often).

QI allows government employees to do a lot of things - except violate your real rights (provided by the Constitution and/or laws passed by Congress).

If you do not like how QI has developed over the years - then it will require either A) Congressional Law or B) SCOTUS decision to change it.

None of this has anything to do with what this thread was about.

Just because you are unhappy with some legal tool, doesn't mean SCOTUS is derelict or something. That's just absurd... and demonstrates a lack of understanding of both our judicial and legislative systems.

> I'm personally WAY more concerned about Justice Thomas and Ginny Thomas and their links to the insurrection attempt, and other undermining of democracy.

I'm more concerned about global warming, but you can be concerned about more than one thing.

America hasn't been lacking in abortion discourse in awhile. The leak potentially effected the outcome of both the decision and November's election -- more undermining of democracy.

It certainly influenced the election and undermined the judiciary, but I'm not sure it undermined democracy.

For me, it mainly undermined my trust in the Supreme Court. I’d already lost trust in congress and the presidency. Now I have lost trust in all three branches of government. Complete corruption across the board.

Power didn't start corrupting people yesterday. That sentiment is pretty much the entire reason why the US government was designed to have three branches that checks and balance each other. You don't need to trust anyone in particular if you can trust the process.

Well, I no longer trust the process. That was the basic meaning behind everyone is corrupt.

I understand, i’m saying I don’t think it’s reasonable to make that jump.

The process has design features to specifically allow it to function even when run by corrupt people. That was the entire point, since the beginning.

SCOTUS is the least democratic of the three branches of government. Trust in SCOTUS hardly qualifies as trust in "democracy" at all. Unless I guess you're using "democracy" in a sense that is synonymous with all aspects of American government, which would be a mistake.

Are you all trying to make reference to the American Republic? We aren't a democracy, although our system does have democratic features.

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