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As much as I've been deeply unsatisfied with a lot of SCOTUS decisions in the past few years, I have to agree with you completely that it is the legislative branch which "should" have resolved nearly all the high-profile (and possibly even medium-profile) cases that have been brought to the court, by passing actual laws. Should we have (abortion, vote by mail, immigration, etc etc)? Yes the answers are controversial, but this stuff is too important to leave to a committee of unelected judges to speculate about what long-dead founding fathers wanted. We have current, real-life representatives, in theory, who could pass laws reflecting what we want, in theory. In reality the legislative branch is what's very broken.

The legislative branch can't heal itself, how do you get Wyoming to give up its power to cancel out California's?

Also, we have the 14th amendment, which basically bars discrimination. The Constitution is the super legislature and it's up to the Supreme Court to keep it that way by making sure states can't turn women or sexual minorities into second or third class citizens. Which they are currently doing.

the court cant take over because the legislative branch is paralyzed though

we obviously don't have checks and balances to prevent that, aside from judges that chose not to … like we currently have

is this really a uniquely “republican” stance right now? as opposed to just driving people away from partisans at all, because I’m in the latter camp and wont support modifying a view just to help a party consolidate power

> As much as I've been deeply unsatisfied with a lot of SCOTUS decisions in the past few years, I have to agree with you completely that it is the legislative branch which "should" have resolved nearly all the high-profile (and possibly even medium-profile) cases that have been brought to the court, by passing actual laws.

Most of the high profile cases are:

(1) Questions about the meaning of the laws actually passed, and

(2) Questions about the Constitutional power of one or another branch or level of government.

These classes of questions share the feature that Congress cannot resolve them by passing a law. (At least, if it tries to in thebfiret case, that sets up an infinite regression of laws to pass.)

(1) certainly can be addressed by passing a law. Laws can be and are updated to add clarity or cover unforeseen circumstances all the time.

Lawyer here.

"[A]nyone that actually reads Supreme Court decisions" is the pertinent part of your comment. That is a very small group of people,* and usually a very quiet one that doesn't jump to the conclusion that the court is "illegitimate". The vast majority of the 50+ decisions each year do not make the news and the plurality of them are decided unanimously.**

* Basically nobody, unless it's their job, reads every case. However it is normal to follow a site like SCOTUSblog.com and get summaries to stay in the know.

** I guess check out any of the years here: https://www.scotusblog.com/reference/stat-pack/

I wish the common discourse was at this level

There is so much distorted information fueling people’s emotions, but the contents of the cases are actually very interesting and illuminating of many options left open for people to get closer to what they want, like when judges point out “well maybe if you brought a case forward this other way, we could evaluate these outstanding questions” but nobody passionate about a cause reads this stuff and only reacts to the outcome

What I don't understand is how anyone who has read the Dobbs decision sees it as even handed and reasonable.

Ignoring stare decisis with the flimsy "history and tradition" argument is farcical, considering the jurisprudence it was overturning was in place for about 1/5 of the nation's history.

The legitimacy of the court is in question because the court is at this point another political branch .

This is because the legislature is going full scorched earth in their "advise and consent" powers as a weapon.

Reform is needed.

“stare decisis” is not a black and white rule where prior decisions can never be overturned.

I’m not sure I’d want Supreme Court decisions about slaves not being US citizens to stand simply because it’s precedent.

The original Roe V. wade decision was a weak one, something admitted even by supporters of abortion rights.

The court simply threw out the weakly supported argument and returned the decision to the legislature.

I do, and do. Not for this ruling, this ruling was just stupid. The odds that not one single share he purchased was registered is 1 / pow(10, 57,287). After that we're just haggling over how many there are.

The ruling that I, and most people, find to be damning is overturning Row. I don't give two shits about what you think of the actual issue. It doesn't matter if the previous ruling was wrong, the point of the courts ironically isn't to actually get it right but make a decision. After that the law has been interpreted and it's up to the legislature to say, "no I actually meant this." There is some room for exceptions on this but a split decision, split on party lines, and extremely tenuous reasoning, should be all the signal you need that you don't have the "this is fine because it's obviously wrong" to warrant an exception like this.

>"The ruling that I, and most people, find to be damning is overturning Row. I don't give two shits about what you think of the actual issue. It doesn't matter if the previous ruling was wrong, the point of the courts ironically isn't to actually get it right but make a decision. After that the law has been interpreted and it's up to the legislature to say, "no I actually meant this." There is some room for exceptions on this but a split decision, split on party lines, and extremely tenuous reasoning, should be all the signal you need that you don't have the "this is fine because it's obviously wrong" to warrant an exception like this. "

You present many controversial philosophical opinions as facts, which many people disagree with. 'Stare decisis' is the term used to describe the notion that existing judgements should be given deference, even when they're clearly wrong. The degree to which courts defer to SD varies a great deal, with judges holding diverse views on the subject, and many judges using it more as an argument of convenience than a philosophy which they follow.

I will assume that by "Row" you mean "Roe v. Wade", and it is a very good counter-example to the statements which follow it. RvW was decided based on constitutional grounds, which means that even if a legislature thought it was wrong, there would be no way to 'clarify' the matter. Another problem is that lots of cases have split decisions, some on party lines. In addition to those, there have been many times when the judges have (almost) all been from the same party (the 1930s come to mind); should those cases get deference?

> RvW was decided based on constitutional grounds, which means that even if a legislature thought it was wrong, there would be no way to 'clarify' the matter.

That's not true at all, at least rules as written. If the supreme court interprets the constitution and the legislature doesn't like it they have the power to amend it. Thats the explicit check the legislature has on the courts. And yeah it's a huge PITA but we've also done it 27 times.

> In addition to those, there have been many times when the judges have (almost) all been from the same party (the 1930s come to mind); should those cases get deference?

Yes, absolutely. I have no idea why you thought I would say no to this.

Split decisions are fine for first rulings, it's how it goes, people disagree. But when it comes to the courts changing their mind down the road the bar needs to be higher. The previous ruling has been standing for however long without the legislature feeling the need to intervene. Unless there is some new information like a hypothetical ruling that was based on phrenology or an exceptional case where it's clear to everyone that it was a mistake and the logic doesn't actually follow you should give deference.

And look, I know this gives a huge amount of bias to the decision in the first ruling but without it the decisions of the court stop having any meaning. So what if they ruled <thing> is unconstitutional? I can keep doing it because the next time it might not be.

It is pants-on-head stupid that flagrantly violating the constitution on purpose after the law has been settled so you can go back to the supreme court and rule a different way even has a chance of working.

When you have half the court saying the decision as it was originally made was not only not made in error but that it was correct that really needs to be the legislature's problem.

I vouched this comment as I think there is an interesting point of view to consider, about the probabilities in particular.

This court is illegitimate because most of it was appointed by Presidents who lost the popular vote. The fact it keeps dropping decisions that are far out of step with the legal community and the public itself is a consequence of this.

If you think the Court is merely "interpreting the constitution" then please explain how to interpret the 14th amendment without giving the Supreme Court wide latitude to protect minorities?

EDIT: Equal protection means whatever the Supreme Court says it means. They are a super legislature whether we like or not, and if they're going to be one, it sure would be nice if they cared at least a little bit about public opinion on matters of great controversy. And popular vote absolutely matters for legitimacy and "will of the people", even if the rules are currently stacked against one person one vote.

Popular vote in the presidential election means nothing. In fact it would be more proper to say that if a president "won" under the nation popular vote compact that blue states have been passing, that president and his actions would be illegitimate.

Equal protection doesn't mean that any law that has any racially disparate impact is unconstitutional. It means that you cannot treat different citizens in different way based on who they are.

Keep in mind that unanimous rulings are the plurality of rulings, with more controversial rulings like 5-4 ones are much rarer.

When jurisprudence and the law conflict, which one wins?

What does this mean? The courts fill in gaps in laws. If lawmakers don't like the result, they can make new laws. It's a cycle. Law -> interpretation -> new law.

When the laws conflict, the courts make a decision. Subsequent court rulings generally follow that same decision. I meant to say stare decisis.

“I just don’t understand how a court issuing rulings directly along partisan lines including overriding a massive, twice-confirmed-by-bipartisan-supreme-courts ruling directly violating the spirit of their confirmation hearings and the usual role of the court could be controversial.”

My, grandma, what large bad faith you have!

Another example where they said elected officials can handle it, no matter how disruptive.

I see consistency.

A court that was acting like a super legislature along partisan lines could easily have taken much further advantage than that, and …. didn’t? They didn't say “its banned, bye”. they said “elected officials should be handling this” no matter how disruptive that is, which is only disruptive because elected officials did not address the issue because they were hoping to be elected again

yes, lying to get appointed is a common strategy in the US. I dont think that has bearing on the merit of the ruling itself. I see consistency and congruence, and I dont see absurd wild interpretations that people suggest is occurring

Hahaha what, they literally overrode 2 past court’s rulings after saying they wouldn’t. The judicial branch overrode a decision ruled on TWICE, decisively, bipartisanly, with no new legislature involved. That’s only consistent with interpreting them as partisan hacks who don’t respect their institution.

The blind spot with this common and oft-repeated perspective is that this was near the median amount of time it takes for the Supreme Court to overrule itself. Meaning this wasn’t unique or rare or an outlier.

https://news.ycombinator.com/item?id=31962613

the rationale presented in the case was a reversion to the mean, where the court doesn't function as a surrogate for the legislature. grasping at the procedural aspects of appointment because the judicial review was sound but disruptive suggests that these aren't strong arguments about the judges.