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Comment by zdragnar | Hacker News Reader

Congress shouldn't have to constantly pass laws just to tell the executive branch that they are abusing their powers. That's what the judiciary is for.

My uncle has a small stream running through his back yard, counted as "navigable water" despite the fact that I could jump across it as a child and it wasn't deep enough to support anything but a paper boat.

I'm also not saying we shouldn't have protections for the environment, but loose interpretation of rules is how you get corruption and abuse.

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> constantly ass laws just to tell the executive branch they are abusing their powers.

Nobody is suggesting that. The basic argument is if both the executive and the judiciary misinterpret a law for decades then it’s the legislative branch’s job to correct that “misunderstanding” not the judiciary. This is why it’s called a common law, past court cases clarify the rules. https://en.wikipedia.org/wiki/Common_law

When president exists it’s the judiciaries job to maintain the status quo not to arbitrarily change the rules after it’s already made up its mind, unless there is some clear conflict. The fundamental principle at play is if the judicial branch can flip flop arbitrarily then president is meaningless and everything can be relitigated endlessly.

Edit: There’s many sources of conflict even without changes to the law as lower courts should be self consistent but there’s independence between them. Which might seem strange but creates some redundancy as consistent rulings reinforce precedent while conflicting rulings invite intervention by a higher court.

> arbitrarily change the rules after it’s already made up its mind.

It is often the precedent which was arbitrary.

Sure, but that’s not an inherent issue. If things are arbitrary and you decide based on a coin flip then the coin flip needs to be binding or you just keep flipping coins.

There’s many other systems we could use, but existing case law has the benefit of being extremely detailed. If navigable waterways in your state is public land, what happens after a dam is installed and they’re no longer navigable? That’s the kind of thing you want to find out before you buy some property.

An issue down to coin flips should be seen as a signal of a bug. However, I would argue that more often than not, it's not actually down to a coin flip. There is a default position in a liberal society, and that is that of minimal authority. Every legal question is fundamentally one of "does the state have the authority to do this, and if so, at what level?" If the answer is unclear, this should always resolve to no, or if yes, at the most localized level specified.

I edited the above comment for clarity so I don’t know if you saw it, but the benefit is allowing people to make decisions without court cases.

Most legal questions aren’t about state power but what exactly the rule is. Contracts are a huge area that has little to do with the state. Even when stuff involves the state people want to know the legal/liability/tax implications of doing X vs Y before doing something.

Ie: Do I need a permit to build an outdoor pizza oven? It doesn’t matter how arbitrarily the rule was created, you just want to know the rule and often the penalty for breaking it. Laws often use vague terms like “reasonable.” So, WTF is does “reasonable speed under the circumstances” actually mean in say light rain, well chances are someone found out …

> That's what the judiciary is for.

Right, and the judiciary has 45 years of precedent that the wetlands are included. This radicalized illegitmate SCOTUS just threw out the protections because their corporate owners benefit from it.

The whole point of a supreme court is to set precedent, as they have with many other decisions that you probably like, like Brown v. Board of Education and Obergefell v. Hodges.

Besides, laws matter. If you want something done, you have to pass a law. If you don't have the votes, then go do the work and convince more people to vote with you.

Edit: it actually wasn't set precedent from the supreme court anyway. The previous decision was split and was sent back down to the lower court, before being settled:

https://en.wikipedia.org/wiki/Rapanos_v._United_States

No every level sets precedent, making precedent is a side effect not their role.

Historically only a small fraction of Supreme Court cases have overturned precedent without a conflict at lower levels.

Our laws are supposed to be interpreted via precedent. We are not a fly by night French civil system. Our legal traditions are rooted in maintaining centuries of stability within the law, altering those interpretations only in accordance with new laws.

If the courts cannot be expected to consistently interpret the law, how can citizens be sure what that law means?

To turn over fifty years of precedent on a whim is certainly within the power of the supreme court, but only in the same manner that doing a poor job of running the federal government is within the powers of the executive.

There is nothing to stop them from doing their job poorly, because they are themselves the ones responsible for setting and maintaining high standards.

I’m curious then if you also oppose Brown and Obergefell?

This seems to be a sort of "gotcha" question, wherein you pose points of precedent breaking for which I am likely to support the outcome but not the process.

And you are right.

I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine.

And I think both would have been better done as legislation.

When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry.

I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away.

You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.

A lot of the conversation in this thread is "cargo cult justice." The rituals of justice are being performed, but justice isn't to be found.

https://en.wikipedia.org/wiki/Cargo_cult_science

> In the South Seas there is a cargo cult of people. During the war they saw airplanes land with lots of good materials, and they want the same thing to happen now. So they've arranged to imitate things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head like headphones and bars of bamboo sticking out like antennas—he's the controller—and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land. So I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land.

You don't get democracy for participating in a voting ritual. You don't get justice for just following precedent. These things are a summation of the beliefs, norms, and actions of a society as a whole.

It is myopic to frame the conversation around precedence or individual cases. When you frame the conversation around justice, it becomes clear why it's OK to break precedence to protect rights granted by nature, but not OK to break precedence to enrich some business that pollutes the environment.

Here is one of our great founding father's (Thomas Paine) take on justice:

> Man, with respect to all those matters, is more a creature of consistency than he is aware, or than governments would wish him to believe. All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.

> But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent.

Our government was acting on behalf of the citizens with brown and obergafell and is acting on behalf of corrupt individuals with citizens united, this, the overturns, or any other number of things our federalist society junta is doing.

So when the court operates on behalf of the weak and oppressed it is fulfilling it's purpose, but when it operates on behalf of the powerful and corrupt, it is denigrating the institution it claims to be and spitting in the very face of justice and crushing the idea of rule of law.

Brown and Obergefell each overruled prior Supreme Court precedent. Brown overruled several decisions, including Plessy (itself one of the most asinine decisions in history).

You use the term "This radicalized illegitimate SCOTUS" but you realize that the court was unanimous that the EPA had overstepped its authority under the law right?

There was most certainly not unanimity on the redefinition of wetlands, which is what they were talking about.

> While the nine justices agreed that the Sacketts should prevail, they divided 5-to-4 as to how far to go in limiting the EPA's authority.

https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-...

I'm sorry, did you not read past the ad break? The very next paragraph is about four dissenters taking issue with the wetlands definition:

> Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."

You don't you just hate those radicalized 9-0 SCOTUS rulings?

Chantell and Michael Sackett went to the Supreme Court twice. Twice! Unanimous rulings in their favor both times. Sacketts: 18, EPA: 0.

Due to court turnover they had 13 unique SCOTUS justices find in their favor.

You mean the 9-0 that says they don't have a corruption problem despite mounting evidence of decades of bribes?

Am I supposed to pretend that the liberal justices aren't also corrupt?

So what percentage of SCOTUS "legitimate"

This is very misleading - the regulatory changes introduced by the ruling were 5-4 along ideological lines, even though the judgement in favor of the Sacketts was unanimous. In the case this year:

> The court voted unanimously to reverse the Ninth Circuit, but split 5–4 on the rationale. The majority opinion, by Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule-making and limited the scope of the Clean Water Act's authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal justices in agreeing that the CWA did not apply to the Sacketts' property, but argued that the majority's new definition was incorrect and will have significant effects on regulated waters.

> 45 years of precedent

What is this 45-year-old precedent of which you speak? The CWA itself? It's worth noting that the Sacketts have been wrapped up in challenging the agency decision in the courts for nearly 20 years. Regulatory agencies stretching the bounds of their authority until they come to a head in the courts is not unique to the CWA or the EPA, but is a phenomenon typical of the interplay between the Judiciary and Executive branch. A regulatory agency claiming their decisions are not subject to any judicial review is.. a position, I guess.

> Radicalized illegitimate SCOTUS

That comment seems quite radical. SCOTUS unanimously decided this case, FWIW. SCOTUS looked at the plain language of the statute, which seems like a great place to start and end the review. What has been determined to be illegitimate is the breadth of EPA's claimed authority under the law as written.

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