Legislating via the judicial branch is a bad idea.
If it only takes 5 out of 9 people to make laws for 600 million, it only takes one seat change to revert them.
(Edit: sorry, 300 - pre-caffeine posting)
The original usage of the phrase is reasonable enough[0], but that's not what this lawsuit was about.
[0] > On March 6, 1961, shortly after taking office, President John F. Kennedy signed Executive Order 10925, which required all federal contractors to take “affirmative action”—the first use of the phrase in this context—to ensure all job applicants and employees were treated equally, regardless of race, creed, color or national origin. https://www.history.com/topics/us-government-and-politics/af...
We saw this with Roe last year.
https://gspp.berkeley.edu/research-and-impact/publications/w...
> In her opinion in Grutter v. Bollinger, Justice Sandra Day O’Connor concluded that affirmative action in college admissions is justifiable, but not in perpetuity: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”
There are lots of criticisms of the SC, but I don't see why everything they rule should be absolute ground truth forever. They can (and do) revisit cases for good reason.
That's modern liberal opinion news talking. It's about law. AA is a direct contradiction to the 14th amendment and it dilutes it. I'm sure just about everyone, including previously and currently oppressed minorities would prefer the protections of 14th amendment over the protections of AA.
Can you give an example of a government program that takes race into consideration other than Affirmative Action programs?
I don't like many recent rulings from SCOTUS, but intellectual honesty forces me to admit that when the pendulum was on the other side, the same thing happened with different allegiances.
Almost as if the Robert's court concluded there is no point in being powerful if you can't rule, even though ruling is beyond the scope of all courts.
As for Roe V. Wade being codified, this was a moot point at the time because you had a Constitutional right to an abortion -- your right to an abortion was codified in the Constitution, a law would have been redundant.
I think when the status quo requires on someone's stretched interpretation of a series of things, and this status quo is very important to people, it's on lawmakers to make the rules unambiguous.
A lot of the logic of Roe v Wade was based on viability outside of a womb based on medical science of the time.
Right in the decision of affirmative action there is admission that it will need to be revisited.
Not really, 12 weeks are pretty common, and most european countries fit in 10-14 weeks, with just few exceptions like UK and Netherlands.
If they only selectively struck them down in favor of one group or another, then that would be a different matter.
This is in juxtaposition to civil law systems that are based on codified legislation, for example in France or Germany.
That's been in place for a LONG time, it dates all the way back to the separation of church and state decision being based on a letter Thomas Jefferson wrote.
Hell Roe v. Wade itself is an example.
What changed is the make-up of the court; otherwise, apparently affirmative action's unconstitutionality was just realized like a revelation from God and every previous court (federal and Supreme) was wrong.
Racial rancor, and racism in general -- anti black racism in particular -- has probably increased since 2003; at least in the public sphere - hopefully this ruling is not a part of that milieu.
these policies of racial discrimination aren't helping anyone. they don't help the people who didn't deserve the spots in the first place, and they don't help the people that are being robbed of the spots they deserve.
Congress cannot override this with a law. It would require an amendment to the Constitution, which is more involved. Considering that not even CA could pass a law to allow affirmative action in higher education, it would be impossible for such an amendment to be passed and ratified by the states.
The main opinion was actually following a line of cases using 14th Amendment jurisprudence to guide the interpetation of similar text in Title VI of the the Civil Rights Act of 1964, so, yes, Congress can override it by changing the text of the statute, which is in principal what is actually being applied.
The portion of the 14th Amendment whose interprtation was imported doesn’t bind either private actors or the federal government, so isn’t directly applicable on its own.
> Held: Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.
The concurrence by Gorsuch also makes clear that the majority opinion was based on the Constitution, not Title VI.
> Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.
What are you seeing that indicates that the majority opinion was based on Title VI?
I’d like term limits on Supreme Court justices. But I think the arguments on both sides of this debate are well thought out.
Again I don’t love the decision, but Im OK with it. That said I’d love to see universities stop giving weight to legacies. But the money is just too strong.
I think this is naive. Roberts is not "calling balls and strikes" despite what he would have you believe. The conservative wing of the court has been willing to adopt a range of interpretations to accommodate their outcome.
It's not just setting aside precedent but their increased use of emergency motions (shadow docket) to issue orders without explanation.
Some states are getting legislation done. Minnesota, for example, but same too with states that rapidly passed abortion curbs.
You're implying that the judicial branch legislated in this case.
They did no such thing.
They interpreted existing laws for a particular case, gave their judgement, and applied the existing law.
Indeed, legislating via the judicial branch is a bad idea, and so it's a good thing that they do not and are not able to.
It is a defacto Politburo - a long lived legislative body of ultimate authority that has a rolling composition not determined by direct electoral results.
We can point to the legal fiction that the judiciary is not the legislature all we want but it walks like a duck and quacks like a duck.
You're under the mistaken impression that justifications are a prerequisite. Any court can find justification for any ruling in whatever way they see fit. Yes, lower judges have been remove for questionable decisions. SCOTUS is above that, as a lifetime appointment. Sometimes rulings come with no justification at all. SCOTUS has been trying to explain itself via these public "opinions", but is not required to do so.
It has been a problem for decades now that Congress will pass laws that aren't well thought out, then leave it to the judiciary to iron out the specifics. It's only recently that members of the judiciary began pushing back and ruling on the text of the law and saying the legislators should "fix" the obvious problems with the law.
The term for this is colloquially, "legislating from the bench."
In the dissent at least, the court is very much interpreting court precedent and almost entirely ignoring the law itself
> Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the genera- tions. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal.
Apparently anything that doesn’t further a final state of equality of outcome is inherently racist and it’s the governments job to make that happen.
Thomas is a textualist when the text is favorable. If it's not, suddenly historical context and the founder's intent becomes crucial.
> They interpreted existing laws for a particular case, gave their judgement, and applied the existing law.
This is not how it works in common law jurisdictions. Common law judges can and do make law. This is called case law (or common law), in contrast to statute law that is enacted by the legislature. That goes beyond just interpreting statute law but also making new laws where they do not exist. Common law offences, for example, are crimes declared as such by judges even when there is no statute criminalising that conduct. Most of the existing contract law has been made by judges rather than by legislators.
Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.
That's internally consistent. Roe V. Wade was the bench legislation in this case.
The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions.
Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
> Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision.
> Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.
> “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.
https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...
The right to abortion is guaranteed by the right to be free from "unreasonable search and seizure." That is literally the best ever example of squinting REALLY hard at the constitution and trying to make something fit. Roe was 100% making a legal argument for abortion to be regulated at the federal level using the most twisted pretzel logic imaginable.
No, its just a typo, Roe rested on the Due Process Clause of the 14th Amendment, not any provision of the 4th. “A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” (It in passing mentions other previous cases relating to privacy rights which found aspects of them other places in the Constitution, including, among many others, the combination of the Fourth and Fifth Amendments in Terry v. Ohio, but no part of the rule articulated in Roe purported to be interpreting the Fourth Amendment, only the 14th.)
It makes sense therefore that there was no non-enumerated right to abortion, and states did have the right to ban it.
The 1973 decision was most definitively legislating from behind the bench.
It will probably only be banned after both the right and the left get burned by this type of legislating enough times.
Most sources I can find suggest none.
Eg:
Abortion has existed in North America since the European colonization of the Americas, was a fairly common practice, and was not always illegal or controversial.
Until the 19th century, abortion was legal under common law, and only after quickening it was not allowed.
Though it is considered taboo in Christian traditions, until the mid-19th century, “the Catholic Church implicitly accepted early abortions prior to ensoulment,” she explained. “Not until 1869, at about the same time that abortion became politicized in this country, did the church condemn abortion; in 1895, it condemned therapeutic abortion,” meaning procedures to save a woman’s life.
Legal scholar Sheldon Gelman has argued that the U.S. Constitution (1789) imported the tenets of the English Magna Carta (1215), which includes the basis of the right to bodily integrity including abortion.
Connecticut was the first state to regulate abortion in 1821; it outlawed abortion after quickening and forbade the use of poisons to induce one post-quickening.
There are opposing legal philosophies on how to interpret amendments 9 and 10, which say that people have rights and the government has powers. The question is always how to resolve when the two are in conflict.
Current SCOTUS majority holds an extremist view that when government exercises an unenumerated power, it essentially cancels the existence of an unenumerated right. That's why they look for historical laws that support their desired outcomes. Until recently, this was a fringe idea because it means the state governments get dibs on your unenumerated rights.
You're entitled to your opinion on this approach, but don't expect everyone to take that reasoning seriously.
Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena.
https://www.whitehouse.gov/about-the-white-house/our-governm...
The problem when you do this - especially on questionable legal arguments - is you're essentially setting up the future to have to fight for that right all over again, as we've seen with Roe v. Wade.
You can't take a section of the constitution that's about citizenship, infer a right to privacy and then extend that to abortion and not expect that flimsy foundation to be challenged later when the right 5 people happen to be present.
New York has a right to shelter law because of the judicial branch of government. Basically, a pro bono lawsuit and a judge forced NY to have enough shelter space for all people sleeping in the street.
Compare and contrast that to San Francisco (and more broadly California) - where everything can be decided on at the ballot box (like kidney dialysis staffing levels) - which has more people sleeping on the street than all of the UK, and has a wait list of each night of 1000+ for a shelter spot.
Everything has advantages and drawbacks.
Indeed, just today, SCOTUS also released a unanimous opinion protecting a person's religious rights against his employer [1]. Sotomayor and Jackson left an addendum pointing out that this man had asked them to overrule a 50-year precedent in interpreting a law, and they explicitly chose not to do so (though they ruled in his favor in a different, narrower way) precisely for the reason I mentioned about Congress having the opportunity to correct the matter if they so choose.
The "liberal" justices usually get the most flack for "legislating from the bench" (although arguments can be made that the "conservative" ones do it too). But here we have the most liberal justice on the Court saying "The Court's respect for Congress's decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals."
If I could air a very broad-brush opinion, complaints people have about SCOTUS being a partisan institution these days are best levied against Congress (and litigants) for how they treat the Court, not against the Court for its own behavior. When people express low confidence in the Court, I'm always eager to see them aim their low confidence at Congress instead of (not in addition to) the Court.
[1] https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf
If the Citizens United decision didn't teach us that, nothing will.
This is a really lazy trope whatever you think of the specific decision's result (or the reasoning).
The "political spending" in the case of Citizens United was the production and dissemination of a propaganda film. If the release of a film can be restricted, why not a press release as well?
From wikipedia: "Broadcasting the film would have been a violation of the 2002 Bipartisan Campaign Reform Act, which prohibited any corporation, non-profit organization, or labor union from making an "electioneering communication" within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time."
If the law bans "electioneering communication", could not an electioneering press release be considered such a banned communication as well?
1. SCOTUS considers corporations 'natural persons' in their decisions
2. SCOTUS considers 'corporate personhood' to encompass too many rights, you believe should be exclusive for 'natural persons'
3. Possible misunderstanding around the term 'corporate personhood'
Could you clarify a bit? I've seen a lot of (3.) on discussions around this, while claiming essentially (1.) happens or (2.) is what peopel try to complain about.
But saying that corporate personhood shouldn't include political donations as part of their free speech rights, while a perfectly reasonable position and I might even agree, doesn't make as good a soundbite.
You mean 330 million?
Perhaps, if there is no 75% majority of opinions at the supreme court, then the case is just put on hold indefinitely until new clarifying laws are passed?
Even Congress with 535 representatives isn't many. One representative for each 600,000 citizens? When was the last time a thousand Americans agreed on anything, much less half a million?
We have one of the worst ratios in the world: https://en.wikipedia.org/wiki/List_of_legislatures_by_number...
Edit: And the SC isn't representative anyway. They're appointed by the elites for the benefit of the ruling party, and there's a lot of politicking for those seats. Way too much power and corruption -- for life. The institution itself is a problem.
If they were 9 randomly selected citizens, then the majority vote of the 9 matches the result of a majority vote of the 300 million nearly always, particularly for decisive issues.
For example, if 90% of the population think something, then there is a 0.089% chance that a majority of the 9 citizens disagree.
Obviously judge selection isn't random, and thats probably your main concern.
Democracy isn’t perfect, and they’re a check against some of the failings of the system.
Frankly, I’m shocked at how upset some of you are over racial discrimination being banned.
I don't really care about affirmative action much one way or the other. I care about the lack of representation in my so called democracy, and the Supremes are a huge part of that problem.
Avoiding the tyranny of the majority is a major reason we intentionally don’t have direct democracy.
Now, they may not have interpreted it the way you or I would, and they may not have interpreted it correctly. But that is what they do.
We afford deference to the Court because we believe it follows a constrained legal procedure that makes the word "interpret" meaningful: this involves taking into account precedent and past case law. This approach tends to prevent justices from "interpreting" the law in ways that effectively re-write the law according to their instantaneous political preferences. This court is receiving criticism (and serious loss of public approval [1]) because it has abandoned those constraints, and keeps overturning longstanding precedent in ways that happen to correspond to the stated political preferences of the justices (and the politicians that appointed them.)