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Comment by jltsiren | Hacker News Reader

I think the issue is that the Supreme Court has established itself as a parallel legislative branch. It can arbitrarily choose to re-examine the constitutionality of an established thing, and it can also reverse its past opinions.

There should be a time limit beyond which the Supreme Court cannot act. If nobody has challenged the constitutionality of something in 10 or 20 years, it should be implicitly constitutional, and no court opinion should be allowed to change that. Similarly, if the Supreme Court has already made a decision, it should not change it unless the relevant laws or the relevant parts of the constitution have changed. The right way of changing the constitutional status of an established practice should be changing the constitution itself.

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You may be interested in https://en.wikipedia.org/wiki/Originalism

> Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.

> Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.

Note that this philosophy -- for better or worse -- runs counter to many modern rulings of courts.

Example of decisions that differed from accepted understanding of the Constitution+Amendments at time of ratification:

* Gideon v Wainwright

* Lemon v Kurtzman

* Roe v Wade

* Obergefell v Hodges

Brown v Board of Education

No, not really.

It was not universally believed that public school segregation was compatible with the 14th Amendment when it was ratified.

Originalists may have something to say about the legal reasoning in the opinion, but Brown's victory itself is not a counterexample.

I've never heard an originalist say anything but that Brown v Board conformed to the original meaning of the 14th amendment.

That's because modern originalists are embarrassed by this, because it starkly reveals how untenable originalism is. But it's a fact. Look up George Wallace some time. Segregation and Jim Crow were the law of the land for 100 years after the 14th amendment was ratified, and many (white) people fought tooth and nail to keep it that way.

Even if Brown vs Board were incompatible with originalism (though, again, no actual originalist says that), I don't see how "it starkly reveals how untenable originalism is."

If you want judicial philosophies that produce only moral outcomes, regardless of law, you don't even need laws.

> no actual originalist says that

That's because originalists are hypocrites.

> I don't see how "it starkly reveals how untenable originalism is."

Because if originalists were not hypocrites, if the actually practiced originalism consistently, they would be calling for the repeal of Brown and Loving and advancing a whole host of other radical ideas that no sane person supports, and everyone would see how intellectually and morally bankrupt they are.

> If you want judicial philosophies that produce only moral outcomes, regardless of law, you don't even need laws.

I want a judicial philosophy that is, at a bare minimum, internally consistent. Originalism as it is actually practiced by self-identified originalists doesn't even meet that basic criterion. Originalists are originalists only when it suits their political agenda.

If a system seems inconsistent, it possible you haven't understood the rules.

Loving is a terrible counterexample. Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). Not to mention the democratic debate in passing the 14th Amendment, had many legal assertions that the amendment would invalidate such laws.

That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.

> it possible you haven't understood the rules

Yes, that's possible. But the (ostensible) rules of originalism are not exactly rocket science.

> Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant).

That statement has the form of "Santa Claus exists (or the sky is blue)." It's technically not false, but it is not a good-faith argument either. There absolutely were anti-miscegenation laws in 1865; such laws date back to 1691. So there is absolutely no possible originalist justification for Loving. When Loving was decided, anti-miscegenation laws had been on the books continuously since long before the United States even declared independence from Britain.

>That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.

None of that is even remotely close to being true. You are either not arguing in goof faith, or you are profoundly ignorant of history. The passage of the 14th Amendment was followed by 100 years of uncontested Jim Crow laws [2]. Even today the Republican party is hard at work finding new and creative ways to disenfranchise minority voters [3-8, and I could have gone on and on and on].

---

[1] https://en.wikipedia.org/wiki/Interracial_marriage_in_the_Un...

[2] https://en.wikipedia.org/wiki/Jim_Crow_laws

[3] https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-t...

[4] https://www.nytimes.com/2020/11/22/us/politics/trump-republi...

[5] https://www.npr.org/2018/10/23/659784277/republican-voter-su...

[6] https://pbswisconsin.org/news-item/republican-election-tacti...

[7] https://www.brennancenter.org/our-work/research-reports/new-...

[8] https://www.washingtonpost.com/politics/interactive/2021/vot...

Should its own rulings be as binding? Plessy v. Ferguson was decided in 1896.

Of course. The job of the judiciary branch is to establish what the laws actually mean. If people don't like the decisions, the right process is telling the legislative branch to change the laws.

The actual process is to appoint new SCOTUS judges and they just re-interpret the meaning to your liking. No legislation required.

Works out well for the legislature too. Plenty of topics to campaign on. Plenty of chance to grandstand on social media, in hearings, in the regular media. Get re-elected while solving no problems. "Half" the population will always vote for you because the alternative is socialist/fascist. It's a version of the lazy google engineer [1] that makes less money but has potential for national fame and maybe some insider trading.

If the legislature was getting screwed by this arrangement there would be a lot less deadlock in congress and the power of the judicial branch would be relatively less. And somehow this take is somehow less cynical then yours? What a world we live in.

[1] https://www.youtube.com/watch?v=yD2JaAnMMo0

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