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Comment by rayiner | Hacker News Reader

It’s also fair to point out that someone who doesn’t litigate administrative law cases probably isn’t qualified to offer an opinion on an interpretive practice in administrative law.

But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010.

In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.

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The court is clearly going in the direction of activism in the sense of abandoning major precedents that have been around for many decades. Abortion, fair share union dues, Chevron, Citizens United, gutting the Voting Rights Act (thousands of polling stations have been shut down in recent years), and this week effectively legalizing bribery of government officials. The combination of these and other precedents is ushering in a new era of intensifying regulatory capture and with the people effectively losing power.

The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.

Did you look at the table linked by OP? What you're describing is definitely the meme that's been going around, but how much of the sense that this court is more activist than the last few is just the amplification of social media? OP's table pretty clearly shows that overturning well-established precedent is just what the Supreme Court does.

Looking at the rulings in that table, the main difference that I see between this court and previous courts is that this is the first time that a conservative court has thrown caution to the wind and started overturning what they see as bad precedent. Typically conservative justices have held themselves to a standard that liberal justices did not, and the Trump era definitely ushered in a set of judges that were done with that double standard.

I'm willing to have a conversation about the merits of the individual rulings (there are some I disagree with!), but that's a separate question from whether this court is doing something that hasn't already been the norm for a century or longer.

My comment had nothing to do with wether or not the Court is being more or less activist. It was about the consequences of some key rulings.

> Abortion

A case ultimately rooted in the legal theory or “emanations from penumbras” in the Constitution.

> fair share union dues

Forcing government employees to pay dues to a private organization they disagree with politically.

> Chevron

Overturning an earlier case that had ruled in favor of an oil company.

> Citizens United

Held that making a political movie about Hilary Clinton was free speech.

> gutting the Voting Rights Act

Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula.

> this week effectively legalizing bribery of government officials

Overturned a conviction for accepting bribes in connection with an official act, where the jury was instructed that it was irrelevant whether the defendant had corrupt intent at the time of the official act.

I don’t know what historians will say about the current Supreme Court. But historians (and journalists) are feelers (in the Meyers Briggs sense), not thinkers. They think in terms of human stories and impacts on people, rather than logical systems. Who cares what feelers think about legal precedents?

You are not engaging in a good fait discussion if you think Citizen's United was just allowing a movie to be made about Hilary Clinton and that it was truly about free speech. It's about the consequences of the rulings and what the ruling said. The consequence of Citizen's United have been very bad for politics. Since Citizen's United outside spending on federal elections has greatly increased as a percent of total spending. Super PAC spending has greatly increased. This ruling was not about free speech.

> gutting the Voting Rights Act Finding that Congress couldn’t impose different voting rights requirements on different states based on a 40 year old formula.

Another example of disingenuous discourse. Thousands of polling stations have closed in the south as a result of the ruling and those closure occurred in areas to disenfranchise black and other undesirable voters. The Voting Rights Act had become so commonly accepted that it passed Congress on its last passage almost without any nay votes. Even die hard conservatives were caught off guard by the courts ruling.

You are not living in reality with these beliefs of yours.

Rayiner has written at length and persuasively about Citizen's United and is, on this issue, clearly engaging in good faith. You disagree with him, which is unsurprising, but not an indication of falsity on his part. If you feel like someone isn't discussing things in good faith with you, the right response is to stop discussing.

Assume good faith

https://news.ycombinator.com/newsguidelines.html

I’m not assuming it was in bad faith. It is a bad faith argument to say that Citizens was merely about allowing a group of people to make a movie about Hilary Clinton.

Do you think he is immune to making bad faith arguments? That he has argued in good faith in the past does not mean he can’t argue in bad faith in the future.

Dred Scott was just about property rights and how the government shouldn’t be allowed to take your property.

Legal precedents are about the facts and law at issue in the case. Courts do not weigh in on larger policy debates in society.

Your suggestion that Dred Scott was “about property rights” and slavery was incidental is blatantly inaccurate. It was a lengthy legal defense of the institution of black slavery as such: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

In your view, what should the Supreme Court have ruled in Citizens United? That movies made through corporate entities aren’t protected by the first amendment?

Courts do not weigh in on larger policy debates in society.

It is entirely naive to think this of SCOTUS decisions in landmark cases. It is naive to think these 9 people are immune to political considerations of their decisions. It’s the legal equivalent of the story we tell children about Washington chopping down the cherry tree. It’s a feel good notion to think that SCOTUS justices don’t weigh in on larger policy debates and this notion has no basis in reality.

SCOTUS is political institution that weighs in on legal and occasionally political matters. It’s a balancing act they must perform if they wish to preserve the integrity of the institution. When they act as they have in recent years the possibility arises that people lose confidence in it and thus erode its power/prestige.

This is true of all institutions that oversee governance of a nation. When things get too out of balance political forces, sometimes in the form of violence, effect the necessary changes to reach a new equilibrium that the populace is sufficiently satisfied with.

It’s also toxic to talk about legal decisions only in terms of the political implications while ignoring the legal ones.

The way you are talking about law bears no resemblance to how law should work. It’s worth zooming out and looking at how constitutional law works in other countries. For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating. For example on Loper: https://balkin.blogspot.com/2023/10/chevron-viewed-from-fran... (“The first point to make here is that in European legal systems, it is the responsibility of the courts to give a definitive interpretation of the law, not the executive, and as a result any such interpretation by the administration (including administrative agencies) is subject to review by courts.”)

Likewise with Dobbs, France’s Macron criticized that decision. But French courts had never recognized some supra-legislative right to abortion, and the European Court of Human Rights had repeatedly declined to overturn Ireland’s and Poland’s abortion bans (despite having a more explicit privacy right to work with).

French courts have similarly refused to intervene to strike down hijab bans. The German high court last year rejected a challenge to Bavaria’s law requiring display of Christian crosses in public buildings. It’s not because those countries don’t have constitutional text that could be interpreted to strike down those laws. It’s because European courts aren’t lawless and for the most part, follow what the law really says instead of distorting it for political considerations.

What you’re advocating for is a departure from international standards that makes us more like a third world country.

It’s because European courts aren’t lawless and for the most part, follow what the law really says instead of distorting it for political considerations.

This might be the case now but won’t be always true. Any institution has to the capacity to try to go rogue so to speak. I don’t know the power of Germany’s high court or what the limits of their powers are or what sort of political forces are at play that those courts must balance. But those decisions certainly had political considerations behind them.

What you’re advocating for is a departure from international standards that makes us more like a third world country.

That departure happened centuries ago with Marbury v. Madison. Politically motivated rulings have occurred ever since. More so than in most countries.

For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating.

I’m not advocating for this. It’s a fact of what the court is. I’m recognizing human nature and the tendency of how humans sometimes act when too much power is given to too few people. Since Marbury v Madison the court became a political institution. Sometimes as a force for good and sometimes as a force for bad.

For 40 years Congress has written regulations with the knowledge and understanding that Chevron was the standard. Now the Court reverses itself. This has huge implications. The dissenting opinions do a much better job than I can on explaining why this decision is garbage. It is now the case that 40 years of laws need to be rewritten and everyone knows that the Republicans are never going to rewrite legislation that can in any way lower corporate profits.

What does Super PAC spending have to do with what the ruling was “about?”

The legal issue in Citizens United was whether the government could punish a non-profit company for making a movie about Hilary Clinton during election season. During the oral argument, the government’s lawyer admitted that the government’s view of the first amendment would authorize the government to ban books.

Look, I think the Supreme Court has gone too far with the first amendment, like holding that stripping is protected speech and communities cannot shut down strip clubs. But making movies critical of political candidates is clearly within the core of protected speech.

And you can’t get around that by focusing on the corporate issue. If corporations don’t have free speech, then when Trump gets elected again in a few months he can legally require Facebook and Google to show its viewers pro-Trump advertisements.

The only principled way to do what you want is to say that the government can impose certain speech restrictions for the good of society. That’s basically what the Europeans do. But that’s exactly the interpretation that liberals spent the entire 20th century fighting against.

What does Super PAC spending have to do with what the ruling was “about?”

The logic used and the wording of the ruling are what are important in SCOTUS decisions. The impact is what matters and the impact was a massive rise in spending by billionaires. It is a well known phenomenon that spending matters in campaigns and allowing a few people to control an outsized amount of that spending is what Citizens United paved the way for.

See my (now buried) comment on cumulative years of precedent overturned using the same source:

https://news.ycombinator.com/item?id=40838536

I think we can both agree that the count of precedents overturned is important, but so is the time something has been established law, as it affects more decisions made by the individuals and the legislature.

in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.

There must be a justification, but the bar isn’t as high as you’re making it out to be. https://www.law.cornell.edu/wex/stare_decisis

> Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U.S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U.S. at 828. "[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.'" Id. at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.'"

I'm sure he'd join you in minimizing the importance of precedent today but my comment was a direct quote of Alito

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