Thank you for starting with the observation that feelings are a terrible guide to reality. If only people would quit relying on feelings instead of reality, maybe our times wouldn’t feel so fraught (pun intended).
Good follow-up! Per the Library of Congress’ database of laws struck down by the Supreme Court (https://constitution.congress.gov/resources/unconstitutional-laws/), the Roberts Court has struck down 31 federal laws and 40 state/local laws/ordinances in whole or in part since 2005. The Rehnquist Court struck down 30 federal laws and 105 state/local laws/ordinances between 1986 and 2005.
I don't know. It's one thing to overturn precedent that says Black people aren't human and women can't vote. It's a whole other thing to overturn precedent that says Black people ARE human and women CAN vote
Those are extreme examples, but my point is they are overturning RIGHTS we have enjoyed for 50 years or more. Not some benign precedent made in 1812 about owners of horses having to clean up after their horses.
It would be far more difficult to assess the qualitative aspects of how each court breaks precedent. This court does seem headed in "the wrong direction" on many important issues. But Gabe's observation and data indicating how court opinions contradict themselves from one era to another is interesting, and unsettling. We like to think of SC opinions as representing a philosophical foundation for law-making, instead of a careening trip through time based on the subjectivities of nine old people assembled by circumstance. In the long run, it's both, but you know what else they say (or at least JMK) about the long run...
Apologies if this comes off as pedantic, but casualties of a war include not just deaths but also the injured and MIA. 17 is the number of service members killed in action. Casualties are closer to 600 from what I've read.
Excellent stack. Thanks for explaining to the TDS crowd that certain decisions by the current administration and the Supreme Court are far from unprecedented.
They are actually, in that a lot of the justification is quite questionable.
I have my own issues with Roe, but fundamentally what changed in Dobbs is just who is on the court, or the Justice's personal political opinions in Slaughter. It wasn't that a novel argument was used, or there was a clear problem from the earlier precedent, it just isn't something American Conservatives like.
There isn't really any sane appeal to there being novel information being presented to the court, vs the court just having people with different opinions on it, or the court making straight-up judgement calls that clearly echo political lines.
Somehow, for example, Congress making a whole bunch of executive agencies isn't enough to be a reliance interest? Which is just kinda fucking nuts.
Dobbs v Jackson is very questionable. Not only in terms of legal precedents but in terms of its interpretations of the Constitution. Curiously, it doesn't adhere well to the five principles of removing stare decisis, yet the Roberts court allowed it anyway. The crux of the majority ruling was that Roe incorrectly argued the Constitution provides Americans with a constitutional "Right to Privacy" when it does not. Most Americans would disagree. Moreover ignoring 50 years of legal precedents and subsequent laws is surprising. No doubt laws legalizing gay marriage is next, Thomas has already stated as much
First Amendment. Protects freedom of speech, religion, association, and belief. The Supreme Court reasoned that freedom to associate necessarily implies a degree of privacy. Third Amendment. Prohibits the quartering of soldiers in private homes without consent. This reflects the Founders' concern the privacy of one's home should be protected from government intrusion. Fourth Amendment. Protects people against unreasonable searches and seizures. Explicitly recognizes that individuals have a protected "private sphere" (their persons, houses, papers, and effects). Fifth Amendment
Protects against compelled self-incrimination and guarantees due process (personal privacy regarding one's thoughts and communications).
Ninth Amendment. Imo the strongest textual basis for privacy rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Fourteenth Amendment
Provides that no state shall deprive any person of "life, liberty, or property, without due process of law.". The Supreme Court have already interpreted "liberty" to include certain fundamental personal decisions including marriage, family, child-rearing, contraception (Griswold v. Connecticut)
Don't tell me what the Supreme Court “reasoned”. You can't show me specific language from the Constitution because there isn't any privacy, and certainly not abortion. That's why the current SCOTUS reasoned that Roe was unreasonable.
How does the Shadow Docket factor into this? Because this SCOTUS overturns a lot of precedent via the shadow docket without actually overturning the precedent. They make implementing precedent "all but a dead letter."
As Gabe and others have noted, "overturning" precedent vs. narrowing precedent to a near or totally nullity (by confining it to its facts in repeated subsequent decisions) is swishy. The story I tell myself is that the Warren and Burger Courts were not much into "judicial restraint" as a value. That started to change with the Rehnquist Court, where the Federalist Society which then and seemingly far less now advocated for judicial restraint as a guiding principle. (You can see that impulse in the Chief Justice's Dobbs concurrence in the judgement.) I think Thomas, Alito, and (most of the time) the Trump appointees don't value judicial restraint, but, having grown up in Fed Soc land, need to pretend they do. So my gut tells me that all the Courts from Warren until now likely overturn precedent at the same rate.
The question is whether the Court saying it overturns precedent matters. And I think it does. I think there are two main reasons that the Court's approval rating is so low: many of its decisions are out of step with public opinion and the public correctly intuits that the Court is not truthful.
Perhaps so, but they are maximising the power of the executive at the very time when we happen to have the most corrupt and self-aggrandising executive in history.
First Amendment. Protects freedom of speech, religion, association, and belief. Supreme Court has reasoned this necessarily implies a degree of privacy in one's personal relationships and political affiliations. Third Amendment
Prohibits the quartering of soldiers in private homes without consent. This reflects the Founders' concern of the privacy of one's home should be protected from government intrusion. Fourth Amendment. Protects people privacy against unreasonable searches and seizures. That there is a protected "private sphere". Fifth Amendment. The privilege against self-incrimination preserves a measure of personal privacy for one's thoughts and communications. Ninth Amendment, imo the strongest textual basis. That "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Fourteenth Amendment, which Blackmun used to justify Roe. No state shall deprive any person of "life, liberty, or property, without due process of law." It should be noted that ruling for Roe relied upon earlier case recognizing the Constitutional privacy in marriage and contraception (Griswold v. Connecticut)
Thank you for starting with the observation that feelings are a terrible guide to reality. If only people would quit relying on feelings instead of reality, maybe our times wouldn’t feel so fraught (pun intended).
Okay, so I guess a separate question is, how often has this Court ignored, overridden, or struck down federal or state laws compared to others?
Good follow-up! Per the Library of Congress’ database of laws struck down by the Supreme Court (https://constitution.congress.gov/resources/unconstitutional-laws/), the Roberts Court has struck down 31 federal laws and 40 state/local laws/ordinances in whole or in part since 2005. The Rehnquist Court struck down 30 federal laws and 105 state/local laws/ordinances between 1986 and 2005.
Thank you!! Very interesting. Reformatting for clarity:
Roberts, 21 years, 31 federal laws and 40 state/local laws/ordinances in whole or in part
Rehnquist, 19 years, 30 federal laws and 105 state/local laws/ordinances
I don't know. It's one thing to overturn precedent that says Black people aren't human and women can't vote. It's a whole other thing to overturn precedent that says Black people ARE human and women CAN vote
Those are extreme examples, but my point is they are overturning RIGHTS we have enjoyed for 50 years or more. Not some benign precedent made in 1812 about owners of horses having to clean up after their horses.
It would be far more difficult to assess the qualitative aspects of how each court breaks precedent. This court does seem headed in "the wrong direction" on many important issues. But Gabe's observation and data indicating how court opinions contradict themselves from one era to another is interesting, and unsettling. We like to think of SC opinions as representing a philosophical foundation for law-making, instead of a careening trip through time based on the subjectivities of nine old people assembled by circumstance. In the long run, it's both, but you know what else they say (or at least JMK) about the long run...
Apologies if this comes off as pedantic, but casualties of a war include not just deaths but also the injured and MIA. 17 is the number of service members killed in action. Casualties are closer to 600 from what I've read.
Excellent stack. Thanks for explaining to the TDS crowd that certain decisions by the current administration and the Supreme Court are far from unprecedented.
They are actually, in that a lot of the justification is quite questionable.
I have my own issues with Roe, but fundamentally what changed in Dobbs is just who is on the court, or the Justice's personal political opinions in Slaughter. It wasn't that a novel argument was used, or there was a clear problem from the earlier precedent, it just isn't something American Conservatives like.
There isn't really any sane appeal to there being novel information being presented to the court, vs the court just having people with different opinions on it, or the court making straight-up judgement calls that clearly echo political lines.
Somehow, for example, Congress making a whole bunch of executive agencies isn't enough to be a reliance interest? Which is just kinda fucking nuts.
Dobbs v Jackson is very questionable. Not only in terms of legal precedents but in terms of its interpretations of the Constitution. Curiously, it doesn't adhere well to the five principles of removing stare decisis, yet the Roberts court allowed it anyway. The crux of the majority ruling was that Roe incorrectly argued the Constitution provides Americans with a constitutional "Right to Privacy" when it does not. Most Americans would disagree. Moreover ignoring 50 years of legal precedents and subsequent laws is surprising. No doubt laws legalizing gay marriage is next, Thomas has already stated as much
Please provide a textual reference to the right to privacy granted by the Constitution.
First Amendment. Protects freedom of speech, religion, association, and belief. The Supreme Court reasoned that freedom to associate necessarily implies a degree of privacy. Third Amendment. Prohibits the quartering of soldiers in private homes without consent. This reflects the Founders' concern the privacy of one's home should be protected from government intrusion. Fourth Amendment. Protects people against unreasonable searches and seizures. Explicitly recognizes that individuals have a protected "private sphere" (their persons, houses, papers, and effects). Fifth Amendment
Protects against compelled self-incrimination and guarantees due process (personal privacy regarding one's thoughts and communications).
Ninth Amendment. Imo the strongest textual basis for privacy rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Fourteenth Amendment
Provides that no state shall deprive any person of "life, liberty, or property, without due process of law.". The Supreme Court have already interpreted "liberty" to include certain fundamental personal decisions including marriage, family, child-rearing, contraception (Griswold v. Connecticut)
Don't tell me what the Supreme Court “reasoned”. You can't show me specific language from the Constitution because there isn't any privacy, and certainly not abortion. That's why the current SCOTUS reasoned that Roe was unreasonable.
How does the Shadow Docket factor into this? Because this SCOTUS overturns a lot of precedent via the shadow docket without actually overturning the precedent. They make implementing precedent "all but a dead letter."
As Gabe and others have noted, "overturning" precedent vs. narrowing precedent to a near or totally nullity (by confining it to its facts in repeated subsequent decisions) is swishy. The story I tell myself is that the Warren and Burger Courts were not much into "judicial restraint" as a value. That started to change with the Rehnquist Court, where the Federalist Society which then and seemingly far less now advocated for judicial restraint as a guiding principle. (You can see that impulse in the Chief Justice's Dobbs concurrence in the judgement.) I think Thomas, Alito, and (most of the time) the Trump appointees don't value judicial restraint, but, having grown up in Fed Soc land, need to pretend they do. So my gut tells me that all the Courts from Warren until now likely overturn precedent at the same rate.
The question is whether the Court saying it overturns precedent matters. And I think it does. I think there are two main reasons that the Court's approval rating is so low: many of its decisions are out of step with public opinion and the public correctly intuits that the Court is not truthful.
I think it is necessary to separate the court from Trump They are acting on their own beliefs and interpretations
Perhaps so, but they are maximising the power of the executive at the very time when we happen to have the most corrupt and self-aggrandising executive in history.
Stare decisis is found in English Common Law
First Amendment. Protects freedom of speech, religion, association, and belief. Supreme Court has reasoned this necessarily implies a degree of privacy in one's personal relationships and political affiliations. Third Amendment
Prohibits the quartering of soldiers in private homes without consent. This reflects the Founders' concern of the privacy of one's home should be protected from government intrusion. Fourth Amendment. Protects people privacy against unreasonable searches and seizures. That there is a protected "private sphere". Fifth Amendment. The privilege against self-incrimination preserves a measure of personal privacy for one's thoughts and communications. Ninth Amendment, imo the strongest textual basis. That "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Fourteenth Amendment, which Blackmun used to justify Roe. No state shall deprive any person of "life, liberty, or property, without due process of law." It should be noted that ruling for Roe relied upon earlier case recognizing the Constitutional privacy in marriage and contraception (Griswold v. Connecticut)