Re:Law firms pay Supreme Court clerks $400k bonuses – what a...
by nickff on Sunday September 27, 2020 @05:06PM
(#24610127)
I think you make a good point about justices existing along a spectrum of adherence to methodologies, but I think some judges and justices also choose to avoid the main issue when the 'heuristics' are at odds with their principles. The most obvious example of a serial-parrier is the current chief.
Re:Law firms pay Supreme Court clerks $400k bonuses – what a...
by raincom on Sunday September 27, 2020 @07:35PM
(#24611146)
Richard Posner is very upfront: he first decides, then finds rationale for that decision. Of course, the judge's role is to pick one decision among a range of possible decisions. As long as there is a section of public who supports that decision, all rationale judges provide make it appear non-arbitrary. This kind of explains why the same court ruled in opposing ways wrt segregation, etc.
In natural sciences, a theory is a set of hypotheses, along with their logical consequences with the aid of auxiliary theories. This is not what judges to. They have a set of meta-principles(originalism, textualism, precedent, etc) and heuristics (for reasonableness, fairness, etc). They use them to come at a decision they favor. The difference between a Breyer and a Scalia is the way they assign weights to these heuristics and meta-principles to favor their decisions.