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Re:Justice Clarence Thomas uncovered a seven-year-old bug in... by rayiner on Friday April 01, 2022 @04:16PM (#30882839)
I'm going to push back on this. Judging is somewhat subjective, sure. But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago. In Obergefell, the U.S. Supreme Court determined that the implied right to marriage in the U.S. Constitution conferred a right to same-sex marriage. A year later, the European Court of Human Rights reached the exact opposite conclusion about the express right to marriage in Article 12 of the European Convention on Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In another example, in the 1970s, when many high courts took up the question of abortion, the U.S. Supreme Court was the only one to determine there was a Constitutional right to abortion. Canada, France, Italy, etc., all found that it was a matter for the legislature. There is no high court in any country that intervenes on social questions as much as the U.S. Supreme Court.

In my opinion, the degree to which judging is subjective and ideological is overstated in order to support a level of judicial interventionism on the part of the U.S. Supreme Court that is quite unusual in developed countries. Go read German or Dutch high court opinions--they are a lot drier!

Re:Justice Clarence Thomas uncovered a seven-year-old bug in... by dragonwriter on Saturday April 02, 2022 @11:17AM (#30888843)
> But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.

Most countries have something closer to a civil law as opposed to common law basic system; and most of the ones that have a common law system also have parliamentary sovereignty as part of their Constitutional order, whether or not they have an actual written Constitution; this doesn't really change the basic subjectivity of legal decisionmaking, but the combination of a common law tradition which frames interpretation of the Constitution and the absence of parliamentary sovereignty gives the US Supreme Court more scope than most high courts have to start with, and more scope naturally means more room for subjectivity to manifest.

Re:Justice Clarence Thomas uncovered a seven-year-old bug in... by Tomte on Friday April 01, 2022 @10:29PM (#30885392)
> For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.

Germany's constitutional court also does so from time to time, unfortunately.

Decades ago they invented a right to "informational self-determination" that has no textual basis in the constitution.

It's a good right to have. I understand why they felt compelled to do so.

But every time the court decides something like this they have to demarcate the borders, where it applies and where not. In doing so so they draw red lines that the political process can hardly overcome, even if it might have yielded a better end result by giving the edges a little different form.

Last year our court invented a right to school education, again without textual basis.

Re:Justice Clarence Thomas uncovered a seven-year-old bug in... by rayiner on Friday April 01, 2022 @11:08PM (#30885551)
The nice thing about German constitutional jurisprudence is that there’s an explicit recognition and functional balancing of competing rights and societal interests. This tends to cut both ways from the perspective of American politics. Religious interests and the right to life get robust consideration, but at the same time individual free speech and economic rights aren’t treated as a trump card against societal interests.