But then it’s all very self-contradictory. How are people supposed to have faith in the court when it makes a decision, reaffirms it many times over nearly 50 years, then just changes its mind on a dime?

The judicial branch has a responsibility to itself for self-consistent reasoning, which it has completely abandoned this term.

The court is not supposed to change dramatically with every election, that’s what the legislative branch does. And yet, the court did.

It’s legal of course, the court can do what it wants. But it can (and has) lost approval and legitimacy, which at the end of the day were it’s most valuable currency.

It doesn't change dramatically with EVERY election, it just changed dramatically with the last one due to a lot of judges retiring/dying off at once. Just a generational phenomenon.

SCOTUS leaned liberal (in the sense that liberal justices tend to believe in larger-scope interpretations of Constitution) for a long time, now for the first time in a while they're leaning conservative (the Constitution says what it says and if we want it to say something different Congress should pass an amendment).

Honestly I find myself falling into the more Conservative camp from a judicial perspective. I'm all for gay marriage and a woman's right to choose, but I feel like we used SCOTUS to do an end-run around Congress to get both at a federal level, and from my layperson's reading the constitutional justifications for both feel stretched to me. In the same sense that you can use creative interpretations of the Bible to justify basically anything, you can do similar things with the Constitution. That isn't how the system is supposed to work

It doesn’t matter what camp you fall into, or if you think the courts decisions in the past were “wrong” (though obviously there is no absolute right or wrong interpreting how a 250 year old document interfaces with modern society).

The court as an institution has a responsibility to maintain some sort of consistency if it wants any legitimacy.

How can people make decisions about where and how to live if their fundamental rights are changing year to year (and most recently being taken away)?

You are also not aligned with the current public opinion. The court is at its lowest approval rating ever, and that is before overturning Roe. If the court cannot maintain it’s appearance of legitimacy then it essentially fails as an institution. The court could have chosen to move more slowly, with more restraint, but it didn’t.

The whole idea of the court is to be above public opinion. This is not the first time in history that the court has made sweeping overturns of previous precedent that large swaths of voters disagreed with. It's also not the first time the legitimacy of those rulings has been challenged. Remember Eisenhower sending the 101st Airborne and federalizing the Arkansas National Guard to enforce integration? Or Kennedy doing similar for Alabama? Those actions were enforcement of a controversial SCOTUS ruling against the local public opinion.

And you can say "yeah but racists were the bad guys", but that's not how any of this works, regardless of what narratives we decide to apply to history after the fact. Did the court's lack of perceived legitimacy in Birmingham or Little Rock (among many other places that required less extreme enforcement) cause it to fail as an institution?

The court only fails as an institution when it's decisions are no longer enforced. Last I checked we haven't reached that point yet. And even if we do, worth remembering SCOTUS survived the last civil war intact.

So your argument is because the court regained hard earned approval in the past it is guaranteed to do so again?

Or the court can function perpetually against the public will?

His argument is that Congress should legislate these issues either through proper laws or constitutional amendments. Turns out 9 judges might disagree with the previous set of 9 judges. That disagreement swings both ways and in the absence of proper legislative action will become the law of the land.

What part of this argument wouldn't apply to Plessy v. Ferguson being overturned by Brown v. Board of Education?

It is rare for the Supreme Court to act as a second Congress. When it has, those are the cases that most likely get overruled. Additionally, old cases with poor and antiquated assumptions get overturned (not relevant here, just showing a consistency in what is and can be expected to be reviewed.)

Opposing sides of that court have said the exact same thing about Roe v Wade. Ruth Bader Ginsberg even said "this is pretty weak, going to need Congress here", no different than Justice Alito on the opposite side.

I think your perspective is very common, I think it is disingenuous for different people that should know better to promote that perspective. There is so much the elected representatives and the people can do. This crisis of confidence perspective relies on nobody actually reading these cases.

RBG argued that RvW was decided poorly but that doesn’t mean there isn’t a constitutional right to abortion. There are other sources that could be used for the right than SDP.

I’m not familiar with the right’s culture or what the SDP is, maybe you had a better point before that

I agree that Congress or the consensus mechanisms of the states are more accurate authorities.

I also agree that it is wildly disruptive to do this. But for that I empathize, and hope to inspire on other ways of consensus making.

Ruth Bader Ginsberg is most certainly not an extreme comparable to Alito, lol.

The Supreme Court has acted as a second Congress for a wide variety of things. This is how miranda rights happened. This is how contraception was legalized. This is how homosexuality was legalized. This is how race integration was legalized. ETC.

Congress better get to work and find a rationale in the articles and a variety of amendments

(As just one, like interstate commerce, will keep it on the chopping block by the same court)

also, currently people need to be challenging laws and the court has to accept those challenges, if there isn’t political will to still challenge those things then the cases will never happen

Congress giving the EPA which is staffed by domain experts the ability to decide how much pollution is acceptable is a good thing actually. Why should congressmen be expected to figure that out?

And the court didn't rule that Congress can't do that, the court ruled that Congress didn't do that. Congress can absolutely go write a law giving the EPA that authority, and they should. But if that's not what the law says, then that's not what the EPA can do.

We can't be opposed to police creatively interpreting laws to target minorities and be okay with the EPA creatively interpreting laws to target fossil fuel companies. Just because the latter is in the service of a good cause doesn't make it legal. The ends do not justify the means--down that way lies peril.

The police have decided that the best way to fight crime is to track my phone and every text message at every time. After all, they are the experts!

> Protester: "6 unelected officials can't decide what I can do!"

> Supreme Court: "That's literally what we just said!"

Bullshit. The court was perfectly happy telling millions of people they had no right to an abortion. They’re just a bunch of partisan hacks

Please don't cross into flamewar like this. It's not what this site is for, and it destroys what it is for.

Even in a divisive thread like this one, your comment here stands out as breaking the site guidelines. Would you mind reviewing them and sticking to the rules when posting here? We'd be grateful.

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

I'm fully pro-abortion but I have to admit Roe's legal argument was a big stretch at best. Even RBG admitted so. I wish they'd have left it alone but moreso I wish congress made any attempt in 50 years to codify it into law.

>The court was perfectly happy telling millions of people they had no right to an abortion.

This is not what happened at all. They ruled against the federal government's ability to regulate it.

No, wrong. Incorrect. Roe v Wade was explicitly a ruling saying that abortion should be broadly allowed, and that no government (neither state nor federal) can regulate it (with caveats). Overturning Roe v Wade has given that power back to the state government and to the federal government.

None of this had anything to do with the federal government regulating it. It was the court saying it was a right not to be infringed upon.

>It was the court saying it was a right not to be infringed upon.

Roe v Wade was ruled on the basis of the 14th amendment due process clause regarding the right to privacy. Anyone who thought this ruling was an iron-clad blanket right to abortion was fooling themselves.

Abortion is not specifically enumerated in the constitution. Just like everything else not in the constitution, it's up to States to make their own laws regarding it.

Dobbs effectively have full control to the states. Unless the federal government can make a commerce clause argument any law they make prohibiting/legalizing abortion will be overturned due to the 10th amendment.

Specifically, the Supreme Court took power from women and gave it “back” to the government

that is a very popular perspective, which reinforces exactly what I said about it being too complicated for people.

Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.

Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.

Again I call bullshit. There’s no way in a million years these same clowns would apply the same logic to gun control. This is all just motivated reasoning because the court wants to advance a conservative agenda

Good point. It's interesting to think about this outsourcing as a relief valve Congress uses. Feels like a function of the monetary stakes for any decision are too high. Even freshmen congressional reps are too soaked in the financial implications of their own function that they punt their appointed power to the judicial branch.

We detached this comment from https://news.ycombinator.com/item?id=31933692.

That is the job of the Congress. They are derelict in their duties. Even RGB said the decision was based on shaky arguments.