The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy, and is now one of the chief architects of America’s democratic decline.
The fact that someone inside the Court’s very small circle of trust apparently decided to leak a draft opinion is likely to be perceived by the justices, as SCOTUSBlog tweeted out Monday night, as “the gravest, most unforgivable sin.”
To this I say, “good.” If the Court does what Alito proposed in his draft opinion, and overrules Roe v. Wade, that decision will be the culmination of a decades-long effort by Republicans to capture the institution and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.
And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Justice Alito, the author of the draft opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.
This behavior, moreover, is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.
Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.
The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.
Good summation. How broken is the United States if the only way it changes is through the opinions of nine unelected god-judges? Get rid of it.
There have only been three justices in American history who were appointed by a president who lost the popular vote, and who were confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court right now, and all three were appointed by Donald Trump.
[...]
Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.
Good summation.
How broken is the United States if the only way it changes is through the opinions of nine unelected god-judges? Get rid of it.
I wonder if most people have the wrong idea about what courts do, and maybe if I do too. It seems to me fitting for the judiciary to have technically conservative and reactionary biases. Presently...
I wonder if most people have the wrong idea about what courts do, and maybe if I do too.
It seems to me fitting for the judiciary to have technically conservative and reactionary biases.
Presently I think of our system of laws as the software for our society, and the role of the courts as the computer to read and interpret its code into something executable. But it's up to society and its elected representatives to write that code.
In the present code, as established by Roe vs. Wade, the Fourteenth Amendment's Due Process Clause's right to privacy provides the legal basis for protection against government interference in abortions. Disregarding political persuasion and moral fact, grounding the right to abortion in privacy rights seems legally weak, see supporters of abortion rights but opponents to Roe.
Personally I'm a supporter of the right to abortions, and I think the outcome of the overturning of Roe vs. Wade will be gravely harmful to society as it'll harm women's health and exacerbate poverty and hinder social development in the poorest parts of the country.
But I think this also raises in me deeply uncomfortable and politically existential questions about what society wants the role of the judiciary to be vs. what it should, whether it should try to decide what's moral vs. what's technically lawful — granted there'll never be a clean separation and always a great deal of overlap given human nature.
I've never been particularly interested in judicial interpretation until I realized how much law parallels software and how the problems in law bear striking resemblance to problems in software.
This metaphor of law as code comes up a lot on the internet, but it's wrong and it's not helpful for understanding the system. Law is not code, it is explicitly intended to be interpreted by...
Exemplary
This metaphor of law as code comes up a lot on the internet, but it's wrong and it's not helpful for understanding the system. Law is not code, it is explicitly intended to be interpreted by humans, because there is no alternative. It's not possible to write a law that anticipates every possible scenario, that's why we write relatively vague laws and involve humans (police, DAs, judges, juries) at every step of the process.
Consider Pace v. Alabama, the 1883 decision that unanimously upheld anti-miscegenation laws, and Loving v. Virginia, the 1967 unanimous decision that struck them down. Both cases were decided based on the 14th amendment. What changed in those 84 years? The "code" didn't change - the laws under consideration were basically the same, and the 14th amendment certainly didn't change. Both decisions were written by smart people, and if you try to read them from some kind of "objective" legal viewpoint, I'd argue they're both fairly convincing. But they can't both be right.
What changed is the human beings involved - the judges and the society they live in. This is intentional, and the Constitution and most laws are vague on purpose. Look at the 1st amendment for example: almost every single word is vague and up to interpretation. Can you give me an objective definition for any of these: "establishment of religion", "religion", "free exercise", "abridging", "speech", "the press", "peaceably", "assemble", "petition". You can't, and you aren't supposed to be able to. It's supposed to change, it's supposed to be flexible. If they had listed which religions count and which publishers are considered press and what actions are considered peacable then it would have been useless within a month.
Law is not code, it is a tool for our society to organize and regulate itself. Laws are not universally applied - you shouldn't get a speeding ticket for drifting 1 MPH over the limit for 10 seconds. Police and DAs have broad latitude about deciding when to enforce any particular law, and that's the way it should be. Sentences vary wildly and often consider a plaintiff's history and background. This is a good thing. You can't write code that considers mysterious concepts like a person's intentions and "state of mind" but we can and should write laws like that. You can't write code if you don't know what compiler will be used and what CPU it will be run on, but that's the way laws are written. Reflect for a moment on why Supreme Court decisions are called "opinions", and why computer outputs are not.
I think the bigger problem is that many people feel like rights need to be codified or they don't exist. Abortions should be legal under the right of self-determination. End of discussion. Maybe...
I think the bigger problem is that many people feel like rights need to be codified or they don't exist.
Abortions should be legal under the right of self-determination. End of discussion. Maybe someday when bio men can carry babies to term they can have the "it's baby murder" discussion.
Good summation.
How broken is the United States if the only way it changes is through the opinions of nine unelected god-judges? Get rid of it.
I wonder if most people have the wrong idea about what courts do, and maybe if I do too.
It seems to me fitting for the judiciary to have technically conservative and reactionary biases.
Presently I think of our system of laws as the software for our society, and the role of the courts as the computer to read and interpret its code into something executable. But it's up to society and its elected representatives to write that code.
In the present code, as established by Roe vs. Wade, the Fourteenth Amendment's Due Process Clause's right to privacy provides the legal basis for protection against government interference in abortions. Disregarding political persuasion and moral fact, grounding the right to abortion in privacy rights seems legally weak, see supporters of abortion rights but opponents to Roe.
Personally I'm a supporter of the right to abortions, and I think the outcome of the overturning of Roe vs. Wade will be gravely harmful to society as it'll harm women's health and exacerbate poverty and hinder social development in the poorest parts of the country.
But I think this also raises in me deeply uncomfortable and politically existential questions about what society wants the role of the judiciary to be vs. what it should, whether it should try to decide what's moral vs. what's technically lawful — granted there'll never be a clean separation and always a great deal of overlap given human nature.
I've never been particularly interested in judicial interpretation until I realized how much law parallels software and how the problems in law bear striking resemblance to problems in software.
This metaphor of law as code comes up a lot on the internet, but it's wrong and it's not helpful for understanding the system. Law is not code, it is explicitly intended to be interpreted by humans, because there is no alternative. It's not possible to write a law that anticipates every possible scenario, that's why we write relatively vague laws and involve humans (police, DAs, judges, juries) at every step of the process.
Consider Pace v. Alabama, the 1883 decision that unanimously upheld anti-miscegenation laws, and Loving v. Virginia, the 1967 unanimous decision that struck them down. Both cases were decided based on the 14th amendment. What changed in those 84 years? The "code" didn't change - the laws under consideration were basically the same, and the 14th amendment certainly didn't change. Both decisions were written by smart people, and if you try to read them from some kind of "objective" legal viewpoint, I'd argue they're both fairly convincing. But they can't both be right.
What changed is the human beings involved - the judges and the society they live in. This is intentional, and the Constitution and most laws are vague on purpose. Look at the 1st amendment for example: almost every single word is vague and up to interpretation. Can you give me an objective definition for any of these: "establishment of religion", "religion", "free exercise", "abridging", "speech", "the press", "peaceably", "assemble", "petition". You can't, and you aren't supposed to be able to. It's supposed to change, it's supposed to be flexible. If they had listed which religions count and which publishers are considered press and what actions are considered peacable then it would have been useless within a month.
Law is not code, it is a tool for our society to organize and regulate itself. Laws are not universally applied - you shouldn't get a speeding ticket for drifting 1 MPH over the limit for 10 seconds. Police and DAs have broad latitude about deciding when to enforce any particular law, and that's the way it should be. Sentences vary wildly and often consider a plaintiff's history and background. This is a good thing. You can't write code that considers mysterious concepts like a person's intentions and "state of mind" but we can and should write laws like that. You can't write code if you don't know what compiler will be used and what CPU it will be run on, but that's the way laws are written. Reflect for a moment on why Supreme Court decisions are called "opinions", and why computer outputs are not.
I think the bigger problem is that many people feel like rights need to be codified or they don't exist.
Abortions should be legal under the right of self-determination. End of discussion. Maybe someday when bio men can carry babies to term they can have the "it's baby murder" discussion.
Your metaphor is overly simplistic, but if we were to stick with it, the executive is the hardware, and the judiciary is a debugger.