Supreme Court Poll

[vcczar]

new poll

[Dobs]

I think Questions 5 and 6 probably miss the mark of the real substance of what we're talking about. The perceived "partisanship and ideology" of a given judge is really only incidental to the exercise of their office.

I think brilliant legal minds like Clarence Thomas, Antonin Scalia, Ruth Bader Ginsburg, Neil Gorsuch, Louis Brandeis, Oliver Wendell Holmes, and  William O. Douglas should be expected to have opinions about how the law should be interpreted. Jurisprudence is not the same thing as a political ideology, even if it is all too often, and maddeningly, conflated as such. Those Justices are not just good for the court, they are essential. They make the court better when there is an exchange of sharply contrasting legal theories to arrive at the best picture of what the law actually says. That is their task, to read law, not enact policy.

So I shudder at the last part of my answer to Question 5, because AOC and MTG clones would be disastrous for the court. But that's because neither of them are brilliant legal minds or even just brilliant minds. For that matter, the two of those turkeys barely qualify as "minds."

And of course, open partisanship is different from jurisprudential ideology, and so if a partisan affiliation got in the way of the administration of justice, I would support consequences, which informed my answer to Question 6. But I don't think we've gotten even close to that becoming a real concern with any justice in recent memory. The media likes to spin stories and they love to misrepresent the mission and makeup of the Court.

Edited July 1 by Dobs

[vcczar]

3 minutes ago, Dobs said:

And of course, open partisanship is different from jurisprudential ideology

I don't think this is really true anymore as they've at least overlapped considerably. I think partisanship has merged with ideology. I can't think of a single "living constitution" leaning judge that isn't a Democrat (if they aren't independent) or a single "dead constitution" leaning judge that isn't a Republican (if they aren't independent). 

 

[vcczar]

For selecting SC justices, I think Judicial Senate Committee will pick 5 Democratic Senators and 5 Republican Senators who will each pick a Federal Judge for a panel to select the new SC justice when a vacancy occurs. This panel of 10 justices will one-by-one remove the name of a federal judge from consideration until only 1 federal judge remains. That one will become the new justice. Alternatively, they can do this until 10 justices remain on the list and then the president picks one of those judges. Theoretically, the agreed upon judge should be a swing judge or moderate each time, unless they evolve in office.

I also think the Chief Justice title should go to a new SC Justice every time a new president is elected. 

 

[Dobs]

6 minutes ago, vcczar said:

I don't think this is really true anymore as they've at least overlapped considerably. I think partisanship has merged with ideology. I can't think of a single "living constitution" leaning judge that isn't a Democrat (if they aren't independent) or a single "dead constitution" leaning judge that isn't a Republican (if they aren't independent). 

 

That's a very binary way to look at jurisprudence, and far from the only way that the Court has to consider law. Remember, a lot of what the Court does doesn't even involve the Constitution, it's just statutory interpretation. The doctrine of Constitutional Avoidance makes sure of that.

Textualism is not the same thing as Originalism is not the same thing as Purposivism is not the same thing as Natural Law Theory is not the same thing as Living Instrumentalism is not the same thing as Formalism is not the same thing as Strict or Loose Constructionism... and I could go on and I haven't even begun to list the subcategories in these schools of thought.

The bottom line is that interpreting law is a lot more complex than making it and votes cast on the Supreme Court can't be thought of as the same way we conceive a party-line vote in the Senate on tax policy, it's far more academic, collaborative, and esoteric.

The court is not a partisan institution and really has not shown any signs of becoming one. The selection process is, of course, inherently partisan. But beyond that, the Court has done an excellent job insulating itself from that trend and producing quality legal product throughout American history, with an understanding that there have been particularly glaring miscarriages of justice and the Court is by no means perfect.

[vcczar]

2 minutes ago, Dobs said:

That's a very binary way to look at jurisprudence, and far from the only way that the Court has to consider law. Remember, a lot of what the Court does doesn't even involve the Constitution, it's just statutory interpretation. The doctrine of Constitutional Avoidance makes sure of that.

Textualism is not the same thing as Originalism is not the same thing as Purposivism is not the same thing as Natural Law Theory is not the same thing as Living Instrumentalism is not the same thing as Formalism is not the same thing as Strict or Loose Constructionism... and I could go on and I haven't even begun to list the subcategories in these schools of thought.

The bottom line is that interpreting law is a lot more complex than making it and votes cast on the Supreme Court can't be thought of as the same way we conceive a party-line vote in the Senate on tax policy, it's far more academic, collaborative, and esoteric.

The court is not a partisan institution and really has not shown any signs of becoming one. The selection process is, of course, inherently partisan. But beyond that, the Court has done an excellent job insulating itself from that trend and producing quality legal product throughout American history, with an understanding that there have been particularly glaring miscarriages of justice and the Court is by no means perfect.

I guess once response to the partisan question is this: How many times has Clarence Thomas sided with liberals when the majority of conservatives did not? I mean everything is bound to happen once, but I think if Thomas (or a liberal analogy) is voting with other ideologically similar justices and not against those justices about 8 or 9 times out of 10, then in my opinion it is partisan. I think both Thomas and RBG are (was for RBG) political judges, they aren't (weren't) going to rule in a way that contradicts the conservative or liberal base of voters respectively. That's my issue when ruling on cases that have a partisan divide. I think the only SC Justice that doesn't rule 75%+ with their "party" is the Chief Justice. The next closest swing is probably Kavanaugh, but he's probably still at 75-85%. I think Barrett is surprisingly the next swingish judge at 85-90%. I think all the rest are 90%+. 

[ConservativeElector2]

The only change I'd advocate for is that the most senior justice becomes acting Chief Justice in the event of the CJ's death or resignation. I think the office of CJ, should never be vacant. The president could later decide to keep the acting CJ, name another sitting Justice to become CJ or appoint a new person as CJ.

[10centjimmy]

Here's a wild idea that won't happen:

1. Vacate the current court entirely.  They are ineligible to rejoin the court. 

2. Senate Judiciary Committee will develop a set of rules to govern ethics, restrictions on political participation, and public comments. As the current court seems to operate without oversight, a senate-approved board should be put in place to audit contributions and gifts, as well as vote on whether justices should step away from cases that are potential conflicts of interest. 

3. The board, 11 member, should be made up of representatives in good standing of the ABA or university law schools. 

4. This board will put together a list of 51 eligible jurists.

5. The Senate Judiciary shall nominate 4 members (2 democrats and 2 Republicans) to join former Chief Justice John Roberts and Associate Justice Sonya Sotomayor to select 7 jurists from the list of 51. Ties are only broken after all members have been reviewed, then final ties are broken by President nomination and confirmation by the 2/3 vote of full Senate. If not approved, then next nominee is voted on. If still no consensus, then the jurist panel selects 2 additional potential justices who will serve along with the other approved justices for 12 years. 

6. Justices, once approved, select from their number (either 7 or 9) a chief Justice, who then numbers the remainder 6 or 8 in groups of 2. These terms will last for 12 years and cannot be renominated. The chief Justice term expires with group 1. Group 1 expires in 2029, group 2 in 2032, group 3 in 2035, and group 4 (if exists) in 2038.  One chief Justice has stepped down, a new one is chosen by an internal vote. 

 

So. New court. New system of rules to govern them by an independent oversight committee. And then term limits.

[pilight]

The Supreme Court shouldn't be a standing court at all.  Every year randomly select one judge from each circuit.  Those selected will serve as the Supreme Court for that year.  When their term is over they return to their circuit.  Once a judge serves on the SC they can't be chosen again for a few years.

The court would have more consistency as judges would be far less likely to overturn established precedents and cases would be heard by a different panel than the one that granted certiorari, reducing partisan decisions.

[Rezi]

[MrPotatoTed]

The Supreme Court right now sucks.  
 

But the Supreme Court over the span of history has generally trended toward the positive.  So I’d be resistant to finding permanent solutions to a temporary problem.

[vcczar]

22 minutes ago, MrPotatoTed said:

The Supreme Court right now sucks.  
 

But the Supreme Court over the span of history has generally trended toward the positive.  So I’d be resistant to finding permanent solutions to a temporary problem.

How do you know it’s temporary? I hope you’re right, but we are dealing with some historically new things.   I can’t be that optimistic. 

[MrPotatoTed]

7 minutes ago, vcczar said:

How do you know it’s temporary? I hope you’re right, but we are dealing with some historically new things.   I can’t be that optimistic. 

We’re not upset with how the Supreme Court works — none of that has changed.  We’re upset with who is currently on the Court.  But people are, by definition, temporary.

[vcczar]

2 hours ago, MrPotatoTed said:

We’re not upset with how the Supreme Court works — none of that has changed.  We’re upset with who is currently on the Court.  But people are, by definition, temporary.

I’ve had issues with the court system since 2005ish when I first began paying attention to it. 

[Blockmon]

the intent of the Constitution was to change over time. Even the founding fathers have stated that Constitution was probably to change multiple times, the original intent is a bad doctrine as it opposes change. If you follow the original intent of the constitution then you have to abandon all of the changes in the USA, if you believe in American Conservatism and the Republican Party; then you oppose one of the biggest statements established by this ideology and party. That Government which also includes states and the supreme court should not take away the rights of any person no matter what they look like or how they live. The idea that rights not established by Constitution, are protected by the 9th Amendment but which are higher than others is what should Supreme Court establish. EX the current case of web designer not accepting service due to personal reasons is one example where the court got it correct, the freedom of expression and speech take higher precedence than the right to consume as that is a 9th Amendment right not protected by a different amendment that would establish it in writing.

This can be brought in different ways, for example, segregation breaks the right of property in 4th and 5th amendment, literacy test in polls break the rights of expression and petition as voting is a form of that, and gun rights are a protected right and normal citizen should have right to have access to them for right reasons but the need for gun control and especially blockage of access to guns to dangerous folks as they could have the chance to tear away a person's right to life,liberty and property are dangerous. In general, the doctrine of originalism doesn't work as it is unconstitutional to bring the USA back to where it was 200 years ago, change is natural and will happen as technology and progress expand. 

I support a both reform and expansion of the supreme court, I do not trust that a body that intends to bring us to age of past won't just take my rights either being gun rights, freedom of speech, or most important rights of all, happiness. Anyways I don't really care as long supreme court still allows states to have the laws that I seek, any step in a way where it bring blockage to a change in the state and removes rights of people then its a problem way bigger than "oh its fine, just live where you want those laws".

[Dobs]

4 hours ago, Blockmon said:

the intent of the Constitution was to change over time.

You might argue that the intent of certain founders was to reflect widespread generational change in the Constitution and in law, and indeed, largely, both have done so. When the nation has convulsed in ways that reflect the need for federalized reform, it has delivered us the Reconstruction Amendments, Women's Suffrage, the elimination of the Poll Tax, and more. Tocqueville described those great convulsions as "changes in the national spirit and character," which is the kind of fundamental change necessary to compel a change to the document which fundamentally binds the government from corner to corner. We are, at base, a federal system. This is why it is, and should be, so difficult to bind a change to the entire nation, when those changes can be affected much more easily by those that want them the most in their given subdivisions.

But certainly, the document itself has no intention to change itself. This is why the Amendment process is so difficult. To change the Constitution and bind all states requires broad, broad support.

Remember, the federal government was never supposed to do nearly as much as it does now, so most of the big questions were intended to be handled at the state level.

4 hours ago, Blockmon said:

the original intent is a bad doctrine as it opposes change. If you follow the original intent of the constitution then you have to abandon all of the changes in the USA,

I am not an original intent theorist, and neither are most originalists. Most originalists subscribe to the "original meaning" school of originalism, which instead looks at what words meant when they were originally penned. Original Intent is at odds with a textualism approach because it constitutes a kind of historical purposivism that starts to try to read the minds of legislators, never a good idea for a court whose purpose is to read law. Original Meaning Originalism commands its subscribers to read the words as they would have been understood by the average, reasonable individual at the time of ratification. Importantly, it does not require you to emulate the mindset of that average, reasonable individual at the time of ratification when trying the meaning of the law against the facts of the case, only when determining the meaning of the law. It does not mean the words cannot change, and it also does not mean their application cannot change in response to new legal stimuli. It simply means that the actual, real meaning, of the words does not.

Though I will defend original intent thought from this attack, even though I don't practice it, because I think you're underselling. Original Intent Originalism also does not mean that the words cannot change or that they cannot respond to new legal stimuli. However, I will agree that Original Intent, like most intent-oriented methods of jurisprudence often sacrifice meaning for intent/purpose too much and result in bad law. This isn't an affect of it being originalist in nature, but rather it being intent-oriented.

4 hours ago, Blockmon said:

That Government which also includes states and the supreme court should not take away the rights of any person no matter what they look like or how they live.

Agree, within reason. There are certain protected classes that get particular protection in certain areas, but all Americans are guaranteed their rights regardless of what they look like or anything else. I do take certain issues with "how they live" because certain lifestyles can legitimately be deemed criminal, and, as a result, their practitioners can have their liberties suspended via due process. 

No Originalist school of thought conflicts with this mantra. Certainly not original meaning.

4 hours ago, Blockmon said:

right to consume as that is a 9th Amendment right not protected by a different amendment that would establish it in writing.

I'm not sure about an affirmative "right to consume." Certainly, there is a legal right to enter into voluntary contacts and engage in voluntary commerce, but an affirmative right to consume seems to suggest I have a right to force others into contracts with me. Either way, decent analysis of the 9th Amendment here. Though, I would be careful in creating a hierarchy of rights too strict.

4 hours ago, Blockmon said:

In general, the doctrine of originalism doesn't work as it is unconstitutional to bring the USA back to where it was 200 years ago,

I've already explained how originalism does no such thing and only commands us to read the law for what it meant at the time of ratification provided said law has not been changed. But in either case, how could a theory of legal interpretation itself be "unconstitutional." There is no Article III prohibition on originalist thought in reading law, so this is a claim most puzzling.

4 hours ago, Blockmon said:

I support a both reform and expansion of the supreme court, I do not trust that a body that intends to bring us to age of past won't just take my rights either being gun rights, freedom of speech, or most important rights of all, happiness.

Could you point to instances of the Court taking away your right to bear arms or to speech? It seems this court has been among the most aggressive in defending the liberties found in the Bill of Rights. Though, I will concede that it has also done a decent job of remanding the protection of certain "rights" that are not guaranteed at the federal level to instead be adjudicated by the states, as is consistent with the 10th Amendment.

Either way, as Ted said, it's never a good idea to advance broad institutional reform because you have an issue with the people currently occupying the institution. I don't think a more political, expanded court would be better regarding the faithful reading of law, quite the opposite. Remember, their charge is not to engage in the political work of legislatures in creating or defining rights, but rather in reading and interpreting those that currently exist.

Also, how do you conceive of a constitutional right to "happiness?"

4 hours ago, Blockmon said:

Anyways I don't really care as long supreme court still allows states to have the laws that I seek, any step in a way where it bring blockage to a change in the state and removes rights of people then its a problem way bigger than "oh its fine, just live where you want those laws".

We can agree here. So long as there is no clear federal guarantee of a given right or some other constitutional mandate for a certain style of governance, the 10th Amendment is pretty clear that no federal agent, including SCOTUS, should touch it.

Edited July 2 by Dobs

[Dobs]

On 6/30/2023 at 2:18 PM, vcczar said:

I guess once response to the partisan question is this: How many times has Clarence Thomas sided with liberals when the majority of conservatives did not? I mean everything is bound to happen once, but I think if Thomas (or a liberal analogy) is voting with other ideologically similar justices and not against those justices about 8 or 9 times out of 10, then in my opinion it is partisan. I think both Thomas and RBG are (was for RBG) political judges, they aren't (weren't) going to rule in a way that contradicts the conservative or liberal base of voters respectively. That's my issue when ruling on cases that have a partisan divide. I think the only SC Justice that doesn't rule 75%+ with their "party" is the Chief Justice. The next closest swing is probably Kavanaugh, but he's probably still at 75-85%. I think Barrett is surprisingly the next swingish judge at 85-90%. I think all the rest are 90%+. 

I don't agree with this analysis. But before I go further, how do you define "ideology" and "partisanship" in the context of the Court? 

[Blockmon]

12 minutes ago, Dobs said:

You might argue that the intent of certain founders was to reflect widespread generational change, and indeed, it has. When the nation has convulsed in ways that reflect the need for federalized reform, it has delivered us the Reconstruction Amendments, Women's Suffrage, the elimination of the Poll Tax, and more. 

But certainly, the document itself has no intention to change itself. This is why the Amendment process is so difficult. To change the Constitution and bind all states requires broad, broad support.

Remember, the federal government was never supposed to do nearly as much as it does now, so most of the big questions were intended to be handled at the state level.

I am not an original intent theorist, and neither are most originalists. Most originalists subscribe to the "original meaning" school of originalism, which instead looks at what words meant when they were originally penned. Original Intent is at odds with a textualism approach because it constitutes a kind of historical purposivism that starts to try to read the minds of legislators, never a good idea for a court whose purpose is to read law. Original Meaning Originalism commands its subscribers to read the words as they would have been understood by the average, reasonable individual at the time of ratification. Importantly, it does not require you to emulate the mindset of that average, reasonable individual at the time of ratification when trying the meaning of the law against the facts of the case, only when determining the meaning of the law. It does not mean the words cannot change, and it also does not mean their application cannot change in response to new legal stimuli. It simply means that the actual, real meaning, of the words does not.

Though I will defend original intent thought from this attack, even though I don't practice it, because I think you're underselling. Original Intent Originalism also does not mean that the words cannot change or that they cannot respond to new legal stimuli. However, I will agree that Original Intent, like most intent-oriented methods of jurisprudence often sacrifice meaning for intent/purpose too much and result in bad law. This isn't an affect of it being originalist in nature, but rather it being intent-oriented.

Agree, within reason. There are certain protected classes that get particular protection in certain areas, but all Americans are guaranteed their rights regardless of what they look like or anything else. I do take certain issues with "how they live" because certain lifestyles can legitimately be deemed criminal, and, as a result, their practitioners can have their liberties suspended via due process. 

No Originalist school of thought conflicts with this mantra. Certainly not original meaning.

I'm not sure about an affirmative "right to consume." Certainly, there is a legal right to enter into voluntary contacts and engage in voluntary commerce, but an affirmative right to consume seems to suggest I have a right to force others into contracts with me. Either way, decent analysis of the 9th Amendment here. Though, I would be careful in creating a hierarchy of rights too strict.

I've already explained how originalism does no such thing and only commands us to read the law for what it meant at the time of ratification provided said law has not been changed. But in either case, how could a theory of legal interpretation itself be "unconstitutional." There is no Article III prohibition on originalist thought in reading law, so this is a claim most puzzling.

Could you point to instances of the Court taking away your right to bear arms or to speech? It seems this court has been among the most aggressive in defending the liberties found in the Bill of Rights. Though, I will concede that it has also done a decent job of remanding the protection of certain "rights" that are not guaranteed at the federal level to instead be adjudicated by the states, as is consistent with the 10th Amendment.

Either way, as Ted said, it's never a good idea to advance broad institutional reform because you have an issue with the people currently occupying the institution. I don't think a more political, expanded court would be better regarding the faithful reading of law, quite the opposite. Remember, their charge is not to engage in the political work of legislatures in creating or defining rights, but rather in reading and interpreting those that currently exist.

Also, how do you conceive of a constitutional right to "happiness?"

We can agree here. So long as there is no clear federal guarantee of a given right or some other constitutional mandate for a certain style of governance, the 10th Amendment is pretty clear that no federal agent, including SCOTUS, should touch it.

In general, this was an amazing response, and thank you dobs for this, not trying to be sarcastic but I just am happy to be in a community of amazing political discussion :D.
anyways to answer some of your questions here. the right to happiness as a constitutional right would be more accurate to the one written in the Declaration of Independence, that the ability of a human being in the USA is able to live freely and have to ability to grow wealth and do what they want in bring happiness without governments either federal or state harming them. next, the question would be instances of the court taking away my right, well the only right I would say it has damaged is the right to privacy and generally broken trusts over some of the justices as they broke conduct. Still, my biggest issue is you're saying that they don't read in political ways yet clearly they follow the intent of the republican party, only sometimes the more moderate justices accept the opinions of the more liberal justices. Generally, the public has a bad opinion of this court, I would probably predict that more and more progressive (even ones more leftist than previous ones) will become justices and soon partisanship will dominate the courts. as I said before I will not support this kind of court nor intend to support the party that wants to keep this court, judicial pragmatism seems to me the more humanistic and moderate option then to keep the intent of text in constitution the same of old times.

[Willthescout7]

20 year terms, can be renominated by the President. Longest serving member is Chief Justice. 1 member on the court from each circuit. Pass an amendment where Congress cannot just arbitrarily change the size of the court. Reform each circuit so that each has approximately the same amount of citizens represented as determined by independent commission.