davsel
05-17-2019, 09:53
Looks like the winds of change are arriving at the SCOTUS - Libs are in a tizzy.
Opposing views of what this means:
https://www.americanthinker.com/articles/2019/05/taming_the_bench_maga_means_ending_judicial_preced ent.html
One justice who apparently understands this is Clarence Thomas, who just wrote the majority opinion in a recent decision (Franchise Tax Board of California v. Hyatt (https://www.scotusblog.com/case-files/cases/franchise-tax-board-of-california-v-hyatt-2/)) overturning a 1979 precedent. He was the ideal candidate for the task, as it has been noted (http://www.americanthinker.com/blog/2019/05/a_huge_supreme_court_decision_you_never_heard_of.h tml)that he?s not a ?Court conservative? as much as an originalist. A conservative, after all, would hew to the status quo, which here means honoring precedent. In contrast, as SCOTUSblog pointed out (https://www.scotusblog.com/2007/10/justice-thomas-and-constitutional-stare-indecisis/) in 2007, Thomas ?believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis any weight.?
Staredecisis? folly should be obvious. In what other field would anyone assert that once a decision is made, it stays made? Since it?s a statistical certainty that not all decisions will be good ones, this standard only ensures the permanency of error.Yet to fully grasp stare decisis? outrageousness, an analogy is useful. Chief Justice John Roberts once correctly said that a judge?s role is only to call ?balls and strikes? (this was before he decided that a ball could be a strike when striking a blow for statism). Expanding on this, judges are in fact like baseball umpires, whereas the players are akin to the people, the sport?s ruling body is a sort of legislature and the rulebook is essentially its constitution.
Now, it goes without saying that if an umpire ?ruled? contrary to the rulebook -- let?s say, refusing to call a player out after three strikes because he believed they were too few -- we wouldn?t flatter his falsity and legitimize his legerdemain by calling him a ?pragmatist? with a ?living document? philosophy. We?d recognize him as a bad umpire derelict in his duty, and he?d be fired.
To the point, however, what would you say about someone who not only accepted his judgment, but viewed it as unchangeable ?precedent??
This notion is just as ridiculous when applied to judges -- only far more dangerous. It should in fact disqualify someone from the bench, for justices take an oath to uphold the Constitution.
https://www.forbes.com/sites/ashleaebeling/2019/05/13/supreme-court-shows-its-ready-to-overrule-precedent-dissent-sounds-alarm-in-california-v-hyatt/#50f90a4ccbab
?This case shows that precedent gets little weight with the conservative justices on the Roberts? Court; Justice Breyer expresses this well in his dissent,? says Erwin Chermerinsky, dean of University of California, Berkeley, School of Law, who argued the case on behalf of Hyatt in January. After the oral arguments, Chermerinsky wrote that (http://www.abajournal.com/news/article/chemerinsky-remaining-rulings-to-address-administrative-state-stare-decisis) his sense was that the discussion was really about ?how the court is going to treat precedent when issues like abortion, affirmative action, and gay and lesbian rights return to the court.? In other words, will Roe v. Wade be next?
Justice Breyer, with whom Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined, said there was no good reason to overrule Hall: ?[T]he very fact?that Hall is not obviously wrong?shows that today?s majority is obviously wrong to overrule it.? The dissent warned about the potential danger of legal uncertainty going forward: ?To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.?
Hope Trump gets a few more appointments to the SCOTUS before he's done.
Opposing views of what this means:
https://www.americanthinker.com/articles/2019/05/taming_the_bench_maga_means_ending_judicial_preced ent.html
One justice who apparently understands this is Clarence Thomas, who just wrote the majority opinion in a recent decision (Franchise Tax Board of California v. Hyatt (https://www.scotusblog.com/case-files/cases/franchise-tax-board-of-california-v-hyatt-2/)) overturning a 1979 precedent. He was the ideal candidate for the task, as it has been noted (http://www.americanthinker.com/blog/2019/05/a_huge_supreme_court_decision_you_never_heard_of.h tml)that he?s not a ?Court conservative? as much as an originalist. A conservative, after all, would hew to the status quo, which here means honoring precedent. In contrast, as SCOTUSblog pointed out (https://www.scotusblog.com/2007/10/justice-thomas-and-constitutional-stare-indecisis/) in 2007, Thomas ?believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis any weight.?
Staredecisis? folly should be obvious. In what other field would anyone assert that once a decision is made, it stays made? Since it?s a statistical certainty that not all decisions will be good ones, this standard only ensures the permanency of error.Yet to fully grasp stare decisis? outrageousness, an analogy is useful. Chief Justice John Roberts once correctly said that a judge?s role is only to call ?balls and strikes? (this was before he decided that a ball could be a strike when striking a blow for statism). Expanding on this, judges are in fact like baseball umpires, whereas the players are akin to the people, the sport?s ruling body is a sort of legislature and the rulebook is essentially its constitution.
Now, it goes without saying that if an umpire ?ruled? contrary to the rulebook -- let?s say, refusing to call a player out after three strikes because he believed they were too few -- we wouldn?t flatter his falsity and legitimize his legerdemain by calling him a ?pragmatist? with a ?living document? philosophy. We?d recognize him as a bad umpire derelict in his duty, and he?d be fired.
To the point, however, what would you say about someone who not only accepted his judgment, but viewed it as unchangeable ?precedent??
This notion is just as ridiculous when applied to judges -- only far more dangerous. It should in fact disqualify someone from the bench, for justices take an oath to uphold the Constitution.
https://www.forbes.com/sites/ashleaebeling/2019/05/13/supreme-court-shows-its-ready-to-overrule-precedent-dissent-sounds-alarm-in-california-v-hyatt/#50f90a4ccbab
?This case shows that precedent gets little weight with the conservative justices on the Roberts? Court; Justice Breyer expresses this well in his dissent,? says Erwin Chermerinsky, dean of University of California, Berkeley, School of Law, who argued the case on behalf of Hyatt in January. After the oral arguments, Chermerinsky wrote that (http://www.abajournal.com/news/article/chemerinsky-remaining-rulings-to-address-administrative-state-stare-decisis) his sense was that the discussion was really about ?how the court is going to treat precedent when issues like abortion, affirmative action, and gay and lesbian rights return to the court.? In other words, will Roe v. Wade be next?
Justice Breyer, with whom Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined, said there was no good reason to overrule Hall: ?[T]he very fact?that Hall is not obviously wrong?shows that today?s majority is obviously wrong to overrule it.? The dissent warned about the potential danger of legal uncertainty going forward: ?To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.?
Hope Trump gets a few more appointments to the SCOTUS before he's done.