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The SCOTUS is appointed by the victors of elections and they're vetted specifically because they represent one of the few ways a president can leave a lasting legacy. They aren't some politically neutral logic array. We do have the benefit of seeing them age at their station rather than slapping on bi-/quadrennial coats of paint, and that provides this illusion of separation from ideology. The SCOTUS has already ruled race-only uses of redistricting unconstitutional, the question I was posing was whether the racial polarization of the electorate could be used in arguing that party identification is an unconstitutional criteria for redistricting as it has become a proxy for racial discrimination, which has already been deemed unconstitutional.
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Feb 25, 2015 04:49
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FAUXTON posted:The SCOTUS is appointed by the victors of elections and they're vetted specifically because they represent one of the few ways a president can leave a lasting legacy. They aren't some politically neutral logic array. We do have the benefit of seeing them age at their station rather than slapping on bi-/quadrennial coats of paint, and that provides this illusion of separation from ideology. That sounds an awful lot like a disparate impact theory. So, no.
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Feb 25, 2015 09:30
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Kalman posted:That sounds an awful lot like a disparate impact theory. Well, it could, it would just have to overturn Washington v. Davis implicitly or explicitly. On the other hand, a situation where you can avoid constitutional problems by doing the same thing, only changing up a few words, with the same intent is absurd, so I can see where FAUXTON is coming from here.
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Feb 25, 2015 15:03
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FAUXTON posted:The SCOTUS is appointed by the victors of elections and they're vetted specifically because they represent one of the few ways a president can leave a lasting legacy. They aren't some politically neutral logic array. We do have the benefit of seeing them age at their station rather than slapping on bi-/quadrennial coats of paint, and that provides this illusion of separation from ideology. I dunno, I think even the jurists with whom I disagree are voting based on their honest view of the law rather than loyalty to any particular party.
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Feb 25, 2015 15:16
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ActusRhesus posted:I dunno, I think even the jurists with whom I disagree are voting based on their honest view of the law rather than loyalty to any particular party. You picked a bad topic to make this objection. Partisanship is often overstated as an influence on judicial decisions, particularly at the district level. But partisanship has a progressively bigger influence as you move up the chain, and civil rights cases in particular almost always show the biggest influence*. For instance, in Sunstein's analysis of the federal appeals court (url=http://www.nytimes.com/2012/11/27/us/judges-rulings-follow-partisan-lines.html]quoted here[/url]), “From 1978 to 2004, Republican appointees cast 275 total votes, with 129, or 47 percent, in favor of upholding an affirmative action program... By contrast, Democratic appointees cast 208 votes, with 156, or 75 percent, in favor of upholding an affirmative action program.” It's clearly not just coincidence that these votes align with party affiliation, and it's also not just coincidence that ideology tends to organize seemingly disparate judicial approaches (e.g. Scalia is notorious for upholding free speech he agrees with). Hardliner theory-driven jurists like Clarence Thomas are the exception rather than the norm. *More recently, Obamacare seemed to show a dramatically larger divide, but it's with a much smaller sample size so I wouldn't put too much weight on it.
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Feb 25, 2015 16:26
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Forever_Peace posted:You picked a bad topic to make this objection. Partisanship is often overstated as an influence on judicial decisions, particularly at the district level. But partisanship has a progressively bigger influence as you move up the chain, and civil rights cases in particular almost always show the biggest influence*. For instance, in Sunstein's analysis of the federal appeals court (url=http://www.nytimes.com/2012/11/27/us/judges-rulings-follow-partisan-lines.html]quoted here[/url]), “From 1978 to 2004, Republican appointees cast 275 total votes, with 129, or 47 percent, in favor of upholding an affirmative action program... By contrast, Democratic appointees cast 208 votes, with 156, or 75 percent, in favor of upholding an affirmative action program.” Or Republicans nominate justices with legal ideologies that match their desires and Democrats do likewise. They aren't voting their politics, they're voting their legal ideologies. (Of course, they're actually the same thing - all law is politics.)
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Feb 25, 2015 17:11
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Kalman posted:Or Republicans nominate justices with legal ideologies that match their desires and Democrats do likewise. They aren't voting their politics, they're voting their legal ideologies. There are some cases where the result is only explicable from partisanship, not ideology, such as any votes that subsidies aren't allowed for the 'federal' exchange under Obamacare from any of the previous court decisions (and the upcoming Supreme Court decision).
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Feb 25, 2015 17:16
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evilweasel posted:There are some cases where the result is only explicable from partisanship, not ideology, such as any votes that subsidies aren't allowed for the 'federal' exchange under Obamacare from any of the previous court decisions (and the upcoming Supreme Court decision). You should know better than to pretend there's a difference between partisanship and ideology.
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Feb 25, 2015 17:18
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Kalman posted:You should know better than to pretend there's a difference between partisanship and ideology.
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Feb 25, 2015 17:20
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It's pretty much impossible to explain Gonzalez v. Raich if you believe that Justices rule purely according to their legal ideology.
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Feb 25, 2015 17:29
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KIM JONG TRILL posted:It's pretty much impossible to explain Gonzalez v. Raich if you believe that Justices rule purely according to their legal ideology. ... It's actually really easy to explain Raich as a matter of ideology even without going into critical theory.
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Feb 25, 2015 17:33
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Kalman posted:... It's actually really easy to explain Raich as a matter of ideology even without going into critical theory. Ok how about Bush v Gore? I'm all ears.
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Feb 25, 2015 17:37
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evilweasel posted:Like I said, I think this is a dumb clause so I'm inclined to give it a narrow interpretation. In addition when connected with time and place I view the clause as a whole as reserving the technical issues of the actual election to the state legislature, and not relevant to substantive issues such as district drawing which go to the political structure of the state, which are properly reserved to the State Constitution. The court has usually held "Legislature" refers to the legislating power of the state and not necessarily the specific body, so if the state constitution says that legislation can be passed be referendum then that's acting like the legislature as far as the court is concerned. some article I read posted:In Ohio ex. rel. Davis v. Hildebrant, in 1916, the Court upheld Ohio’s use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature. The Court specifically rejected a challenge to the referendum based on Article I, section 4 of the Constitution, finding that “to include the referendum into the scope of the legislative process was [not] to introduce a virus which destroys that power,” and also that Congress expressly chose language to include in a federal statute (the one quoted above) in order to make clear its desire that where under state law “the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of” the Elections Clause (emphasis added).
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Feb 25, 2015 17:37
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Kalman posted:You should know better than to pretend there's a difference between partisanship and ideology. There is a big difference. If you pick for ideology, you're going to get someone who votes the way their ideology tells them. But sometimes that ideology diverges from what is in the partisan advantage of a party and an ideological judge will rule according to his ideology, while the partisan judge will reconsider and vote for the party. Ideology is defensible in a judge: everyone's got to have beliefs and ways of understanding the law. Partisanship isn't. It's one thing to appoint someone with strong beliefs about what the law is, but it's another to appoint a judge who is going to be a reliable vote for whatever the party needs at that moment. No conservative judges have an ideology that would justify a tortured reading of the ACA to eliminate subsidies - but they do have partisan leanings that support it.
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Feb 25, 2015 17:44
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evilweasel posted:There is a big difference. If you pick for ideology, you're going to get someone who votes the way their ideology tells them. But sometimes that ideology diverges from what is in the partisan advantage of a party and an ideological judge will rule according to his ideology, while the partisan judge will reconsider and vote for the party. I thought I was replying to Warszawa, for some reason, so I take back the "you should know better." You still should, though. The idea that partisanship is in any meaningful way severable from ideology basically ignores the critical theory critique of legal theory - ultimately all of the ways in which we resolve competing legal principles involve political choices, and the idea that some of those choices (traditionally understood as legal ideology) are privileged over other choices (understood as partisan choices) is ridiculous. Scalia isn't going to vote to kill ACA subsidies because it's what Republicans want. He's going to vote to kill ACA subsidies because it's what he wants and he will find the legal path to support it. This is not partisan, nor is it ideological; it's a political exercise, like all judging, and should be understood as such. Forever_Peace posted:Ok how about Bush v Gore? I'm all ears. Conservative justices have ideologies that value certainty over fairness; liberal vice versa.
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Feb 25, 2015 18:22
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So Clarence Thomas.
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Feb 25, 2015 18:26
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ActusRhesus posted:I dunno, I think even the jurists with whom I disagree are voting based on their honest view of the law rather than loyalty to any particular party. Scalia used an argument in support of one case when he was on the majority then immediately whined about the same loving thing when he was dissenting on another case (Hobby Lobby and Windsor, I think?). It completely removed any shred of cover he'd have to claim to be anything more than a political hack who cares about the politics and not the law.
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Feb 25, 2015 18:51
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Pretty sure it was the VRA and Windsor cases where he takes opposing stances.
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Feb 25, 2015 19:08
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Kalman posted:I Why does he want it, though? You're just pushing things back one step of analysis.
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Feb 25, 2015 19:25
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Scalia aside, it's a perfectly acceptable conclusion that SCOTUS justices exhibit generally consistent reasoning. The politicization of the court stems from the polarized electorate/legislature/executive back and forth poo poo that's become the norm over the past 35 years, with notable acceleration of that trend in the past 15. Nobody blames a president for wanting to "lock in" their influence by choosing a justice with a strongly-held judicial ideology matching their own political goals. That's been a thing all presidents have done with the court. The harm is in the stringency of the executive in nominating. The court has become political because of how stringent that ideological test has become - it pushes the bar so high that judicial rationale alone doesn't satisfy. Scalia falls outside that scale because his judicial reasoning frequently seems to be derived from a political conclusion rather than a conclusion reached through reasoning. On the other hand, you have political ideologies which follow broader constitutional prerogatives (civil rights, equality, privacy) and are less easily isolated as political conclusions from which rationale is built, because there's consistent reasoning to back those up. Regarding progressive ideals being easier to follow via strict ideology, I could start opining about how the constitution is far more accepting/demanding of progress (e.g. equality, civil rights) than it is hostile to it, but that's probably more due to the language used in it than the ideologies of the framers. The language, however, is basically all there is unless you consider precedent, and precedent tends toward progress all the same.
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Feb 25, 2015 19:37
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Obdicut posted:Why does he want it, though? You're just pushing things back one step of analysis. Because he doesn't think poor people should get health care and that there's nothing in the statute that requires it. Not because Republicans think they shouldn't - because he thinks they shouldn't. It's all at the same level of analysis - Scalia will vote against it because his principles say gently caress poors, Thomas will vote against it because his principles say gently caress coherent theories of an entire statute, the text says what it says, both are decisions based in personal politics. So, yes, I'm pushing things back a level, but the important point is that ultimately the distinction between "legal ideology" and "partisan political stance" is as meaningful as the term "activist judge." It's only partisan if you don't like the principle being upheld.
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Feb 25, 2015 20:29
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Republicans don't do things because it's what Republicans want. They do it because it's what they want! These two things are in no way equivalent and are actually a grand insight on my part.
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Feb 25, 2015 20:42
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VitalSigns posted:Republicans don't do things because it's what Republicans want. They do it because it's what they want! Well, there are situations like Earl Warren that crop up fairly regularly. Once they're on the court, justices' views often drift considerably.
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Feb 25, 2015 20:49
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From Kagan's dissent in Yates v. United States:quote:As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).
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Feb 25, 2015 21:04
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Well there is no arguing with Dr. Seuss. We all know that.
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Feb 25, 2015 21:09
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Deteriorata posted:Well, there are situations like Earl Warren that crop up fairly regularly. Once they're on the court, justices' views often drift considerably. I think this is a dying phenomenon, though, for the reasons I've been rambling about - the polarization assisted (but not necessarily caused) by partisan redistricting means government becomes a tug of war, with the judiciary being one of few ways to anchor one's legacy. That ideological anchor needs to be more and more firmly rooted as the tidal forces increase. Simple deliberate thoughtfulness won't do it, a president is going to need to be drat sure they're nominating someone who has an ideology that compels them to doggedly defend the president's political achievements. If they're feeling especially froggy, they nominate someone who thinks all this women's lib/civil rights/campaign finance restrictions stuff is the devil. Scalia is a picture of things to come, if anything.
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Feb 25, 2015 21:11
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Is Yates the one asking whether the discarding of violating fish (the authorities only allow fish above a certain size, Yates had someone get rid of a bunch of fish that were too small so they wouldn't get busted) can be considered an equivalent to throwing an incriminating accounting ledger into a fireplace?
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Feb 25, 2015 21:20
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FAUXTON posted:Is Yates the one asking whether the discarding of violating fish (the authorities only allow fish above a certain size, Yates had someone get rid of a bunch of fish that were too small so they wouldn't get busted) can be considered an equivalent to throwing an incriminating accounting ledger into a fireplace? Yep. That was the one about what counts as a "tangible object" for the purposes of Sarbanes-Oxley.
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Feb 25, 2015 21:26
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VitalSigns posted:Republicans don't do things because it's what Republicans want. They do it because it's what they want! Correlation is not causation, you twit. They are, in fact, not equivalent. Which is why Scalia occasionally does the right thing on 4th Amendment issues, and why Thomas does essentially everything he does. Identifying it as a partisan issue (except in the way Fauxton has, i.e., in that the nomination process has become heavily politicized such that there's a much stronger emphasis on aligning political ideology of nominees with nominators, which I completely agree with) makes it seem like Scalia is bowing to the Republican Party because they nominated him, when in fact they nominated him because most of the time he would go along with what they want.
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Feb 25, 2015 21:37
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1337JiveTurkey posted:From Kagan's dissent in Yates v. United States: You get the feeling sometimes the justices are just checking if people are paying attention?
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Feb 25, 2015 22:35
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1337JiveTurkey posted:Yep. That was the one about what counts as a "tangible object" for the purposes of Sarbanes-Oxley.  I skimmed the majority opinion and it looks like they determined a fish isn't a tangible object for those purposes ("you can't make a record entry in a fish," or something along those lines, was a phrase I noticed) but it's weird that someone was charged under SOX for throwing fish overboard. If he threw his ledger overboard too I could see the reasoning but fish are not evidence in the way financial records are and I'd love to know what prosecutor thought it would  float.
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Feb 25, 2015 22:39
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More specifically: a fish isn't a "tangible object" as that phrase is used in the statutory scheme enacted to prosecute financial crimes because of that statutory context in which "tangible object" is used. I like Kagan's writing style less and less. It is, at times, too sarcastic for my tastes of how a judicial opinion should read.
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Feb 25, 2015 22:48
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Chokes McGee posted:You get the feeling sometimes the justices are just checking if people are paying attention? I was skimming the dissent and Kagan also called the plurality's search for the meaning of "tangible object" a fishing expedition.
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Feb 25, 2015 22:51
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Green Crayons posted:I like Kagan's writing style less and less. It is, at times, too sarcastic for my tastes of how a judicial opinion should read. Aren't all her snarky sarcastic comments from dissents?
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Feb 25, 2015 22:54
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hobbesmaster posted:Aren't all her snarky sarcastic comments from dissents? She's all the sass of Scalia in dissent but she doesn't have the horcrux problem he does.
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Feb 25, 2015 23:19
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Kalman posted:Conservative justices have ideologies that value certainty over fairness; liberal vice versa. I am flabbergasted you think there is even a remote possibility that if Bush had stood to gain from the recount, the five conservative justices would still have voted to stay the recount and the four liberal justices would still have voted to allow it. I literally wasn't aware of anybody in the legal community who genuinely thought it was motivated by a sober and apolitical assessment of the law, without consideration of party. Do you even remember how absurd the whole thing was? They put a stay on the recount on December 9th, heard oral arguments on the 11th, then issued a verdict on the 12th saying that a recount would be constitutional, but that December 12th was the deadline and it was therefor impossible conduct a recount in this particular case because of timing issues. When they themselves had demanded that the recount be halted. I mean, this is a line directly from the majority opinion: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities". Why would a judge motivated by ideology even consider stipulating that the their own decision provides no coherent legal precedent for any future case? Even O'Connor has publicly admitted that the decision was a mistake. I don't think there's ever been a clearer illustration of a politicized judiciary. I'm fine if you want to argue that it is not the norm, but to just categorically declare that no justice is ever decided a court case because of partisan motivations despite unambiguous evidence to the contrary is literally delusional.
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Feb 26, 2015 00:40
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Bush v Gore is probably the best argument for a partisan SCOTUS decision, but I actually don't think that it was as baldly partisan as people think. I'm not alone in that theory, either. Chemerinsky posted:in other words, it was not that the five justices in the majority set out to make sure Bush became president, and the four dissenters acted to make sure that Gore was president. I truly believe that each of the nine justices deeply believed that he or she was making a ruling on the law, not on partisan grounds. But how each saw the case was entirely a product of the Justices' biases and views. But even beyond that, you're missing my point. It's not that Bush v Gore was a uniquely political decision - it isn't, because all decisions are political. It's just one where people understand the politics that drove it, as opposed to something like the SOX fish decision. Equally political, but not decried as such.
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Feb 26, 2015 01:24
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Kalman posted:Bush v Gore is probably the best argument for a partisan SCOTUS decision, but I actually don't think that it was as baldly partisan as people think. I'm not alone in that theory, either. My understanding of your point is that political doctrines are themselves organized around a set of ideologies, making the distinction between a "political" decision and an "ideological" decision under-informative because they are different levels of the same thing. The partisan labels we use for members of the judiciary (e.g. "conservative justices") is just a shorthand for the tendency for politicians to nominate and confirm the judges that also have ideologies that conform to their majority party, and even this shorthand is inexact (see: Souter). My point is that many members of the judiciary at times express an inconsistent ideology across cases that is indicative of partisan motivations (i.e. motivated by the policy implications of the outcomes, not the ideological justification of the decision process). I mentioned Scalia's inconsistent freedom of speech opinions and the Bush v Gore as examples of this kind of partisanship. In other words, you are positing a theory of why conservative justices tend to authentically vote along particular ideologies, and I am positing a theory to help us understand the cases where they don't (maintain a coherent ideology).
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Feb 26, 2015 01:46
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The "all decisions are political" claim, and the "all decisions are ideological" claim, are both useless in that they are unfalsifiable.
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Feb 26, 2015 01:51
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Discendo Vox posted:The "all decisions are political" claim, and the "all decisions are ideological" claim, are both useless in that they are unfalsifiable. Except that they're not useless; it's a philosophical point as much as anything. It's the broadest level of "all judges are activist judges." It's an attempt to remove the blinders most people operate under in thinking that there are things like correct answers in the law. Forever_Peace posted:In other words, you are positing a theory of why conservative justices tend to authentically vote along particular ideologies, and I am positing a theory to help us understand the cases where they don't (maintain a coherent ideology). No. I am positing that you are incorrect when you say that they don't maintain a coherent ideology and have instead failed to identify their ideology properly (previous sentence equally true if you replace ideology with politics.). You want to make a distinction between when they decide based on what you think is a legal principle and when they decide based on what you think is a political principle. I am saying that that distinction is meaningless and ultimately incoherent; all legal principles are political principles. I'm not saying anything particularly new here. I get that you all don't like critical legal theory, but don't pretend that it isn't a legitimate critical approach to the law or one that hasn't had a ton of scholarship written about it.
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Feb 26, 2015 02:04
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