Trump

[constant escape]

conservative justices one the court will proclaim it's not that they personally are for or against XYZ, it's that the constitution or the way a law is written does not allow or forbid something. in other words, it's not that they are against extending time to count mail-in ballots, it's that states don't have the authority to make that decision.

liberal judges do the same thing, tbf.

Just listened to an Amy Coney Barrett interview, and she was adamantly pointing out that her, and presumably her milieu's, usage of "liberal" and "conservative" referred not to political orientation but to the manner in which the constitution is interpreted.

edit: which hadn't occurred to me, to shift that spectrum that way.

 

[IdleRich]

But wouldn't she agree that people politically liberal would tend to interpret the constitution liberally and vice versa?

 

[constant escape]

Not sure what she'd think there, but I'd be inclined to think so, unless certain values that are held as conservative are, in fact, deviant from the constitution.

Also just not very familiar with the constitution. For all I know, there is a scaffolding of amendments around it that may drastically change the nature of it.

 

[IdleRich]

Yeah sorry I didn't expect you to answer for her, I just think she's splitting hairs.

 

[constant escape]

She could be, but it could have something to do with changes in circumstances rendering a fundamentalist stance tough to impossible, even for political conservatives, thus forcing some degree of liberal interpretation - how liberal perhaps being the kind of spectrum she had in mind. Just spitballing though.

 

[IdleRich]

Ah I see. But the division in the country really prevents talk of any kind of spectrum doesn't it? It's gonna be tough for her to try and reintroduce a bit of subtlety now and reasonableness into this part of the debate now.

 

[Leo]

lots of conservatives are originalists: they look to interpret the constitution as it was originally written. they claim liberal judges sometime stray from this strict interpretation and look to apply the spirit of the law to current circumstances. a legal doctrine written 200+ years ago can't possible be relevant to many issues faced today, the difference is how conservative and liberal judges interpret and apply the law.

conservative judges will say a) interpret the law as written, and b) if current law don't accommodate issues that didn't exist 200 years ago, then it's incumbent on congress to authorize amendments to the constitution. they don't feel it's the role of judges to look beyond the constitution (aka, "activist judges" who "legislate from the bench").

 

[Leo]

they feel laws must come from elected officials (congress), not appointed judges. judges just interpret the law, not create it.

 

[IdleRich]

lots of conservatives are originalists: they look to interpret the constitution as it was originally written. they claim liberal judges sometime stray from this strict interpretation and look to apply the spirit of the law to current circumstances. a legal doctrine written 200+ years ago can't possible be relevant to many issues faced today, the difference is how conservative and liberal judges interpret and apply the law.

This is the problem isn't it? Pretty sure they didn't have mail-in votes to decide about two hundred years.

 

[IdleRich]

they feel laws must come from elected officials (congress), not appointed judges. judges just interpret the law, not create it.

Makes sense but what do you they do when they have to take a case where the law hasn't been created? Maybe they could all agree to abstain or something but I don't really see that happening.

 

[padraig (u.s.)]

she was adamantly pointing out that her, and presumably her milieu's, usage of "liberal" and "conservative" referred not to political orientation but to the manner in which the constitution is interpreted

in this case the two things coincide

and strict constructionism - i.e. supposed constitutional literalism - is mostly bullshit anyway, they pick and choose just like anyone

the Constitution doesn't confer any specific power on the SC to strike down legislation or presidential action

that power - judicial review - was assumed by...the Supreme Court in its 1803 Marbury v Madison decision

a true constitutional literalist would admit the Court has no such powers, which of course yr Scalia etc types don't

 

[padraig (u.s.)]

it's all bullshit anyway

it's the stupid game every SC nominee has to play of pretending that how they interpret the law will override all other concerns

everyone knows it's bullshit, and they all know each other knows it's bullshit, it's just how it is

it's one of the drawbacks to having lifetime appointments and the outsize importance of the Court

 

[Leo]

Makes sense but what do you they do when they have to take a case where the law hasn't been created? Maybe they could all agree to abstain or something but I don't really see that happening.

I'm guessing they would either dismiss the case, or not even take it up in the first place. the law needs to be created first before they can rule on it.

 

[padraig (u.s.)]

Makes sense but what do you they do when they have to take a case where the law hasn't been created?

they're supposed to interpret such law as exists

they're free to, as leo says, not hear the case in the first place - the SC only hears a small fraction of the cases it's asked to review

 

[IdleRich]

But I thought that sometimes they created it? As you said above.

 

[padraig (u.s.)]

But I thought that sometimes they created it? As you said above.

no, they set precedences of how a law is to be interpreted

also, they can decide a law is invalid because it's unconstitutional - that's judicial review, as I mentioned above

they can't create entirely new law - that's what separation of powers is about

 

[Leo]

since true impartial objectivity is a nonstarter, the most we can hope for is at least a sense of fairness.

 

[IdleRich]

Ah ok, so they can make the first ruling on how something should be interpreted but not actually create it?

 

[padraig (u.s.)]

separation of powers basically works like this

the President can determine how existing law is enacted i.e. executive orders, and can (try to) veto the legislative branch

the legislative branch can enact new law (the President can propose but not enact new law)

the SC interprets whether laws and executive orders are constitutional

there's more but that's the basic outline

 

[padraig (u.s.)]

Ah ok, so they can make the first ruling on how something should be interpreted but not actually create it?

ultimate ruling rather than first

as I said very few cases actually make it before the SC - the great majority get their final ruling in lower-level courts

in fact the SC often selects cases specifically to resolve contentious issues

it's the final arbiter