Should courts stop making the law? (Roe Vs Wade leak)

I have long considered that the jurisprudence that dominated before the 1950s (or so) was correct: it is not the job of courts to apply the law vastly differently to how it was intended when it written. If society moves on then society needs to change the law, not expect the courts to deal with it because legistlators (and possibly the electorate) haven’t. Any other approach is anti democractic.

Cases like Roe v. Wade and Obergefell v. Hodges were decided on grouds that stretched the provisions of US constitution and the authority of the SCOTUS, and made the court a political agent. I don’t think the highest courts in other common law jurisdictions suffer the same kind of criticism and political attention as SCOTUS because they are less activist, and that is partly because the US constitution and bill of rights are far more generous than protections elsewhere. While I think we need more generous protections, perhaps some rights need to be guranteed not by the law but by the people themselves in their everyday interactions. Culture matters.

Paul Joseph Watson has a few fun digs at the inconsistencies in mainstream leftist philosophy in his commentary on these leaks. I think he goes overboard on the morality of it at the expense of the jurisprudence.

I’m not providing MSM links. There’s hundreds of them on google. Comments below!

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Agent 47

All this does is kick it back to the states. Moloch worshippers and whores can still go to California and kill their offspring.

Real issue is who leaked from SCOTUS. That is a huge no no and draft opinions have never been leaked before.

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Gruppenführer Mark

Russia? China? SCOTUS working for Putin/Xi? Standard response for the last few years…

Last edited 18 days ago by Gruppenführer Mark
T

Apparently it was a guy called Amit Jain, who clerks for Sotomayer.

I think the left has decided to blow up the court.

Abortion is going to go against them, Sotomayer will likely be impeached, and if these things happen, gun control will go too.

Which the left knows, so they decided f it.

Agent 47

Sotomayor womt be impeached, shell be given a book deal and a tv show and probably a face on Mt Rushmore under the current admin.

This is also doing the rounds. Distraction in my opinion to take the heat off of the Pfizer drop today.

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T

I hear you, and would have agreed say a year ago. But wheel of fortune or turns and roundabouts.

Sometimes things are surprisingly interesting, and it feels like this is one of those times.

Dunno man, I’m probably wrong. Hard to say. May you live in interesting times, as they say.

Gruppenführer Mark

That’s easy! The opinion draft was written in February, IIRC. Someone got a wind of it, organised the website, then waited for an appropriate moment to leak it.

The biggest mystery to me is why now? What is being hidden? You know, like Covid was a pretense for a worldwide surveillance/social score/travel restrictions. 9/11 used to cover US economy imploding and ushering in a new age of GWOT, complete with a ~800-page Patriot Act written and passed in mere days after the main event. Shit like that.

Just watched Wag the Dog again. What a great flick!

Stewie

Encouraging the right of your enemy to genocide themselves is a very Judaic value.

tamixek134

Conservatives be like

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Gruppenführer Mark

Great attempt to marginalize the discussion

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tamixek134

Focusing the discussion would be more accurate.

But fair point, somewhat off-topic.

Conservatives be like:

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tamixek134

Dog-whistling jibber jabber.

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Peachy

I don’t know much about the abortion politics in the US or their legal history on this front. But I wanted to comment on this:

it is not the job of courts to apply the law vastly differently to how it was intended when it written. If society moves on then society needs to change the law, not expect the courts to deal with it because legistlators (and possibly the electorate) haven’t. Any other approach is anti democractic.

there are probably three distinct thoughts that I have:

#1

it is not the job of courts to apply the law vastly differently to how it was intended when it written.

doesn’t this presume that “how the law was intended” is some kind of fixed and known quantity and quality?

I think that this is the wrong presumption to make.

The law is the law and how it applies to particular circumstances is precisely what the courts are there to work out. As best they can. Each time a case comes up.

#2

If society moves on then society needs to change the law, not expect the courts to deal with it because legistlators (and possibly the electorate) haven’t.

it is important to acknowledge that it is the legislators and the electorate are blameworthy here. Not the judiciary.

the judges do their best to adjudicate each case, at each time, as they find the particular facts and as they understand the law.

#3

Any other approach is anti democractic.

i think that is only true if you look at this as a single snapshot, frozen in time, eg:

  1. Elected legislature makes law
  2. Unelected judiciary decides something that has apparent tensions with the law as previously written by elected legislature

that certainly looks undemocratic and wrong.

But if you consider that the process is actually dynamic and continuous over time, it’s not really an issue – just a matter of sequencing-

  1. Elected legislature makes law
  2. Unelected judiciary decides something that has apparent tensions with the law as previously written by elected legislature
  3. Elected legislature amends law, either ratifying judicial decision (democratic affirmation that community standards have changed) or rejecting it
  4. Unelected judiciary decides something that has apparent tensions with the law as previously written by elected legislature
  5. Elected legislature amends law, either ratifying judicial decision (democratic affirmation that community standards have changed) or rejecting it
  6. Unelected judiciary decides something that has apparent tensions with the law as previously written by elected legislature
  7. …Repeat….

here the judicial decision is just the signal indicating that it may be time for the legislature to reconsider the appropriateness of the law and revise if necessary.

Last edited 18 days ago by Peachy
T

Am talking out of my arse here. Still,

‘#1 it is not the job of courts to apply the law vastly differently to how it was intended when it written.

doesn’t this presume that “how the law was intended” is some kind of fixed and known quantity and quality?

I think that this is the wrong presumption to make.

The law is the law and how it applies to particular circumstances is precisely what the courts are there to work out. As best they can. Each time a case comes up.’

It depends on legal system is my understanding.

Under magna carta and british case law, it is a mix of tradition and previous judgement which need to be looked at. Hence the as society changes thing, and judges can make new laws by setting sweeping precedents.

In the US otoh, the written constitution, is what the framers of the constitution intended and nothing else. So no law can be created (by judiciary or executive) which contradicts the constitution.

This is because the states ratified ‘These United States…’ on the provision that the constitution would be supreme. Practically this means, if you do want abortion to be a right, or remove the 2nd amendment, technically, the only way to do it would be a constitutional convention, where a new constitution would be presented to the states, which then have the right to vote yay or nay.

Obviously, this is not how it really works, which is why you have incessant arguments about literal interpretations versus living document interpretations, and the activist courts like the 9th circuit keep trying to make pretend interpretations.

The key point is the US is not a democracy, it is a republic.

Peachy

None of which is to deny the reasonableness of your reasoning, merely to point out that judges can and should step back in cases where they risk bringing the legal system into (more) disrepute. Force legislators an electors to have the debate rather than make the judiciary a target.

how can they do that? I don’t think that they can actually refuse to rule.

they can include a missive in their judgement about how they are forced to rule a particular way despite this ruling not agreeing with community norms on morality and justice.

They can try to very tightly confine their judgement so it has very limited precedent value.

they can call the MPs they know well and privately agitate for future law review or change.

but I don’t think that they can outright refuse to deliver a judgement.

Peachy

Yes, that’s true – I guess that is another potential outcome.

but without knowing the ins and outs of the US judicial framework, seems to me like it would be a rare case where this would be available.

I mean, US does still seem to operate an adversarial system, so there would always be one party bringing the suit (alleging some sort of illegal wrongdoing or harm, which they would specify) and another party defending.

so it’s implicit within the complaint itself that it is covered by some law.

eg “X is suing Y alleging that Y caused her harm by impinging on X’s constitutional right to [have an abortion/own a revolver/vote/speak freely]”

Even if the court tries to make ‘no decision’ on the basis that there is no relevant law: “the constitution doesn’t give X the right to [vote/abortion/whatever]”…. the court still effectively makes a significant decision.

T

Really interesting Obergefell v. Hodges too.

If this keeps up, same sex marriage and decriminalization of homosexuality are also on their way out.

Given our culture is downstream the US, it’ll be interesting.

T

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Peachy

What is Obergefell v. Hodges?

T

Agreed 👍 that being said, executive is comprised, legislature is compromised, and now judiciary is under attack.

It’s hard to see how America will survive this without the military getting involved.

T

Mongolian thread weavers have a different take…

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Peachy

That is completely insane and doesn’t hold together.

a better story would be not that they banned abortions to cover up a falling abortion rate (due to their claimed destroyed fertility), but that they banned abortion to counteract the falling birth rate (per their claimed destroyed fertility)

T

Welcome to /pol 🙂

Peachy

What does this mean?

T

the /ga forum on 4chan used to be known as the mongolian basket weavers forum, but these days it just means its from somewhere on the chans.

this particular image was from 4chans /pol forum.

Peachy

Thanks T… I never got into the 4chan scene

i had thought it was mostly lewd pictures and stuff… but there is fun conspiracy posts too?

Reus's Large MEMBER

Given that 70% of pregnant women are having miscarriages (according to NSW health data), there could be something in this, trying to keep the birth rate up because of the death jabs

However that kinda does go against Bill Gates and his Eugenics idea, but does fit into the de-population thing.

Peachy

Given that 70% of pregnant women are having miscarriages (according to NSW health data), there could be something in this, trying to keep the birth rate up because of the death jabs

where is this data, I’d like to see it.

ideally in a time series, because I suspect that the ordinary background rate for miscarriages is pretty high. maybe 1-in-4, measured using the Peachy-Metric of “pee-stick positive test not resulting in live birth”

Peachy

I just pulled up some research by the Huggies Institute of Babyology confirming my guess of 1-in-4. Proud moment.

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Reus's Large MEMBER

Yes it was around 25%, it has now risen to 70%, Sen Gerard Rennick got it under a FOI request from NSW health, it was in the estimations hearing about 2 weeks ago that he brought it up, it is in one of his videos on his FB page.

Last edited 17 days ago by Reus's Large MEMBER
Reus's Large MEMBER

Unfortunately I stupidly did not save the video on my FB, and have not had the time to watch them all again to find which one it was in, he is quite prolific with posting those, it is very much worth watching some of the more recent ones too, he does not hold back on grilling the TGA.

T

holy shit! i thought they were joking/crazy. i really hope you are wrong.

pnut5678

Democrats looking to do mob rule again.

Aussie Soy Boy

Everyone has found their new thing

Gouda

Can’t say this is something I’ve been paying much attention to, but it did strike me as interesting that when this was leaked security at the court was increased immediately – like they knew this would make a lot of people angry. Some interesting theories that the GOP have done it to minimise any potential backlash before the November midterms which they’re widely tipped to do well in, but who really knows…

Lots of chatter that the leak will undermine the integrity of SCOTUS, but footage of a number of the judges supporting the decision testifying under oath that they wouldn’t touch Roe v Wade at their confirmation hearings is starting to get circulated – thus demonstrating that the judges have done a decent job of that themselves!

LSWCHP

Isn’t this this a proposal being circulated internally, hence the scandal over the leak? Nothing has actually been decided, so the leak is an attempt to put pressure on the other SCOTUS judges to not concur with the proposal.

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