Legal heathens, Constitutionalists, SCOTUS wannabes etc.

[BasicGreatGuy]

Do you believe Stare decisis plays an important role in the judicial branch of this Republic? If so, do you agree or disagree with Stare decisis?

 

[goldcatt]

Actually, I generally agree with stare decisis. I'm a pragmatist after all.

 

[goldcatt]

Whether it plays an important role in the judiciary depends on who sits on the bench. The principle ebbs and wanes like any other - but never disappears completely.

 

[lawbuff]

Do you believe Stare decisis plays an important role in the judicial branch of this Republic? If so, do you agree or disagree with Stare decisis?

Catt mentioned Lawrence v. Texas in another thread. I am familiar with it. The SC gives an overview of it and why they overruled Bowers.

I agree with it to a great extent, and in most cases, it should be followed.

There was a case, oh 5 or 6 years ago, where they had discussed overruling Miranda, as was moved to do, they declined.

 

[BasicGreatGuy]

Actually, I generally agree with stare decisis. I'm a pragmatist after all.

Does it make sense to base decisions on prior bad decisions? Do you find the notion of "settled law" to be a dangerous one?

 

[goldcatt]

Actually, I generally agree with stare decisis. I'm a pragmatist after all.

Does it make sense to base decisions on prior bad decisions? Do you find the notion of "settled law" to be a dangerous one?

Pragmatism in constitutional inerpretation isn't quite the same as pragmatism in politics, although I claim both. It means a non-originalist view that favors both a four corners reading and relicance on precedent - or settled law.

Stare decisis doesn't mean the principle never changes. It means the bench favors settled principles and requires a bigger push to overturn them, so to speak. Yes, in general settled principles are good and necessary. Justice above all should be reliable, right?

Of course, I say in general because every now and again you get a case where the Supremies must have been smoking crack, like Dred Scott or Bowers. They're human, they make mistakes, and they need to be able to overturn those mistakes when they are shown to be wrong. The bar just has to be higher.

 

[goldcatt]

Do you believe Stare decisis plays an important role in the judicial branch of this Republic? If so, do you agree or disagree with Stare decisis?

Catt mentioned Lawrence v. Texas in another thread. I am familiar with it. The SC gives an overview of it and why they overruled Bowers.

I agree with it to a great extent, and in most cases, it should be followed.

There was a case, oh 5 or 6 years ago, where they had discussed overruling Miranda, as was moved to do, they declined.

Bowers was wrongly decided. That's why it should have been overturned, and that's why it was overturned. Miranda was not wrongly decided IMO, although if you ask me some of its offshoots go too far. But Miranda itself should not be overturned.

 

[BasicGreatGuy]

Actually, I generally agree with stare decisis. I'm a pragmatist after all.

Does it make sense to base decisions on prior bad decisions? Do you find the notion of "settled law" to be a dangerous one?

Pragmatism in constitutional inerpretation isn't quite the same as pragmatism in politics, although I claim both. It means a non-originalist view that favors both a four corners reading and relicance on precedent - or settled law.

Stare decisis doesn't mean the principle never changes. It means the bench favors settled principles and requires a bigger push to overturn them, so to speak. Yes, in general settled principles are good and necessary. Justice above all should be reliable, right?

Of course, I say in general because every now and again you get a case where the Supremies must have been smoking crack, like Dred Scott or Bowers. They're human, they make mistakes, and they need to be able to overturn those mistakes when they are shown to be wrong. The bar just has to be higher.

In my opinion, the reliance on "settled law" has come to be very heavy upon the Court as well as the inferior courts. I am not suggesting that all precedents be ignored. However, I find it troubling that prior decisions are often used a legal buttrace, even if they are wrong in the legal eyes of those on the bench.

 

[goldcatt]

Does it make sense to base decisions on prior bad decisions? Do you find the notion of "settled law" to be a dangerous one?

Pragmatism in constitutional inerpretation isn't quite the same as pragmatism in politics, although I claim both. It means a non-originalist view that favors both a four corners reading and relicance on precedent - or settled law.

Stare decisis doesn't mean the principle never changes. It means the bench favors settled principles and requires a bigger push to overturn them, so to speak. Yes, in general settled principles are good and necessary. Justice above all should be reliable, right?

Of course, I say in general because every now and again you get a case where the Supremies must have been smoking crack, like Dred Scott or Bowers. They're human, they make mistakes, and they need to be able to overturn those mistakes when they are shown to be wrong. The bar just has to be higher.

In my opinion, the reliance on "settled law" has come to be very heavy upon the Court as well as the inferior courts. I am not suggesting that all precedents be ignored. However, I find it troubling that prior decisions are often used a legal buttrace, even if they are wrong in the legal eyes of those on the bench.

The point is, we are a nation of laws. Even if the judges sitting on the bench don't like the settled law, it must be applied with an even hand or there should be a darn good reason to change it. Settled law helps Lady Justice keep her blindfold on and her scales balanced. It also helps keep the rest of us from guessing what our rights are today. Change in the law can be slow, and frustrating, but that slow deliberate movement is necessary to keep the system as legitimate as possible when the people wearing the robes are mere mortals like ourselves.

 

[BasicGreatGuy]

Pragmatism in constitutional inerpretation isn't quite the same as pragmatism in politics, although I claim both. It means a non-originalist view that favors both a four corners reading and relicance on precedent - or settled law.

Stare decisis doesn't mean the principle never changes. It means the bench favors settled principles and requires a bigger push to overturn them, so to speak. Yes, in general settled principles are good and necessary. Justice above all should be reliable, right?

Of course, I say in general because every now and again you get a case where the Supremies must have been smoking crack, like Dred Scott or Bowers. They're human, they make mistakes, and they need to be able to overturn those mistakes when they are shown to be wrong. The bar just has to be higher.

In my opinion, the reliance on "settled law" has come to be very heavy upon the Court as well as the inferior courts. I am not suggesting that all precedents be ignored. However, I find it troubling that prior decisions are often used a legal buttrace, even if they are wrong in the legal eyes of those on the bench.

The point is, we are a nation of laws. Even if the judges sitting on the bench don't like the settled law, it must be applied with an even hand or there should be a darn good reason to change it. Settled law helps Lady Justice keep her blindfold on and her scales balanced. It also helps keep the rest of us from guessing what our rights are today. Change in the law can be slow, and frustrating, but that slow deliberate movement is necessary to keep the system as legitimate as possible when the people wearing the robes are mere mortals like ourselves.

I can't agree with knowingly applying a past flawed decision against current ones. And before you know it, you have decades worth of bad rulings based on bad interpretation of law. Why should the standard for review be higher than that of original standing?

Several of the SCOTUS' have stated that they believe Roe v Wade is bad law and that it should bave been left to the states. I agree with them. And yet, year after year, decision upon decision is made by the Court, based on the notion of "settled law." If the law were perfect and men were angels, I would concede your point gold.

Lawrence v Texas is an example, in my opinion. Kelo is another. There are many. In my opinion, the principle and practice of Stare decisis for the sake of Stare decisis is flawed and dangerous to this Republic. In my opinion, it creates a barrier where there shouldn't be. To my knowledge, there is no law that states that the SCOTUS must act in that manner.

 

[JakeStarkey]

But SCOTUS will act in this matter. Put two more conservatives on the court, and still it will not overturn Roe or Miranda. Chip at them, yes. Overturn, no. Why? They don't rise to a Dred Scott.

 

[BasicGreatGuy]

But SCOTUS will act in this matter. Put two more conservatives on the court, and still it will not overturn Roe or Miranda. Chip at them, yes. Overturn, no. Why? They don't rise to a Dred Scott.

The standard for review should not be higher than that of original standing, in my opinion. That is one of my points.

 

[goldcatt]

In my opinion, the reliance on "settled law" has come to be very heavy upon the Court as well as the inferior courts. I am not suggesting that all precedents be ignored. However, I find it troubling that prior decisions are often used a legal buttrace, even if they are wrong in the legal eyes of those on the bench.

The point is, we are a nation of laws. Even if the judges sitting on the bench don't like the settled law, it must be applied with an even hand or there should be a darn good reason to change it. Settled law helps Lady Justice keep her blindfold on and her scales balanced. It also helps keep the rest of us from guessing what our rights are today. Change in the law can be slow, and frustrating, but that slow deliberate movement is necessary to keep the system as legitimate as possible when the people wearing the robes are mere mortals like ourselves.

I can't agree with knowingly applying a past flawed decision against current ones. And before you know it, you have decades worth of bad rulings based on bad interpretation of law. Why should the standard for review be higher than that of original standing?

Several of the SCOTUS' have stated that they believe Roe v Wade is bad law and that it should bave been left to the states. I agree with them. And yet, year after year, decision upon decision is made by the Court, based on the notion of "settled law." If the law were perfect and men were angels, I would concede your point gold.

Lawrence v Texas is an example, in my opinion. Kelo is another. There are many. In my opinion, the principle and practice of Stare decisis for the sake of Stare decisis is flawed and dangerous to this Republic. In my opinion, it creates a barrier where there shouldn't be. To my knowledge, there is no law that states that the SCOTUS must act in that manner.

The problem is when some Justices believe a decision was made wrongly, but the majority feel it was the correct decision. Which is why the bar needs to be set higher to overturn settled law than to answer an unanswered question.

Take Roe, for example. Depending on your particular brand of constitutional interpretation, it could make perfect sense (actually Roe is itself the progeny of the seminal right to privacy cases in the early 20th century, but we'll set that aside for now) or it could be anathema. Not because of its subject matter, but because the right to privacy is not enumerated. Fair enough, you're as entitled to your opinion as I am to mine.
I understand originalists can have a problem with naming the unenumerated rights implied in the Ninth, or with reading the document from a four corners viewpoint to try to discover what was intedned by the statement. But that's one of the points of stare decisis. A single point of view, no matter what "side" or how legitimate, will always be in the minority. For a case to truly be wrongly decided, it has to be more than one "side" seeing the error and wanting to change it. That makes it more objective.

 

[goldcatt]

But SCOTUS will act in this matter. Put two more conservatives on the court, and still it will not overturn Roe or Miranda. Chip at them, yes. Overturn, no. Why? They don't rise to a Dred Scott.

There are some basic principles that are universal to all "sides". Dred Scott violated at least two of those. Miranda, none. Roe...I've seen arguments for one, but they're not persuasive in my mind. Too one-sided, not objective enough when looking at the entire line of cases of which Roe is merely one.

 

[BasicGreatGuy]

The point is, we are a nation of laws. Even if the judges sitting on the bench don't like the settled law, it must be applied with an even hand or there should be a darn good reason to change it. Settled law helps Lady Justice keep her blindfold on and her scales balanced. It also helps keep the rest of us from guessing what our rights are today. Change in the law can be slow, and frustrating, but that slow deliberate movement is necessary to keep the system as legitimate as possible when the people wearing the robes are mere mortals like ourselves.

I can't agree with knowingly applying a past flawed decision against current ones. And before you know it, you have decades worth of bad rulings based on bad interpretation of law. Why should the standard for review be higher than that of original standing?

Several of the SCOTUS' have stated that they believe Roe v Wade is bad law and that it should bave been left to the states. I agree with them. And yet, year after year, decision upon decision is made by the Court, based on the notion of "settled law." If the law were perfect and men were angels, I would concede your point gold.

Lawrence v Texas is an example, in my opinion. Kelo is another. There are many. In my opinion, the principle and practice of Stare decisis for the sake of Stare decisis is flawed and dangerous to this Republic. In my opinion, it creates a barrier where there shouldn't be. To my knowledge, there is no law that states that the SCOTUS must act in that manner.

The problem is when some Justices believe a decision was made wrongly, but the majority feel it was the correct decision. Which is why the bar needs to be set higher to overturn settled law than to answer an unanswered question.

Take Roe, for example. Depending on your particular brand of constitutional interpretation, it could make perfect sense (actually Roe is itself the progeny of the seminal right to privacy cases in the early 20th century, but we'll set that aside for now) or it could be anathema. Not because of its subject matter, but because the right to privacy is not enumerated. Fair enough, you're as entitled to your opinion as I am to mine.
I understand originalists can have a problem with naming the unenumerated rights implied in the Ninth, or with reading the document from a four corners viewpoint to try to discover what was intedned by the statement. But that's one of the points of stare decisis. A single point of view, no matter what "side" or how legitimate, will always be in the minority. For a case to truly be wrongly decided, it has to be more than one "side" seeing the error and wanting to change it. That makes it more objective.

I knew I would be in the minority on this.

It is my contention, that cases are being decided on the premise of "settled law," even though the majority is there. I believe this passive attribute is part of what has created such a legal wall gold.

 

[goldcatt]

I can't agree with knowingly applying a past flawed decision against current ones. And before you know it, you have decades worth of bad rulings based on bad interpretation of law. Why should the standard for review be higher than that of original standing?

Several of the SCOTUS' have stated that they believe Roe v Wade is bad law and that it should bave been left to the states. I agree with them. And yet, year after year, decision upon decision is made by the Court, based on the notion of "settled law." If the law were perfect and men were angels, I would concede your point gold.

Lawrence v Texas is an example, in my opinion. Kelo is another. There are many. In my opinion, the principle and practice of Stare decisis for the sake of Stare decisis is flawed and dangerous to this Republic. In my opinion, it creates a barrier where there shouldn't be. To my knowledge, there is no law that states that the SCOTUS must act in that manner.

The problem is when some Justices believe a decision was made wrongly, but the majority feel it was the correct decision. Which is why the bar needs to be set higher to overturn settled law than to answer an unanswered question.

Take Roe, for example. Depending on your particular brand of constitutional interpretation, it could make perfect sense (actually Roe is itself the progeny of the seminal right to privacy cases in the early 20th century, but we'll set that aside for now) or it could be anathema. Not because of its subject matter, but because the right to privacy is not enumerated. Fair enough, you're as entitled to your opinion as I am to mine.
I understand originalists can have a problem with naming the unenumerated rights implied in the Ninth, or with reading the document from a four corners viewpoint to try to discover what was intedned by the statement. But that's one of the points of stare decisis. A single point of view, no matter what "side" or how legitimate, will always be in the minority. For a case to truly be wrongly decided, it has to be more than one "side" seeing the error and wanting to change it. That makes it more objective.

I knew I would be in the minority on this.

It is my contention, that cases are being decided on the premise of "settled law," even though the majority is there. I believe this passive attribute is part of what has created such a legal wall gold.

How is following settled law "passive"?

Cases are decided by applying the inverse pyramid - broad principles focused and applied to very narrow, specific sets of facts. Are you advocating the narrow, specific and unique set of facts should be more important than the broad principle?

 

[BasicGreatGuy]

The problem is when some Justices believe a decision was made wrongly, but the majority feel it was the correct decision. Which is why the bar needs to be set higher to overturn settled law than to answer an unanswered question.

Take Roe, for example. Depending on your particular brand of constitutional interpretation, it could make perfect sense (actually Roe is itself the progeny of the seminal right to privacy cases in the early 20th century, but we'll set that aside for now) or it could be anathema. Not because of its subject matter, but because the right to privacy is not enumerated. Fair enough, you're as entitled to your opinion as I am to mine.
I understand originalists can have a problem with naming the unenumerated rights implied in the Ninth, or with reading the document from a four corners viewpoint to try to discover what was intedned by the statement. But that's one of the points of stare decisis. A single point of view, no matter what "side" or how legitimate, will always be in the minority. For a case to truly be wrongly decided, it has to be more than one "side" seeing the error and wanting to change it. That makes it more objective.

I knew I would be in the minority on this.

It is my contention, that cases are being decided on the premise of "settled law," even though the majority is there. I believe this passive attribute is part of what has created such a legal wall gold.

How is following settled law "passive"?

Cases are decided by applying the inverse pyramid - broad principles focused and applied to very narrow, specific sets of facts. Are you advocating the narrow, specific and unique set of facts should be more important than the broad principle?

Passive meaning what I have been talking about, in regards to continuing on with foundational bad decisions seeing them as "settled." It shouldn't take a higher standard to review in my opinion.

I didn't think we would agree on this issue. I know how cases are decided. Hence the reason for the thread.

 

[goldcatt]

I knew I would be in the minority on this.

It is my contention, that cases are being decided on the premise of "settled law," even though the majority is there. I believe this passive attribute is part of what has created such a legal wall gold.

How is following settled law "passive"?

Cases are decided by applying the inverse pyramid - broad principles focused and applied to very narrow, specific sets of facts. Are you advocating the narrow, specific and unique set of facts should be more important than the broad principle?

Passive meaning what I have been talking about, in regards to continuing on with foundational bad decisions seeing them as "settled." It shouldn't take a higher standard to review in my opinion.

I didn't think we would agree on this issue.

And you were right.

So what about the privacy cases so you believe is wrongly decided?
I'm going to treat them as a whole because they are an unbroken line, from Pierce v Society of Sisters through the modifications and restrictions on Roe.

 

[goldcatt]

I'm off to la-la land! I'll check back though. This is good.
G'night!