[tptacek]

Rayiner has written at length and persuasively about Citizen's United and is, on this issue, clearly engaging in good faith. You disagree with him, which is unsurprising, but not an indication of falsity on his part. If you feel like someone isn't discussing things in good faith with you, the right response is to stop discussing.

Assume good faith

https://news.ycombinator.com/newsguidelines.html

[skhunted]

I’m not assuming it was in bad faith. It is a bad faith argument to say that Citizens was merely about allowing a group of people to make a movie about Hilary Clinton.

Do you think he is immune to making bad faith arguments? That he has argued in good faith in the past does not mean he can’t argue in bad faith in the future.

Dred Scott was just about property rights and how the government shouldn’t be allowed to take your property.

[rayiner]

Legal precedents are about the facts and law at issue in the case. Courts do not weigh in on larger policy debates in society.

Your suggestion that Dred Scott was “about property rights” and slavery was incidental is blatantly inaccurate. It was a lengthy legal defense of the institution of black slavery as such: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

In your view, what should the Supreme Court have ruled in Citizens United? That movies made through corporate entities aren’t protected by the first amendment?

[skhunted]

Courts do not weigh in on larger policy debates in society.

It is entirely naive to think this of SCOTUS decisions in landmark cases. It is naive to think these 9 people are immune to political considerations of their decisions. It’s the legal equivalent of the story we tell children about Washington chopping down the cherry tree. It’s a feel good notion to think that SCOTUS justices don’t weigh in on larger policy debates and this notion has no basis in reality.

SCOTUS is political institution that weighs in on legal and occasionally political matters. It’s a balancing act they must perform if they wish to preserve the integrity of the institution. When they act as they have in recent years the possibility arises that people lose confidence in it and thus erode its power/prestige.

This is true of all institutions that oversee governance of a nation. When things get too out of balance political forces, sometimes in the form of violence, effect the necessary changes to reach a new equilibrium that the populace is sufficiently satisfied with.

[rayiner]

It’s also toxic to talk about legal decisions only in terms of the political implications while ignoring the legal ones.

The way you are talking about law bears no resemblance to how law should work. It’s worth zooming out and looking at how constitutional law works in other countries. For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating. For example on Loper: https://balkin.blogspot.com/2023/10/chevron-viewed-from-fran... (“The first point to make here is that in European legal systems, it is the responsibility of the courts to give a definitive interpretation of the law, not the executive, and as a result any such interpretation by the administration (including administrative agencies) is subject to review by courts.”)

Likewise with Dobbs, France’s Macron criticized that decision. But French courts had never recognized some supra-legislative right to abortion, and the European Court of Human Rights had repeatedly declined to overturn Ireland’s and Poland’s abortion bans (despite having a more explicit privacy right to work with).

French courts have similarly refused to intervene to strike down hijab bans. The German high court last year rejected a challenge to Bavaria’s law requiring display of Christian crosses in public buildings. It’s not because those countries don’t have constitutional text that could be interpreted to strike down those laws. It’s because European courts aren’t lawless and for the most part, follow what the law really says instead of distorting it for political considerations.

What you’re advocating for is a departure from international standards that makes us more like a third world country.

[skhunted]

It’s because European courts aren’t lawless and for the most part, follow what the law really says instead of distorting it for political considerations.

This might be the case now but won’t be always true. Any institution has to the capacity to try to go rogue so to speak. I don’t know the power of Germany’s high court or what the limits of their powers are or what sort of political forces are at play that those courts must balance. But those decisions certainly had political considerations behind them.

What you’re advocating for is a departure from international standards that makes us more like a third world country.

That departure happened centuries ago with Marbury v. Madison. Politically motivated rulings have occurred ever since. More so than in most countries.

For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating.

I’m not advocating for this. It’s a fact of what the court is. I’m recognizing human nature and the tendency of how humans sometimes act when too much power is given to too few people. Since Marbury v Madison the court became a political institution. Sometimes as a force for good and sometimes as a force for bad.

For 40 years Congress has written regulations with the knowledge and understanding that Chevron was the standard. Now the Court reverses itself. This has huge implications. The dissenting opinions do a much better job than I can on explaining why this decision is garbage. It is now the case that 40 years of laws need to be rewritten and everyone knows that the Republicans are never going to rewrite legislation that can in any way lower corporate profits.