[pdpi]

> For many years I wanted to believe they had a consistent and defensible legal viewpoint, even if I thought it was misguided.

Watching from across the Atlantic, I was always fascinated by Scalia's opinions (especially his dissents). I usually vehemently disagreed with him on principle (and I do believe his opinions were principled), but I often found myself conceding to his points, from a "what is and what should be are different things" angle.

[Nicook]

Scalia wrote some really interesting opinions for sure. Feel like the arguments are only going to get worse :(

[tialaramex]

Because in practice the US Supreme Court is a partisan body, the United States is deprived of the potential for excellent jurists you'd expect with a population of hundreds of millions and some of the world's best law schools. Only a subset of your best will exhibit the desired partisan skew.

Despite the larger population and improved access, my guess is that the quality of Supreme Court Justices today is probably worse than in 1927 when it decided Buck v Bell (which says it's fine for states to have a policy where they sterilize "unfit" citizens, straight up Eugenics)

[0xDEAFBEAD]

How would you suggest selecting jurists in a way that doesn't introduce partisan incentives?

[roryirvine]

It would be worth looking at how other countries with comparable legal systems do it.

Eg., members of the Supreme Court of the UK are appointed by the King on the advice of the Prime Minister. The Prime Minister is required by law to recommend the person nominated by an independent commission.

The selection must be made on merit, in accordance with the qualification criteria of section 25 of the Act, of someone not a member of the commission, ensuring that the judges will have between them knowledge and experience of all three of the UK's distinct legal systems, having regard to any guidance given by the Lord Chancellor, and of one person only.

https://en.wikipedia.org/wiki/Justice_of_the_Supreme_Court_o...

This seems to work fairly well and, although specific decisions are argued over as part of normal political discourse, it is generally seen as being non-partisan.

Ireland (which also has a common law legal system) has a similar setup, with the President appointing supreme court justices based on the recommendation of the government who, in turn, are advised by an independent panel. That advice is technically not legally binding, so this is in theory a less-strictly non-partisan system - but in practice it works out about the same.

[0xDEAFBEAD]

If creation of independent nonpartisan panels is so easy, why not just have such a panel govern the entire country?

Any country which struggles to appoint justices in a nonpartisan way will also struggle to assemble a panel in a nonpartisan way, I think.

[wasimanitoba]

I think the difference is that you can specify independently verifiable criteria for the selection process and require participants to decide based on those criteria alone without forcing them to become political actors who must directly bear the consequences of political decisions.

Not totally immune to issues of partisanship, but at least somewhat insulated.

[gcanyon]

It works fairly well because your PM and King aren't complete loons. At the end of the process there has to be someone making decisions, and when that person is a narcissistic 8-year-old in an 80-year-old's body, bad things are going to happen no matter how the system is written.

[tialaramex]

Given that the current system maximises partisan bias, it's actually hard to do worse.

Ideally you'd want to reform this hierarchically, but supposing we can only fix that final court, you want say a committee consisting of roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court, a couple of retired judges from this court (if it had age limits, but today it does not) or the courts below it who've done this job, and five otherwise unconnected citizens (no specific business before any court now or expected) chosen at random the way most countries pick their juries.

That committee is to deliver a list of several people best qualified to fill any vacancies on the court which arise before the next committee does the same, if such a vacancy arises you just go down the list.

[0xDEAFBEAD]

>roughly a couple of academics who've taught this stuff, a couple of real on-the-ground attorneys who've argued before this court

How are these members of the committee chosen then? Seems like you're just moving the problem around, if choice of committee member is also subject to partisan incentives.

[Rapzid]

Amy Coney Barrett has somewhat taken up the mantel, but her legal reasoning is probably superior.

Thomas wants to pretend he's the OG originalist, but I don't think he is anywhere near Barrett's peer.