Roe is gone! :D

[Geronimo]

Precedent is crucial to how our law system works. That doesn't mean it can never be reviewed, but most of the rule of law that the Supreme Court has is based on precedent. If it isn't for precedent, then you just have a new law when you have a new Supreme Court Justice or two. Which also means that the Executive and Legislative have less reason to treat the Court seriously (much less the people).

Because different lawyers, even top tier ones, disagree about what the law should be (if precedent is ignored).

JM

Maybe they should treat the court less seriously. It's the least democratic of the branches of government. However, I agree that it should be clear how laws will be interpreted. That requires a conservative interpretation. Extrapolating completely new content to be applied as law is anathema to such clarity, as is allowing it to stand for decades where it can serve as a basis for even more legislative content of judicial origin.

Nobody could have foreseen the expansions of the constitution and laws that these past court decisions have inovated when the actual legislation and constitution they are supposedly derived from were enacted.

Preservation of precedent only works when it resolves ambiguity in law. Not when it expands the content.

[Elok]

Thing is, there's sort of a subtext to this whole argument that, well, yeah, the Supreme Court has been making up bull**** for decades, just pretending to find whatever progressive happened to want at the moment in the 9th or 14th Amendments or somewhere like that. And some of the bull**** was actually pretty good stuff if you ignore the part where it's totally bull**** and you could argue just as well that the "constitutional right to privacy" or whatever protects wife-beating and meth-cooking. We like interracial marriage and contraception and we're slowly coming around on the gay marriage thing. So there's understandable reticence when it comes to rocking the boat and admitting it was all bull**** from the start. Even Alito tried to paper over that part. Thomas was the only honest justice, probably because he's old and mean and doesn't care anymore.

At this point, whatever bull**** we personally happen to like is acting as a shield or bodyguard for the rest, and if allowed to go on indefinitely we would wind up with a century's worth of utterly concocted "precedent" everybody is afraid to touch lest it all come tumbling down. As it is we only have half a century, and still nobody wants to face it. But it was never going to last because conservatives are not complete morons, they knew what was happening, and after fifty damn years they worked up a critical mass of people willing to knock the whole stupid tower of blocks down. Good on them. You want out of the hole, stop digging, etc.

[Uncle Sparky]

You will be missed when you're rounded up and executed.

[Uncle Sparky]

[Geronimo]

Sounds like there's some old precedent in the church that needs some re-examination as well.

[Jon Miller]

The English system is based on precedent. Their system seems more robust than ours. Even more than ours, and we use common law and so we are similar. I think that precedent can be part of a robust system of governance, if people are willing to respect it and you allow for a bit of movement.

A bit of movement was Robert's position on Roe.

Thomas, and maybe Alito and several others, are taking a hatchet to our common law precedent based legal system. Since they are at the top of it, we are going to find ourselves with weaker law.

JM

[Geronimo]

The English system is based on precedent. Their system seems more robust than ours. Even more than ours, and we use common law and so we are similar. I think that precedent can be part of a robust system of governance, if people are willing to respect it and you allow for a bit of movement.

A bit of movement was Robert's position on Roe.

Thomas, and maybe Alito and several others, are taking a hatchet to our common law precedent based legal system. Since they are at the top of it, we are going to find ourselves with weaker law.

JM

Stronger law is not better law. It depends on how the law can originate.

[Elok]

Precedent works fine as long as everybody respects it. But that's the whole problem; the Roe decision was never a respected precedent, however half the country tried to pretend it was. Roe, along with a large number of other cases from the past half-century or so, depends on our pretending that documents from 150 years ago or more implicitly support the things we want even though said documents never allude to these concepts in even the vaguest way. The absurdity is not hard to see--I think it was Scalia's dissent in Obergefell which pointed out that, by the prevailing judges' logic, every single state in the union had been violating the Constitution for a century or more and nobody noticed. It's plain that very few if any people in 1868 would have believed that equal protection under the law meant two men can marry, including the people who wrote the amendment used to support the Obergefell decision. It's all bloody nonsense from top to bottom, however much we want or do not want gay marriage on its own merits, and there's no point asking people who disagree to respect a precedent with no firm grounding in the rules it's supposed to be following. Not when any reasonably-educated schoolchild can tell you that segregation was a precedent for a long time too.

Now, the Roe situation is somewhat better in that I've seen arguments to the effect that early American law originally followed English custom and considered abortion okay before quickening, but this is largely coincidence as we do not really give a damn what people in the early nineteenth century considered just or proper in any other respect. They're only being brought up to point out that Alito's "rooted in tradition" argument is on shaky ground, which it is depending on which tradition you mean. But all this is hypocritical theater in the first place; if manuals of colonial jurisprudence universally called for women who had early-term abortions to be put in the stocks and pelted with rotten cabbage and offal, progressives would be ignoring that to double down on their usual people-in-the-past-were-ignorant-savages line. The point is "arguments that get us the thing we want are good," and everyone knows it. This kind of "precedent" is not stable, cannot be stable, and the sooner we chuck it in the trash the better off we'll be in the long run.

[Uncle Sparky]

You really don't realize you are supporting an American Taliban. So far, it is even less Christian than the Taliban is Muslim.

[Geronimo]

Teacher led prayer in reference to the coach praying on the football field? Do you know anything about that case at all?

[Uncle Sparky]

I watched the video, I know he was fired. I know he moved to another state (which, in itself, under US law should have ended all appeals). I know the Justices saw a video of him leading a prayer session on the field, but lied in their actual judgement... What did I miss?

[PLATO]

Precedent is certainly a useful tool, but is not the end all. Bad decisions should be overturned. A great and obvious example is Plessy vs Ferguson. If precedent was the end all, then that would still be the law of the land. Legally, Roe was poorly reasoned and poorly written. It is one thing to agree with an outcome and a different thing to recognize that it was legally a good decision. I believe in a reasonable abortion period (15 weeks, as Jon suggested, seems reasonable), but that does not mean that I believe the court erred in overturning Roe.

The truth is that Roe only came about because those who stand for election didn't have the guts to do what was necessary...and they still don't. Their only alternative to doing their job is to vilify the court for doing its job.

[Uncle Sparky]

Kennedy v Bremerton School District

OVERTURNED!!!

If you want to make your public school students kneel and pray with you, you can!

[Uncle Sparky]

Yes. You can easily access video of the coach standing on the field, football helmet in one hand the other hand pointed skywards, his players in uniform kneeling around him, while he's praying... real subtle. And the Justices had access to this and concluded he prayed quietly by himself, away from student, the same as texting a restaurant reservation.
So the 'justices' continue to knowingly lie to change laws.

[Uncle Sparky]

... What did I miss?

[Elok]

So far as I know, nobody has testified that he required them to do anything, or even that they felt pressure to do so. That is to say, he didn't "make" them do anything. Now, it's entirely possible that they felt pressure to comply, and certainly the decision misrepresents the facts of the case, but there is no actual evidence of compulsion here. But possibly this was just you being sloppy with words.

[ZEE]

There is no separation of Church and State. Its the same motivation.

[Geronimo]

Kennedy v Bremerton School District

OVERTURNED!!!

If you want to make your public school students kneel and pray with you, you can!

Not according to SCOTUS you can't. The decision made clear it did not cover mandated religious actions.

[Elok]

Wow, you did not research the case at all, did you?

[Uncle Sparky]

Watch the video. Wow.

[Jon Miller]

I haven't looked at details but the prayer by a football coach outside of a classroom doesn't seem to be particularly problematic.

I think Vega v. Tekoh and Shinn v. Ramirez are the worse decisions of this Court. At least Dobbs v. Jackson has the benefit of, if one ignores precedent and what it means to disregard precedent, being in some ways reasonable.

JM

[Jon Miller]

That isn't to say that I disagree with Roberts. I agree with him, the best approach is to work around Roe v. Wade or remove the relevance as he would have done with Dobbs v. Jackson (recall that he sided with Mississippi, he just didn't overturn Roe v. Wade).

JM

[Geronimo]

Wow, you did not research the case at all, did you?

https://www.law.cornell.edu/supremecourt/text/21-418