Sunday, May 22, 2016

Lots Of 5-4 Decisions By SCOTUS Are A Problem, In Part Because Ideologically-Motivated Decisions Are A Problem

   Here's a related something at the Atlantic.
   5-4 decisions are a problem because they are evidence that the answer to the relevant legal question is not clear. Consistently ruling on questions without clear answers would be bad by itself...but the justices tend to line up according to liberal/conservative preferences/presuppositions about the conclusion. And that is evidence that it is political orientation rather than legal reasoning that is driving the decisions.
   And that seems to mean that the branch of government that is supposed to be most isolated from and immune to mere majority preference is, in fact, largely just another expression of majority preference...if, (perhaps!) a slightly less direct one.
   On the face of it, this should concern everyone a lot...shouldn't it?
   And this should be an avoidable problem. It's very difficult to believe that over and over again an honest, rational, legal evaluation of the legal arguments somehow leads to four justices on each side consistently ruling in accordance with their personal political orientations. This sort of thing should be avoidable in part were justices to just abstain when they think that there's no clear legal conclusion to be drawn. Or is there some official "not clear" ruling? If the answer isn't clear, shouldn't that mean that the...what...complainant? Prosecution? Anyway...whoever has the burden of proof has failed to carry it?
   Anyway...all this is worrying me a lot.


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