Roe vs Wade vs SCOTUS legitimacy

[Dill]

(12-05-2021, 07:47 PM)Belsnickel Wrote: Sociopathicsteelerfan Wrote:[i]You made some very good points that I omitted, but I wanted to focus on this.  I think it absolutely must be emphasized that this is a sword that cuts both ways.  Every POTUS nominates justices that they believe will make decisions compatible with their beliefs.  In this regard neither side is different.  Why is Sotomayor or Kagan given a pass on partisanship, which they both clearly are, but the conservative justices are not?  The answer to that goes a long way towards explaining the opinions I posted earlier.

Oh, I don't disagree at all. There are plenty of progressive court rulings I have disagreed with as I maintain they were made with an eye towards politics rather than the Constitution. My issue is that the first step we need to make as a country towards any sort of reform of the judiciary is to stop pretending they are above politics.

I sort of agree with the bolded; though it requires some disambiguation. 

Just because presidents appoint justices who will "make decisions compatible with [the president's] beliefs," and justices then do just that when seated, doesn't mean all are guilty of some nefarious "partisanship" and/or acting "with an eye towards politics rather than the Constitution." 

It isn't possible for presidents to nominate and justices to rule without employing some "partisan" conception of the common good. By "not possible" I mean the notion of politics-free judgment in politics is conceptually incoherent at its root. (I believe you were making this point in a previous post.) If there were such a thing as politics-free judgment, our current system of liberal democracy could not operate with it. 

That means we ought to be judging SCOTUS nominations and decisions on some ground other than the expectation they be "above politics." (If I understand you, we agree about this.) Rather, everything depends on the "partisan beliefs" in question. (Not sure if you agree with me about this.) For people who thought that blacks were inferior to whites and the U.S. was founded as a Saxon nation, the Dredd Scott decision was both derived from and clarifying/defining Constitutional principle. People who disagree with that decision generally do so not because they are less partisan (quite the opposite), but because the are proceeding from different extra-Constitutional principles than Justice Taney.

Everything also depends on what might be called political or civil culture, the unwritten standards of the voting populace regarding what constitutes fair play--the kind of judgment which operates through and around explicitly political actions like proposing legislation and interpreting the Constitution from the bench. You remember FDR's attempts to pack the courts were opposed by members of his own party, but the Supreme Court also moderated its behavior following that episode. The Democrats opposing FDR were not acting "above politics," but upholding a particular version of it opposed to the president's in that case. 

The danger in acknowledging the bolded above, though, is that many will draw a different conclusion from it than I would, perhaps from you too. For them, "its all politics" validates an anti-democratic politics of the sort playing out in Trump's slow moving coup. This group doesn't simply include avid Trump supporters, but also those who can't see how this constitutes a great threat to liberal democracy as we have known it. "Both sides" are assumed to be playing the same "biased" or "partisan" game. Lost in the equivocation is the ability to discern what sort of actions support a liberal democratic political system and which render it dysfunctional or broken.

NB: I am still working through the position presented here, not certain of all its implications; so it is not "fixed" yet. Interrogation from any angle is welcome.