Supreme Court has voted to overturn abortion rights, draft opinion shows

[Admiral Yi]

 

[The Larch]

Would establishing a mandatory retirement age be legal/possible/desireable? Put it at 70 and Thomas and Alito  are gone, for instance.

Edit: Or term limit. Put it at 30 years, and Thomas is gone. Hell, put it at 20 and he is the only one gone still. Put it at 15 and Thomas, Alito and Roberts are all gone.

[Syt]

Have them serve for terms of 10 years. They can serve for a max of 3 or 4 terms. And they have to be re-confirmed for each term.

Of course in the current climate it would probably quickly shrink the court to 1 or 2 justices.

[Tonitrus]

Would establishing a mandatory retirement age be legal/possible/desireable? Put it at 70 and Thomas and Alito  are gone, for instance.

Edit: Or term limit. Put it at 30 years, and Thomas is gone. Hell, put it at 20 and he is the only one gone still. Put it at 15 and Thomas, Alito and Roberts are all gone.

Yes, but all the options would require a constitutional amendment, which is practically impossible unless the issue is popular to both sides.  This won't be, because like a lot of electoral reforms, the folks currently in power/control will never chuck the system that put them there.

[The Minsky Moment]

This is the legal realist position (and I think also in critical legal studies - which of course gave us the dreaded critical race theory) in the US

CLS is distinct from critical race theory, and there is no lineal connection in that sense.

The new textualism was supposed to be the conservative response to realism, and the doctrines and canons of restraint were also a key aspect of that response.  What we saw in the last term, however, was a casting off of the canons of restraint and a return to the bad, old naive textualism.  So it is not surprising to see realism roaring back into fashion. 

[The Minsky Moment]

How many people come to judgments at odds with what they want? What percent of the legal community wants abortion to be illegal but thinks that Roe v. Wade was correctly decided, or vice versa?

You have a point, there is a clear connection.  But the connection in part is an aspect of the legal interpretive exercise. If the question is phrased whether a particular right is inherent in the constitutional design, the answer to that question is going to turn quite a bit on what one's views are the merits of the matter at issue.

But the question posed to the Court in Dobbs wasn't merely whether Roe was rightly or wrongly decided back in 1973.  It was what to do in 2022, after Roe had been law for 50 years, after it had been supplemented and elaborated on by two generations of jurists, and after it had become woven into the fabric of society.  For a small "c" conservative those facts presented considerations that had to be taken into account.  And thus justices like Roberts and Kennedy - who certaintly thought Roe was not rightly decided back in the day - pulled back from overthrowing it entirely despite that view.

[The Minsky Moment]

Would establishing a mandatory retirement age be legal/possible/desireable? Put it at 70 and Thomas and Alito  are gone, for instance.

Edit: Or term limit. Put it at 30 years, and Thomas is gone. Hell, put it at 20 and he is the only one gone still. Put it at 15 and Thomas, Alito and Roberts are all gone.

Fixed terms ~ 15 years.  That would also pull back on the recent mischief of discriminating against older nominees.
And the Senate must act on an appointment within 90 days or the justice is automatically confirmed.

[Oexmelin]

Life tenure is difficult to work around, AFAIK ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour"), but the Constitution is silent on the internal organization of the court, and I don't think anything prevents re-organizing it into sections and benches, where only a few of a larger pool of judges sit on any one case.

[Sheilbh]

CLS is distinct from critical race theory, and there is no lineal connection in that sense.

Oh sorry I thought critical race theory had emerged from CLS which is one of the reasons it was always a little implausible it was being taught to 15 year olds

Fixed terms ~ 15 years.  That would also pull back on the recent mischief of discriminating against older nominees.
And the Senate must act on an appointment within 90 days or the justice is automatically confirmed.

Yes to both. I think it is slightly mad and a sign of what's gone wrong that the people who are nominated to the Supreme Court which in theory should be a source of sagacity, experience and deep knowledge of the law is, in recent years, probably the youngest branch of American government.

[The Minsky Moment]

Oh sorry I thought critical race theory had emerged from CLS which is one of the reasons it was always a little implausible it was being taught to 15 year olds

Derrick Bell taught at Harvard Law School, which was a hotbed of the early CLS scholars.  So these were people who knew each other and the CLS people were supportive of Bell and his work. Their work both had the name critical attached to it, presumably in each case as a nod to the Frankfurt School.  Critical race theory came out of Bell's own experience as a civil rights lawyer and how that experience was incorporated in his teaching and in his civil rights law casebook.  The timeline is a bit hazy but I believe Bell had already established his basic approach to civil rights law before CLS took off as a coherent movement.

[Josquius]

Found this interesting. Some cringe worthy anecdotes about the hypocrisy of some anti choicers.

https://joycearthur.com/abortion/the-only-moral-abortion-is-my-abortion/

I've often wondered with many of these extremists. It's like they know they're the villains but they're in this sub culture where everyone is deluding each other and pretending to believe nuttier and nuttier things, none realising they're all putting on an act to try and gain power from being the lead sociopath.

[alfred russel]

Bullshit.

Objectivity is hard, but it is hardly impossible.

In general, humans mostly suck at it, but this idea that just because most people aren't objective, it means that everyone is not objective, is simply false.

Most people cannot dunk a basketball. That doesn't mean that the people who can are all lying about it, or that the evidence of your eyeballs watching someone dunk is somehow fake. You can evaluate the logical validity and cohesiveness of an argument, even your own if you have the fortitude to do so.

Just saying "Well, my argument might be sophistry, but so is yours!" is lazy and dishonest.

There is already a full suite of arguments for and against major constitutional disagreements that will be well known by a potential supreme court nominee decades before he or she is nominated. There isn't a logical proof on any of the topics like there would be in math class.

If we are talking about some new not overly partisan tax or regulatory issue that comes to the USSC, yeah there will be fresh thinking and independent thought. On something like abortion though...

[alfred russel]

How many people come to judgments at odds with what they want? What percent of the legal community wants abortion to be illegal but thinks that Roe v. Wade was correctly decided, or vice versa?

You have a point, there is a clear connection.  But the connection in part is an aspect of the legal interpretive exercise. If the question is phrased whether a particular right is inherent in the constitutional design, the answer to that question is going to turn quite a bit on what one's views are the merits of the matter at issue.

But the question posed to the Court in Dobbs wasn't merely whether Roe was rightly or wrongly decided back in 1973.  It was what to do in 2022, after Roe had been law for 50 years, after it had been supplemented and elaborated on by two generations of jurists, and after it had become woven into the fabric of society.  For a small "c" conservative those facts presented considerations that had to be taken into account.  And thus justices like Roberts and Kennedy - who certaintly thought Roe was not rightly decided back in the day - pulled back from overthrowing it entirely despite that view.

And in 1973 the opposite situation was the case.

[The Minsky Moment]

And in 1973 the opposite situation was the case.

Not so - Roe was the first USSC case to consider a constitutional challenge to abortion laws. I suppose one could argue it hadn't been challenged before because it would be assumed that such a challenge would fail - although the same reasoning could be used to undermine the NYS Rifle case. But either way, Roe did not involve a challenge to established court precedent, much less an established precedent that had been reaffirmed several times over the intervening 50 years.

[alfred russel]

And in 1973 the opposite situation was the case.

Not so - Roe was the first USSC case to consider a constitutional challenge to abortion laws. I suppose one could argue it hadn't been challenged before because it would be assumed that such a challenge would fail - although the same reasoning could be used to undermine the NYS Rifle case. But either way, Roe did not involve a challenge to established court precedent, much less an established precedent that had been reaffirmed several times over the intervening 50 years.

The same reasoning should be used to undermine the NYS Rifle case. And I'd argue that there was significant court precedent in both cases though not at the USSC level.