Some homework, to cheer you up.
Jan. 31st, 2006 11:48 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumForgetting, for the moment, the mindset of an Alito, pe se. akirlu pointed something out in comments which gave me cheer.
Ponder someone who's judicial philosophy you hate (and unless the system is broken beyond repair, no matter what your politics, someone whom you don't like will get to appoint a justice to the Supreme Court).
What is the affect on the court?
It depends on the judge. If the justice is too far out, he will be lost. The shape (with some exceptions, like Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) where most people tend to reach for part of Jackson's concurrence) the writer of the opinion is the one who shapes the law.
It's true, the decision affects the litigants, the opinion affects the law.
So go and read, "The Brethren" by Woodward and Bernstein. It's in the library, so you won't need to buy it.
As the old saw goes, "there's many a slip, twixt the cup and the lip." Which the book points out.
Opinions are assigned after a vote; which is indicative of the Court's decision. The decision, however, isn't final until the opinion is handed down, and things change. An opinion which is too extreme will lose votes, perhaps even changing the outcome of the case.
Brown v. Board of Education, 347 U.S. 483 (1954) (USSC+) was worked over a fair bit, so that it would be a unanimous decision.
Back to the present.
Looking at the history of Justice (sigh) Alito on the bench, and the large number of his cases where he was alone in dissent, or later overturned, it may be safe to say that he could have trouble getting his opinions handed down.
Someone said "Roe" now rests on the slim shoulders of Kennedy. Perhaps. It is also possible that Alito will be so over the line in his writing that justices who agree with him on the decision, can't support him in the opinion. That could make for a lot of concurrence from him, but not so many opinions. It may also be that his views lead some to decide the merits of the case are different from what they appeared to be when the first vote was taken.
It's bad, but it might not be unmitigated.
At the very least we can hope this makes those who look to single issues (like abortion, instead of the underlying rights to privacy and autonomy) ponder what deals they make with the Devil to get the thing they want.
akirlu pointed something out in comments which gave me cheer.Ponder someone who's judicial philosophy you hate (and unless the system is broken beyond repair, no matter what your politics, someone whom you don't like will get to appoint a justice to the Supreme Court).
What is the affect on the court?
It depends on the judge. If the justice is too far out, he will be lost. The shape (with some exceptions, like Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) where most people tend to reach for part of Jackson's concurrence) the writer of the opinion is the one who shapes the law.
It's true, the decision affects the litigants, the opinion affects the law.
So go and read, "The Brethren" by Woodward and Bernstein. It's in the library, so you won't need to buy it.
As the old saw goes, "there's many a slip, twixt the cup and the lip." Which the book points out.
Opinions are assigned after a vote; which is indicative of the Court's decision. The decision, however, isn't final until the opinion is handed down, and things change. An opinion which is too extreme will lose votes, perhaps even changing the outcome of the case.
Brown v. Board of Education, 347 U.S. 483 (1954) (USSC+) was worked over a fair bit, so that it would be a unanimous decision.
Back to the present.
Looking at the history of Justice (sigh) Alito on the bench, and the large number of his cases where he was alone in dissent, or later overturned, it may be safe to say that he could have trouble getting his opinions handed down.
Someone said "Roe" now rests on the slim shoulders of Kennedy. Perhaps. It is also possible that Alito will be so over the line in his writing that justices who agree with him on the decision, can't support him in the opinion. That could make for a lot of concurrence from him, but not so many opinions. It may also be that his views lead some to decide the merits of the case are different from what they appeared to be when the first vote was taken.
It's bad, but it might not be unmitigated.
At the very least we can hope this makes those who look to single issues (like abortion, instead of the underlying rights to privacy and autonomy) ponder what deals they make with the Devil to get the thing they want.
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no subject
Date: 2006-01-31 08:40 pm (UTC)Except, of course, Thomas, of whom I shall say no more.
no subject
Date: 2006-01-31 08:48 pm (UTC)Stare Decisis
Date: 2006-01-31 10:06 pm (UTC)It is my (limited paralegal's) understanding that in common law when the Supremes reach a consensus, but the key vote is not part of the majority, but only concurs, their concurence either trumps, or is at least co-equal to the four other justices opinion, since without the concurence there would be no majority opinion and thus no law made.
(sorry, that explanation sucked... brain drying into wrinkled dog turd at work today...)
mojo sends
Re: Stare Decisis
Date: 2006-01-31 11:36 pm (UTC)If the concurrence trumped, then it would become the majority.
If one has a 5-4 decision, then the concurrence can gain weight, but, by virtue of the decision being so close the precendent is less powerful.
There are lots of times when a justice will concurr, not because that justice feels the majority opinion to be wrong, per se, but rather because they think some other point of law needs to be looked at as well.
Then again, much of the precedential power of a decision comes not so much from what it says, but from what bits are cited in subsequent argument, and so a minor concurrence to a unanimous opinion may gain more affect on later law than one would imagine at the time the decisions are handed down.
TK