SCOTUS Justices are not Judges

by Ugh

As many (some?) of you know, I was "lucky" enough to take Constitutional Law from Prof. John "Torture? Hell yeah!" Yoo at Berkeley, back before his tenure at OLC in the Bush Administration.  This was Con Law I, which mainly focused on things like separation of powers, the rights and duties of the legislative, executive, and judicial branches, and not, e.g., the Bill of Rights, due process, etc.* 

One of his observations in class, and I forget how this came up, was that he would never want to be a Judge.  A Supreme Court Justice, on the other hand....  And so here we are, faced with another kabuki dance of pretending a nomination to the Supreme Court is the same as any other position in the Judicial branch, and as long as someone has the necessary prerequisites, how can you possibly object?!!?  He (and for all but 3 FOUR justices it has been "he"), has a distinguished career as a circuit court judge, writing decent opinions, and he "follows the law".  What's to complain?

Well, SCOTUS justices don't have to "follow the law." At least on Constitutional questions and to a decent extent on statutory interpretation, they "make" the law.  So that a circuit court justice actually felt bound by SCOTUS decisions and other precedent is neither here nor there.  It seems likely that Kavanaugh's appointment will shift the court significantly to the right, making CJ Roberts and not J. Kennedy the median vote - and with Kavanaugh/Gorsuch/Alito forming a wildly conservative 3 vote block on most issues, 4 if you include Thomas, this does not bode well for the majority of Americans, perhaps the vast majority.

Anyway, just felt the need to get that off my chest.

P.S. There's something about Mitch McConnell that's so hypocritical it's like how much more hypocritical could he be? And the answer is none. None more hypocritical.

*Needless to say the powers of the President as taught by Prof. Yoo in class didn't exactly match up with his analysis in his OLC memos.  Funny that.

Comments

[russell]

just to reiterate my point above:

a fetus that cannot survive outside of a gestational environment, whether human or otherwise, is not viable.

kind of the same thing wj is saying here, I'm just pointing out that the scenario we're discussing here, remarkable though it might be, is not what is meant by the word "viable".

[JanieM]

From the Wikipedia article on Roe:

The Roe decision defined "viable" as "potentially able to live outside the mother's womb, albeit with artificial aid."[5] Justices in Casey acknowledged that viability may occur at 23 or 24 weeks, or sometimes even earlier, in light of medical advances.[6]

Also: The "viability" criterion is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.[100]

[wj]

The "viability" criterion is still in effect, although the point of viability has changed...

Just another of the flaws in Roe. ;-)

Or, more seriously, yet another illustration of the problem with a Court composed of lawyers who are, typically, massively ignorant of technology. (Ditto, all too often, a Congress mostly similarly composed.)

[russell]

i stand corrected.

not only does language change, the world to which language refers changes.

that should be cause for humility on the part of textualists, but generally is not.

[cleek]

Admittedly there can be discussion about what constitutes "massive", but pretty clearly anything resembling an artificial womb would be included.

artificial wombs will happen. and they will eventually become commonplace. women will use them routinely because natural childbearing is dangerous and uncomfortable and inconveniencing. an option to skip all that and still have a child? think about how women's lives will change if they're not required to go through a year's worth of body changes in order to have a child. it will fundamentally chance society, but it will happen.

some will choose to do it naturally, but that will be a luxury - to be able to incapacitate oneself for the better part of year: to miss work, to gain the weight, to endure the physical hardships. most women will opt 'out'.

it won't happen in any of our lifetimes, but it will happen.

[Pro Bono]

For my education I read a Nature paper published last year about the (then) latest artificial womb developments, experimenting on ewes.

The paper discusses the possible application of the technology to humans. It notes that the need to remove the fetus surgically in order to maintain umbilical blood flow and keep its lungs filled with fluid will "introduce additional risk and potential long-term hysterotomy-related morbidity for the mother".

And "Before 22–23 weeks of gestation, there are likely physiologic and technical limitations that will increase the risk and reduce the potential benefit of this therapy. Our goal is not to extend the current limits of viability..."

It seems we're nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.

[wj]

It seems we're nowhere near being able to transfer a fetus to an artificial womb for much of its pre-birth development.

Somehow it seems more likely that we will use them for IVF first. Thus neatly circumventing the transfer issues. (Always assuming the fetal requirements, hormonal and otherwise, can otherwise be met.)

[Nigel]

When I read this, aside from its inherent absurdity, it struck me that it's most unlikely more than one person in a thousand (if that) could name a single judge on the UK's Supreme Court, or indeed the ECJ...
https://www.politico.com/magazine/story/2018/07/16/kavanaugh-supreme-court-personality-popularity-contest-219013

[russell]

artificial wombs will happen.

maybe so.

and for the folks who hold this out as a work-around for women who might otherwise terminate their pregnancies, I have questions.

how many ways will we get this wrong, before we get it right?

how many beings somewhere on the spectrum from fertilized egg to fully formed human will be FUBAR'd for life because we didn't quite have the developmental process dialed in?

how many will not make it at all, through sheer technical cock-up?

our particular form of humans have been on the planet for, maybe, a couple hundred thousand years. we're the product of many many many millions of years of organic development. natural trial and error. we came to be in an environment whose dynamics and interrelationships are complex and balanced. the amount we understand about all of that is beggared by what we not only don't understand, but don't even know is there to be understood.

pregnancy is surely a challenging task for anyone. physically, emotionally, every way you can think of.

maybe we should think about how to reduce the risk and difficulty of the process as it exists, rather than trying to make all of that go away by automating it.

maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.

just saying.

none of this is an argument from me for or against safe and legal access to abortion. it's an argument against trying to replace the miraculous and astounding given world we were born into, with an ersatz one of our own clumsy invention.

we're smart. we're not that smart.

[cleek]

how many ways will we get this wrong, before we get it right?

plenty.

how many will not make it at all, through sheer technical cock-up?

too many.

maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women.

no argument there.

i'm just saying that it's going to happen, eventually. technology will eventually get there. just like self-driving cars and houses on the moon. it won't happen in our lifetimes, however.

[Countme-a-Demon]

I believe in artificial universal healthcare from artificial womb to artificial tomb.

"maybe, instead of spending god knows how many billions of dollars on an automated system to act as a surrogate for the womb, we should devote a similar level of resources to supporting pregnant women."

Fat chance.
Anyway, only republicans/conservatives will be able to afford gestating their artificial children in artificial wombs.

Here is their hive mother, and their spawn:

https://www.balloon-juice.com/2018/07/17/nra-treason-assisting-open-thread-red-sparrowhawk/

Here is the crypto-Christian republican murdering bug mother Rebekah Mercer giving birth to our President:

https://www.youtube.com/watch?v=C_yfM1LAqP0

[Nigel]

Michigan Supreme Court looking at ruling a ballot initiative to end gerrymandering ub=nconstitutional:
https://slate.com/news-and-politics/2018/07/michigan-partisan-gerrymandering-voters-want-a-chance-to-end-the-practice-the-gop-state-supreme-court-might-not-let-them.html?

[Countme-a-Demon]

https://www.thedailybeast.com/trumps-missing-dnc-server-is-neither-missing-nor-a-server?via=newsletter&source=DDMorning

We had at least one Soviet agent right here on Obsidian Wings previewing Soviet/mp lies about all of this before as mp himself "articulated" the lie during the "campaign" for his putsch.

[Barry]

Russell: “If the intent is more or less clear, it doesn't go to the SCOTUS.”

Trump’s ‘Muslim Ban’. The intent was crystal clear.

[russell]

Trump’s ‘Muslim Ban’. The intent was crystal clear.

I.e., Trump's intent was clear. Agreed.

By "intent is more or less clear", I mean if the intent of the language in the Constitution is clear, or at least has a settled interpretation that nobody wants to challenge at the moment.