In a recent thread, staunch commenter JHG asks:
If the Supreme Court can keep making up whatever outcome they want, and find a way to make the legal case for it, how can we trust that we are a country that follows the rule of law?
This is a good question. One worth discussing.
Jaybird
Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com
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That’s not really a new question. Somehow, we’ve managed.
Note that one big example of the Supreme Court declaring that they had to follow the law and couldn’t just make up whatever outcome they wanted was, um, Dred Scott v. Sanford. Another was Korematsu v. United States. And there’s everyone’s favorite, Employment Division v. Smith.
Conversely, “making up whatever outcome they wanted” could certainly describe the legal reasoning behind, well, Roe v. Wade, or Miranda v. Arizona, or Regents of the University of California v. Bakke.Report
IANAL or legal scholar, but I think it’s important to keep in mind that nothing about our laws, or even the constitution, is cast in stone. Our laws aren’t just based on the constitution, but also centuries of English legal traditions.
So the law is always in a state of flux.
What makes us (ideally) a nation of laws is that laws apply equally to all, and no man or woman is above or outside the law, whatever the law is.
How well we adhere to that ideal is a matter of much debate.Report
Rule of law or rule of men aren’t absolutes. Every society which aims for rule of law carves out a few exceptions, and every society that professes to be in the hands of rulers still recognizes that some lines shouldn’t be crossed.
Every country has a constitution: the US has a written one, but not all are written. One of the purposes of a written constitution is clarity. For a written constitution or any written law to have a fixed meaning, it should be looked at in terms of the words of the law/debate at the time. A court or other final arbiter that looks elsewhere isn’t following the law.
To the originalist (the type of person who would agree with my argument, think Federalist Society types), the courts have lost their way pretty badly at times in our history, most recently in the Warren/Burger era. They see SCOTUS’s most recent rulings as returning to the original text or intent of the law. That doesn’t mean they all agree on everything. There are questions of whether the text or the text’s intent are more important, and there’s no agreement on the rule of precedent. (Alito’s Dobbs ruling may prove to be pivotal in our approach to precedent.)
I think that Scalia would say that JHG’s question is fair, and that originalism is the only credible answer.Report
Well, the whole “find a way to make the legal case for it” is the nut of the problem, isn’t it?
It feels like no matter what gets written down, a good enough lawyer can argue to a poor enough judge that “X!” actually means “Not X, mostly. With the exception of, maybe, some powerful people from time to time.”
I mean let’s look at the 2nd Amendment real quick:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Okay. I’m sure you’ve seen the argument that this amendment isn’t about the right of the people to keep and bear arms but is about how only people in the *MILITIA* have an enumerated right to have a gun!
I’m sure you’ve seen the argument that, no, the militia is the argument for why we have the right and the enumerated right is for THE PEOPLE to keep and bear arms and how that right should NOT BE INFRINGED.
I’m not going to argue which interpretation is the correct one. I suppose it doesn’t really matter.
What does matter is the question of “is there a correct interpretation”?
Like, can you look at that and say “Nah, it actually means X.”
New York, for example, had this “may issue” thing going on where you were required to get a permit before being allowed to concealed carry. In practice, this ended up being a situation where Rich Person could get one, Famous Person could get one, Bodyguard of Rich/Famous Person could get one… but Joe Schmoe? Joe Schmoe couldn’t get one.
So Joe Schmoe sued.
So what’s the theory you want to use here?
Were Joe’s rights overlooked?
Does it just make sense that Joe shouldn’t automatically get a CC license just because he feels like getting one?
It’s pretty easy to make the legal case that only the rich and/or famous should own guns (or their bodyguards) but Joe Schmoe should not be able to get his paws on one. (They’ve demonstrated social competence, for one, and Joe Schmoe has not.)
I suppose you could make the argument that the 2nd Amendment doesn’t really apply to the states and if the legislators of a particular state can band together and pass a law saying “Nope. Only people that we deem to be Militia members should be able to have guns”, then that’s what should apply. It doesn’t matter what the Constitution says, what matters is what the *STATE* says and the elected officials of the *STATE*.
I mean, from where I sit, I can easily see how someone might say that what matters is what you can get the state legislature to pass, not what some weird old document written a hundred years ago *IMPLIES*.
But, and here’s the nut, if there are people out there who read the 2nd and look at the state law as practiced and say “you know what? The state should have a reason to not give a CC license and the burden is on them. The burden shouldn’t be on Joe Schmoe to demonstrate that he’s rich enough, famous enough, or bodyguarding someone rich enough or famous enough.”
*TRUST* means that you have to be able to say “yes, I see how someone might say that Joe Schmoe should be able to get a license” instead of “I don’t see how anybody could possibly come to the conclusion that the 2nd Amendment applies to anybody but the militia.”
Trust isn’t “I agree with the other side”, it’s the ability to say “I read this sentence and I see how someone could reach your conclusion instead of my own”.
Because just coming out and saying “the 2nd Amendment obviously has nothing to do with an enumerated right of the people and I don’t see why anybody could possibly reach any other conclusion” means that there is not enough trust of the (presumably dishonest) people out there who read the 2nd and think that it means something about any given Joe Schmoe being able to own a gun if you want one.
So I want to say that the whole “being able to make the legal case for X” isn’t the foundation of the trust issue. It’s the establishment that there is no legal case for X but this legal case for X and anyone who thinks otherwise is dishonest, or ignorant, or misguided, or deceived, or somehow obviously bad.
If you’d rather talk about Roe v. Wade, I’d say that the whole “Right to Privacy” that they found in the 1970’s would have been a lot more persuasive if the emanation from the penumbra covered more than just that one thing. If we agreed that a Right to Privacy covered stuff like ANYTHING FRIGGIN’ ELSE, the removal of the Right to Privacy would have a lot of stuff intertwined.
Is a no-knock raid against the wrong house a violation of privacy? Is asking people to step out of their car and open their trunk during a stop for a busted taillight a violation of privacy? And so on and so forth.
But, as it is, the right to privacy covered only one thing. Which means that getting rid of it only got rid of one thing.
But that’s playing woulda coulda shoulda. When it comes to whether there is a right to abortion or a right for a young woman to control her own sexual destiny or whatever emotionally-laden words you want to put in there, part of the problem is the (apparent) inability of this side to comprehend the other.
Which means that trust isn’t possible.
We can’t even agree on what words mean.Report
Definition of “militia”: “all able-bodied civilians eligible by law for military service.” (google).Report
It means the coast guard.
Hey! I googled that too and it had two definitions above the one you quoted!
Here’s the first one:
“a military force that is raised from the civil population to supplement a regular army in an emergency.”
Here’s the second one:
“a military force that engages in rebel or terrorist activities in opposition to a regular army.”
Yours is the third one provided.Report
Of course in the Original Founders Intent most americans would not have been allowed to join a militia. Rightly we now ignore that.Report
The original intent was cities far away from the army would have to deal with Indian Attacks and Slave Rebellions.
If you live VERY close to the front line, the wisdom of having everyone armed and able to instantly join the army makes sense.Report
Except for slaves is certainly a point i would make about the OG intent. Even so we dont’ exactly have slave rebellions and wars with native americans.Report
If we’re talking about “original intent”, then those two and having just overthrown a repressive gov are where the founders’ heads were at.
Whether it was a good idea is a different issue. Certainly our own gov has been repressive at times, and the counter claim is the 1stAM has done a better job than the 2nd.
However that’s starting to argue whether the 2nd AM should exist (which is fair) rather than argue that the founders didn’t think civilians should have guns (which is not).Report
Yes, to this, exactly: “Well, the whole “find a way to make the legal case for it” is the nut of the problem, isn’t it?”
And, I agree with your points that follow. Your points on Trust are well taken, and get to the heart of things.
I think the Right to Privacy is really just the Right to Privacy about Sexual stuff, which is why it seems to only apply to one thing (several things, but all about sex – Roe, Griswold, Lawrence, etc.).
We need some better words to describe what we’re trying to protect. Right to Privacy makes it seem that it’s not just about sex, even though it is. Where does Loving land here? The Right to Make Personal Choices? Isn’t sex involved there, too? So, isn’t Loving also about Right to Privacy about Sexual stuff?
I thought precedent was a moderating influence on the court, though that seems a moot point now. I realize that laws are living and changing, but thought that there was some bedrock principles that applied. Alas, it seems there are no bedrock principles that apply, since we can change them on a whim (or on the changing of Justices on the court).
I think you are correct, Jaybird, that we (the royal we) cannot find a way to trust each other enough to make progress on this. And, there seem to be many who are uninterested.
Are there ways to increase Trust (beyond the golden land of Ordinary-Times, or Jaybird’s living room)?Report
Are there ways to increase Trust (beyond the golden land of Ordinary-Times, or Jaybird’s living room)?
Among whom?
There seems to be a subset of behaviors that are ways to increase trust among the ingroup. Here, let me make a big point of how bad the other guys are.
The next guy over says “I can top that” and then goes on to do so.
The next guy over says “I can top that” and then goes on to do so.
And eventually you’re doing the Four Yorkshiremen sketch only it’s about how bad those other guys are.
Now this doesn’t really do a whole lot for trust with those other guys, but it’s a good team-building exercise. Builds trust within the ingroup.
If you want to build trust up with the outgroup? Like, maybe not “come over to the house” trust but just “let’s have a conversation” trust?
Dunno. Maybe civic life or something? Shut down a couple of city blocks, bring in some food trucks, listen to some bromides from different people giving different banal speeches, and then have a parade or something.
Maybe, from there, have a community spaghetti night once a month at the VFW for a $3 donation where everybody sits down together and gets used to the idea of eating in the same room as each other.
Get used to the thought that the other people might actually be people instead of some weird faceless group of people who can’t even tell that the clause doesn’t mean *THAT* and it’s dishonest to think that it might.Report
The right that abortion should be under is ‘the right to bodily autonomy’, because there has a _huge_ history of the government violating that in ways that we all agree it should not be able to, like forced sterilization of people and other crap.
As pro-abortion-rights people have pointed out, the requirement to give birth also implies the ability to forbid someone to give birth. It places that entire thing under government control. And actually implies the right to do all sorts of things to people.
It’s all one thing. It’s the right to own your own body and control it.
‘Medical privacy’ is a deeply stupid way to phrase any of this. The right is, simply, to own and control your own body, ‘privacy’ is nice but not actually the issue here.
And, to continue in that direction: Loving is, I would argue, a possible expansion on that right into more a right of ‘social autonomy’, as in, we should be able to interact, at the lowest levels, with other people in whatever manner we all consent to (Assuming we are not people who cannot consent), and the government should not punish us or even discriminate against us for that. If two people agree they want to do something with _both_ their bodies in private, they should be able to. (Although I guess that more an argument for Lawrence than Loving, but you can argue that the government should not have an official opinion on this and not only should it be legal, but the government should not discriminate against people doing that in ways ‘they don’t like’. Honestly, maybe _that_ should be considered ‘privacy’…not that the government shouldn’t know, more that they shouldn’t care.)
Basically, it’s sorta body autonomy but with two people…and again, I’m not saying it’s the same thing, but it can be conceptualized as a slightly expanded thing. Think of it as a bodily autonomy+freedom of assembly.
This is a rational and consistent way to argue these rights. (It is also extremely libertarian, although libertarians are _extremely bad_ at arguing this.)
The problem, of course, is that stating the rights like this would make it even more absurd that, for example, individual drug use is not included under this. I mean, that logically _should_ be included under ‘medical privacy’ anyway, but…it’s even sillier here.Report
“We can’t even agree on what words mean.”
I don’t know if that’s true. Consider Eric Medlin’s recent article about Fred Rodell. Without espousing Rodell’s position explicitly, Eric seems sympathetic to legal realism, “an approach that emphasized history, politics, and the real-world outcome of the law over obscure terms and the close reading of texts”. It’s hard not to see that thinking in critical theory, or in the liberal responses to Dobbs and other recent decisions. It may be argued that the Court’s conservatives don’t really care about words, but it can’t be argued that the Court’s liberals care about them. You wouldn’t be seeing reliably 6-3 decisions where the liberal dissents are based on outcome.Report
I think you’re overstating your case quite a bit. There’s a perfectly sound application of stare decisis that leaves Casey in tact, even with a concession that the reasoning in Roe isn’t the strongest in the history of the court. I don’t say that because of the outcome, I say it because it’s the correct way to apply the law.
If anything I’d say Dobbs may be the greatest example of how weak and reckless Originalism can be as applied. It’s willing to throw the law into complete chaos based on the highly questionable idea that we can specifically divine what a diffuse group of people would have done 250 years ago then Monday morning quarterback accordingly. It masks as some kind of conservatism what in practice repudiates the fundamentals of our legal system and its traditions.Report
Then you’re talking about Roberts’ position. As I’ve said, there are different approaches within an originalist framework, but they put the focus on the words. I don’t see that in the Dobbs dissent. The thing you say we can’t specifically divine is the meaning of words. The legal system and its traditions are found in the meaning of words. If a person is to respect the law, tradition, and word meaning, he’s a natural opponent of Roe.Report
Textualism has become the corrective to originalism, but I’ve never really bought them as the same thing. I see it as more of a sleight of hand to move on from originalism as first promulgated without admitting it doesn’t really work. But I digress.
In either case there is more to law than how one approaches interpretation of the Constitution on an issue de novo which is the fundamental problem here. State decisis predates our Constitution and yet is baked into our legal system. That does not mean precedents cannot ever be overturned but you need a damn good reason, and historically, that damn good reason typically involves some pretty significant changes in facts and circumstances that would render application of the precedent obviously wrong or irrational. I would submit that absolutely nothing has changed since the applicable precedent in 1992, other than the composition of the court. And yet here we are, abandoning any pretence of judicial modesty to reinterpret yesterday’s decisions with today’s justice’s values. So I agree that words have meaning, but so do ancient, long established legal doctrines, and that abandoning those results in the exact same thing the conservatives would accuse the living constitutionalists of doing in the 60s and 70s.Report
I like the way Alito laid out 5 considerations for whether to overturn a decision: the content of the decision, its reasoning, its workability, its connectedness to other law, and its reliance interests.
Roe, he argues, permits the ending of what Roe and Casey acknowledge as a potential life – a weighty matter of potentially conflicting rights removed from the public square. Its reasoning finds a timetable structure from a penumbra from an emanation of the Bill of Rights, which Casey already has rejected. Its standard of viability doesn’t stand up to the actual experience of pregnancy, certainly not with technological development. Roe can be overturned without affecting other laws; Thomas’s goals notwithstanding, it doesn’t dismantle any other substantive due process ruling. And there are no actions which have been taken under the assumption that Roe will stand.
So this isn’t willy-nilly.Report
I just can’t agree. Alito doesn’t even make the case convincingly under his own standard. At best, he has a some points about the reasoning of Roe but that’s only one prong of his test. He completely fails to wrestle with opening up a massive dormant commerce clause problem, the wrenches this has thrown into the healthcare system (including for employers who pay for and run it), and has left gaping questions of substantive due process. The Kavanaugh concurrence does some CYA on these issues, but not in a way that I think is going to become the actual opinion people cite like sometimes happens.
For comparison I would suggest looking into Dickerson v. US dealing with Miranda warnings and written by the late CJ Rehnquist, hardly a liberal. That dealt with another matter not written out in the constitution, and among the rationales for the conclusion upholding Miranda, was the idea that once the court makes something a constitutional issue outside the authority of the legislature, and society adapts to that determination, it is wrong for the court to one day for no particular reason wash its hands of the issue.
Now, you could note that Rehnquist dissented on the material majority portions of Casey but even then it doesn’t answer the core problem. Nothing has changed and no one has made an argument that it has. Even the Brown v. Board court addresses this in overruling Plessy. It’s bad, irresponsible law.Report
A different vector: the requirement to anchor the reasoning on the constitution is itself a restriction on a pure ‘making it up’. It’s when a better legal anchor comes along that the old reference is retired. The project is self-referentially circumscribed. I think what is constantly overlooked is that overturning RvW doesn’t create a new Abortion regime, it makes the legislating of an abortion regime (or regimes) the next step; which is a rule of law process.Report
As with theology and philosophy, a legal argument can and always is, made for or against any proposition.
There is of course always a dissenting opinion, and a case wouldn’t even make it to a court if there wasn’t some sort of argument.
As a citizen, the important thing it isn’t whether the legal argument is valid, but plausible.
We have to decide if the arguments given in the Courts ruling are believable, in order to have faith in the institution itself.
In the current situation the Court is struggling, and failing to convince the citizens to have faith in their ability to safeguard the Constitution and the rights of the people.Report
That says more about us (the Constitution is supposed to help my team) than it does the Court.Report
“Mr. President, your approval rating is at 33%.”
“That says more about the American people than it does about my presidency.”Report
Depends. Is he doing things that should be done but are by their nature unpopular? Then he has a problem. Is he just failing? Then he has another.
However typically the cases you’re referring about “faith in their ability to safeguard the Constitution” would be Roe (which was an a**pull) and that one where a grandfather’s guilt should be used to determine current policy.
Even if the policy is a great idea, “safeguarding the Constitution” should mean tossing those out. The Constitution needs to mean something more than “my team wants to do this”.Report
You’re doing what you accuse the American people of doing.
You’re taking your personal bias and making it a universal principle.
Your ideas of what it means to “safeguard the Constitution ” are not universally shared, and likewise, other people’s ideas of what it means aren’t necessarily any more partisan than yours.
If a person can honestly look at the other team and see them as destroying democracy then “my team should win” is a justifiable principle.Report
Going to have to disagree with you there.
Destroying democracy in order to save it is still destroying democracy.
The Constitution gives an unlimited right to an abortion for the first 3 months, a limited right for the 2nd 3, and close to no right for the last three? I seriously doubt I can get a cite for that.
“I want it, ergo it must be in the Constitution” is faulty logic on the face of it.
That others disagree with me doesn’t make that logic more valid.
The difference between my logic and others is the Constitution doesn’t agree with me in terms of where I want policy to be. (My desire policy is basically abortion on demand).
If you’re trying to use the Constitution as a bible and claiming it’s always on your side, then no, that’s not “reasoning”, that’s “faith”.Report
The Constitution is on my side.
– Even the things that aren’t in it?
Especially the things that aren’t in it.Report
We’re both agreeing that what the Constitution requires or allows is a matter of subjective interpretation.
What I’m saying is that for virtually any right- the right to abortion, the personal right to a gun, the right not to have your fingernails pulled out by the police- can be derided as “I want it, ergo it must be in the Constitution”.
There isn’t some objective, unassailable Correct interpretation. Its all opinion, all the way down.
The difference between one interpretation and another, is that one has the power to convince people of its rightness, and the other doesn’t.
The Brown decision persuaded people that separate but equal is unjust and increased respect for the Court.
The Dobbs decision has persuaded no one, and has only invited ridicule and contempt for the Court.Report
Multiple decades later? Sure. No one is against it now.
So how about Roe? Did Roe result in no one being against it decades later?
Far as I can tell, the only people who dislike Dobbs are Roe’s supporters. The results of Roe were great, the reasoning not so much.
Roe created a multidecade fight over the court. The only serious argument against Dobbs is it breaks Stari Decisis… but Brown did that too.
When we get abortion on demand, it will be because the people insist on it and not because the Supremes do an a**pull.
This issue is not something the Supremes can settle. It’s going to have to be handled by the politicians.Report
I think there’s an important difference though, at least legally. In overruling Plessy the Brown court does go into the differences between the world of public schools in 1954, which had become an integral part of the fabric of the modern state, as opposed to the world of public schools in 1896 where, outside of the most developed places in the NE, they simply weren’t (and even then…). There were impossible to ignore and enormous changes in the specific issues between one decision and the next. Now obviously Plessy has become rightly understood as a deeply immoral holding and which was only possible in a society so racist that the racism was enacted in law.
But while there was a massive popular backlash to the outcome of Brown, its legal reasoning has held up, and not only because it has a firm basis in the language of the Constitution, but because the facts themselves were no longer the same. And this is where Dobbs really fails. In a world where, whether it should have been or not, abortion has been a constitutional right for half a century, it provides no convincing reasoning for why what was yesterday is not today, beyond that the current members of the court disagree with what the past members did. That is a serious problem in the law and something that may not be fixable in the near term.Report
This is a figleaf. You’re not wrong, but it’s still a figleaf.
Public schools may have brought the issue to a head but gov enforced/created segregation was so deeply unethical that something would have.
If your view is abortion is murder, then claiming that we’ve had the right to commit murder for years so we should continue is a mess on the face of it.Report
Strong reasoning is not a fig leaf, but an integral part to reaching good and sustainable conclusions. What brought the matter to a head was the ground work laid by decades of determined political work but also the fact that the inherent contradictions created in our system of government by separate but equal became impossible to ignore due to technological and social developments in the intervening years.
Regarding the ‘abortion is murder’ stance, that perspective is, in practice, an incredibly unpopular, minority view. The fact that it exists, and has some particularly passionate adherents, is not conclusive on any legal question, any more than the fact that there are any number of constitutional rights, decisions, and related prophylactic rules that would almost certainly never win a popular vote. To be blunt, this is lazy thinking, and not remotely relevant to the questions of doctrine in play.Report
According to opinion polls, you’re correct, it’s a minority view. If we count votes in elections, then not so much.
I suspect we have 6 Supremes that hold something like that view.
Roe creating the political push to put 6 people like that on the court is a massive problem in and of itself.Report
I’m not familiar with the arguments used in Roe, but I still think Dark has mentioned the strongest argument in favor of abortion rights, in that we will not demand that a person be required to donate even something as simple and replaceable as blood to support the life of another fully realized human, but we will insist that a woman be forced to host another human and bring that human into the world against her will.
This is the argument the court should be forced to grapple with.Report
The Court should only consider whether something is Constitutional.Report
I believe that is a constitutional question that has been answered, the court is choosing not to apply it to abortion, because (I suspect) no one has brought it before them.Report
We’re talking about using+damaging people’s bodies against their will purely for the benefit+service of other people.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.Report
Yup. It’s bodily autonomy, and that’s what should have decided Roe, not ‘privacy’ which is an extremely goofy concept. The idea that you have a _right_ to the government not knowing if you did something, and that gives you the _right_ to do that thing, is…weird and nonsensical.
The right, instead, is bodily autonomy: People have the sole right to their own body and the use of their own body.
Bodily autonomy still not explicitly listed, but it’s _much_ easier to read an implication for it in the Constitution than ‘privacy’. Not just the amendment you listed, but parts of the bill of rights, including the entire first amendment and fifth amendments (The government cannot compel speech)
With the slightest effort you can extend bodily autonomy to cover Lawrence too, that two people have the right, in private, to use their bodies together in any way they want.
If there is any right we can ‘invent’ out of the constitution that is not explicitly listed, it is bodily autonomy. (Along with ‘freedom of thought’, although that generalization really just has _one_ amendment backing it up.)
The ‘problem’ is you can actually extend this freedom farther than that, into things like ‘People have the right to alter their body with drugs’. And many other victimless crimes, like prostitution. So the courts are reluctant to do it. There are perhaps loopholes people could find to still bar those, but it would be much harder with a constitutional principle of bodily autonomy sitting there.
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Or to put it another way: Bodily autonomy is what libertarians like to pretend they are arguing for, but none of them actually want to phrase it like that or construct it as a philosophical principle because they’ll scare off the ‘pro-life libertarians’.Report
Its difficult to explain the 8th Amendment prohibition against torture without bringing in bodily autonomy.
What survivors of torture tell us (and the Founders had plenty of personal contacts with such people) is that like rape, the horror of torture is the violation of one’s body and loss of control over it.
Without that understanding, the 8th Amendment is inexplicable.Report
I literally forgot that one when thinking about this!
There are a hell of a lot of places where the implicit right to bodily autonomy could be found as a principle. Not even just in the constitution, but laws and historic precedent and civil courts and everywhere. It is embedded as a general principle in all sorts of places…
…and it’s really stupid we’ve never had a court say as much, and that so many rights are instead based on the dumb ‘right’ of ‘privacy’.
Privacy actually is explicitly addressed in the constitution…what is ‘search and seizure’ except ‘The government needs a search warrant to violate your privacy’. Which, um, means we don’t actually have a right to privacy if the court agrees that we might be breaking the law!Report
If altering your body with drugs stopped with you, then no one would object. Drinking is a personal issue, drinking and driving is not.
Society would probably be better off if prostitution were shielded from vapid moral signaling via laws.Report
…define ‘no one’?
I’m pretty sure the police object to personal drug use!
Although the drug laws are aimed at possession, which, like I said, might be enough of a ‘legal loophole’ to get around things…although courts haven’t been a fan of the idea that ‘the government can ban access to things that people have a right to use’.
I think maybe you missed my quotes on ‘problem’. I am not the one with the problem. I was pointing out that there are specific things that _the government_ doesn’t want to do, and those things present a ‘problem’ for this right.Report
I’m among the ambivalent pro-choicers but I’ve never thought that argument worked well. Taken to its logical conclusion it would permit an elective abortion of a fully healthy late term pregnancy. Yet, at least if my understanding is correct, it gets a lot harder to find a doctor to do that after around the 16 week mark and nearly impossible very shortly after, not based on legality but on the providers’ own medical ethics. Something like that from the people who best understand what is happening says to me that there is more going on (or at least something different) than the considerations in play with a blood transfusion or organ transplant.Report
IANAL but I have to wonder about the Constitutionality and other related things of states making their own determination about WHO is entitled to basic rights.
Like, as I understand it, the Constitution guarantees certain rights that states can’t override. Beyond that, states can make their own determinations.
But this isn’t about what rights people do or do not have. Opposition to abortion seems predicated on who counts as a human… who is a person. Can we really exist as a single country if different states have different definitions of who is a human?Report
Yes.
Now note this basically doesn’t happen.
Emotion.
This is why, stripped of emotion and religion, there really isn’t an argument. The rest of our medical ethics says people get to control their bodies. The exceptions are really damning: The Death Penalty, Slavery.Report
I think your logic is backwards, and the fact that it basically doesn’t happen leads to a very different conclusion.Report
The problem with outlawing it is when we’re talking about late term abortion we’re largely talking about medical horror cases that aren’t supposed to exist but do anyway.
Combine that with medically ignorant politicians who want to virtue signal and I am very comfortable just saying we shouldn’t be passing laws on this.Report
Something I said on the Dobbs post was that pregnancy is, philosophically, a question of when a woman makes the choice to donate her body to the fetus. That’s what needs to be settled.
That, and under what conditions can that choice be revoked.
6 weeks is barely enough time to become aware of a pregnancy, much less make the choice.
16 weeks is enough for most people (it’s the very rare case when a woman is ignorant of the pregnancy until so late in the game; that kinda thing makes the news).
After that, revoking the choice typically boils down to increased risk to the mother and/or child, or rape/incest/other duress.Report
I don’t personally have a final answer on that or where the line is. However we do know that nature on its own puts the outcome of a pregnancy quite up in the air through the first trimester. I’m going to bow out here because my family’s experience with that issue brings it too close to home for me to debate at OT. Suffice to say I don’t find positions in either direction which fail to account for that to be persuasive.Report
I certainly won’t make you dig into it, having been there myself (& having to support my wife with an ectopic pregnancy).
IMHO, however, we can’t even figure out those questions until we get past the idea that society has any right to demand a woman carry a child to term against her will (and arguments that she consented to pregnancy by having sex is straight up naive or cruel).Report
This is what made the assassination of George Tiller such a big deal. He was one of the few medical professionals willing to perform some of the procedures he performed.
His death created a vacuum.Report
I’ve always disliked this argument, not so much because I think it’s invalid — that is, I believe that, if you accept is premises, its conclusion, that abortion should be legal at least pre-viability, if not full term, is true — but because I don’t accept all of its premises, and in fact, I think conceding some of those premises limits a woman’s agency in unacceptable ways.
Recall this argument, or at least its parent argument, was first made by Judith Jarvis Thompson in a paper that explicitly concedes, for the sake of argument, that the fetus has full moral agency, equivalent to that of a fully grown violinist. Her purpose was to show that, even if you concede the anti-choice premise that the fetus has full moral agency, we should not force people to remain pregnant if they do not want to.
I do not think that the fetus is, at least until viability, a full moral agent equivalent to a fully grown violinist. I think the woman’s moral agency trumps the fetuses at every step until viability, and forced pregnancy is therefore a denial of that agency, or at least a highly problematic limiting of it.
That said, I think the violinist family of arguments (not merely the violinist one) kicks in at viability, which confirms InMD’s concern about it, of course, but is, I think, a good thing.
Granted, I think having an abortion after viability, except under extreme circumstances, is very bad morally, but I take comfort in the knowledge that the only conditions under which such abortions happen, and will likely ever happen, barring massive changes in medical ethics, are the extreme ones that make them wholly morally unproblematic.Report
I agree with you that a fetus can not be a fully realized human until it is outside of it’s mother. The problem is that many people strongly disagree with that.
An argument that pregnancy is akin to donating blood or organs sidesteps the question of whether or not the fetus has any rights beyond those the mother wishes to acknowledge.Report
Yeah, that was Thompson’s purpose in creating the argument, or at least the parent of the argument. I just don’t like using it precisely because it concedes something that, once conceded, creates further issues (e.g., the one about when a woman has committed to donating the organs, and when and under what circumstances she can withdrawal that commitment), which create a lot of openings for pro-forced pregnancy folks.Report
You aren’t wrong, I just see people being more comfortable with accepting that pregnancy is akin to donating tissue and the attendant limits on that, then grappling with questions of rights and personhood.Report
Perhaps you’re right. I’ve seen this argument gaining traction on social media, but only among already pro-reproductive justice folks, whereas a decade ago, it was pretty universally rejected by progressives (and unsurprisingly, JJT’s target in the original paper have never accepted it as a valid, much less sound argument).Report
I haven’t read Brown, at least not recently, but if it makes the argument you’re making (that the world has changed since Plessy) then it makes a very different argument than Dobbs, which argues that Roe was wrongly decided. I think that distinction affects your argument.
Also, if we’re to compare Dobbs to Brown in the way you propose, we need several decades to see if its morality holds up.
One more comment, and this is a reply to a comment you made a little further down, but I’m putting it here to make things more readable. Roe and Casey take a position not much different than “abortion is murder”. They phrase it that the state has an interest in protecting the fetus during later trimesters / viability, but unless that interest is similar to the one the state might have toward, say, oil reserves or some other natural resource, it’s an implicit admission that the viable fetus has human rights.Report
I don’t know that I would call it the argument in Brown but it is a major part of the analysis and a a necessary component of overruling a precedent (it is specifically noted for example that public schools barely existed in the South in the late 19th century but as of the 1950s are required everywhere). Dobbs IMO completely fails that analysis which should have been applied to Casey. That is what Dobbs fails to do, and why I see it as fundamentally wrong and bad for the law. It shouldn’t be getting a chance to begin with because the burden wasn’t met.
I understand the abortion is murder argument is not part of the legal analysis, I was responding to the issue Dark raised about people who see it that way never accepting the rationale of upholding Casey based stare decisis.Report
No, Roe didn’t create the fight over the court.
The religious right were ambivalent about abortion in 1973, with some supporting it. But they already hated the Warren and Burger courts for their liberal rulings in the 50s and 60s.
Abortion became a rallying cry as a result of deliberate political leadership, and was part of the backlash to feminism and civil rights.Report
I disagree.
IMHO without Roe the Left v Right fight over the court is a LOT less poisonous.Report
I’ve noticed that pro-lifers haven’t been dancing around mocking their opponents over the last few weeks. I think it’s partly because we know that we’ve got a lot of work left to do persuading others. But also I think it’s basic empathy. We know what it feels like to be locked out (although we did have it worse, because we were told we couldn’t change the law).Report
If that’s true it’s probably because thoughtful pro-lifers are aware that bringing Roe v. Wade down is, by infinitely far, the easiest step on their checklist.Report
The people in a democratic society need to have a way to create the kind of society and country we want. That is the answer to a court that does whatever based on whatever.Report
In my experience conservative judges are much more likely to make the rulings they want unless they are convinced that they will be reversed by a higher court. The United States District Court judges trying to impose a Trumpist immigration policy on the Biden administration or the current rulings of the Supreme Court are good examples of this. Liberal judges tend to know that this is not a way to run a country and are more likely to make a ruling they don’t like personally if that is what the law says or they try to act within their understanding of the law.Report
In my experience
The conservative judges that you dealt with in New York and now in… lemme read this here… San Francisco?Report
Yeah, someone was trying to tell me about a Black liberal Democratic mayor in, get this, Houston Texas.
*Snort.*Report
Did they open with “in my experience” in that story?
(Were they using “in my experience” the same way that I would use “I read a slate article that explained”?)Report
Yes, they did. They did exactly that very thing.
So you can see why I snorted derisively.Report
Yes, well. I’m trying to avoid the whole “I read a slate article that explained” version of “in my experience” and, instead, asking clarification about the actual for-real personal experience of a lawyer who works with conservative judges that run around all wily-nily while the liberal ones do their best to color within the lines.Report
I can tell you your chances of getting asylum or not in terms of percentages by looking up your immigration judge online. There are definitely immigration judges, even in SF and NYC, with near 100% denial rates who see their jobs as deporting as many people as possible.Report
If only we had such liberal immigration policies as Canada!Report
Even in SF and NYC, when they deport the person, they’re doing this despite the fact that this is contrary to the law in NYC or SF?
I find myself somewhat skeptical due to, among other things, Trump and the responses to Trump’s various executive orders as well as the recall of Judge Aaron Persky. So I’m asking for clarification that the judges are doing stuff outside of the law and the law enforcement branch is just up and running with it.Report
Yes. The Immigration Judges that want to deport somebody are very good at saying why the local precedent doesn’t count in case or saying why it says Y when it really says X.
To give a just happened example, the IRAIRA Act of 1996 created something called a PermBar. This states that if a non-citizen enters without inspection after being removed from the United States, they are permanently barred from immigrating from the United States.* The perm bar is not retroactive, so if a non-citizen was deported before the date IRIRA came into effect on April 1, 1997 and re-entered without inspection afterwards than the permanent bar would not apply in this case. Guess what, a 9th Circuit panel consisting of two Trump appointees and one Bush appointee held that the PermBar is retroactive even though the literal text of IRAIRA says it isn’t. See Vega v. Garland, No. 19-71750 (9th Cir. 2022).
*The perm bar states that a non-citizen must wait ten years outside the United States and then they may file a waiver that may or may not be granted to re-enter. They will also need additional waivers beyond that waiver.Report
Okay, I googled Vega v. Garland and the first thing I see is:
Reading some more:
They’re not talking about IRAIRA. I did a find for “IRAIRA” in the body and didn’t find anything.
https://www.justice.gov/sites/default/files/briefs/2021/11/23/roman-vega_112121.4.pdf
That’s the case that *I* was reading. Should I have been reading a different one?Report
No, they are applying IRIRA law to a situation where it does not apply and even the government did not say the PermBar applied during oral argument. It is legal realism in its purest form.Report
“Legal realism in its purest form”?
That seems to imply a fairly straightforward school of thought rather than a “whatever they want” school of thought.
Like to the point where even sainted Merrick Garland agrees with it.Report
Legal realism, but only as the Founders intended.Report
Which also seems to be in a different category than “doing whatever they want”.
Like to the point where even sainted Merrick Garland agrees with it.Report
I’ve never heard of any judge, anywhere “doing whatever they want.”
So I guess yeah, any sort of ruling by any judge is in a different category than “doing whatever they want”.
Which gets back to my first comment about whether the citizens should still regard the court as anything other than a tool of politics.Report
I’ve never heard of any judge, anywhere “doing whatever they want.”
You should go up and read the comment that started all this stuff off. Lee said:
In my experience conservative judges are much more likely to make the rulings they want unless they are convinced that they will be reversed by a higher court.
Perhaps knowing that that’s what kicked this off might help you read the comments that followed.
For the record, I see “legal realism” as, like, an entire political philosophy.
A conservative one, sure. But it’s conservative in the sense that it’s following precedent and doing stuff likely to result in the Supreme Court saying something like “The court of appeals correctly rejected that contention. Its unpublished decision does not conflict with any decision of this Court, and petitioner has not identified any court of appeals in which the outcome of his case would have been different.”
Which seems to be in a different category than merely doing what they feel like.Report
No I get it very well,
You see what the judge did as within the law and in a different category than whatever he wants.
Which is a confession of sorts, to the accusation that social justice and critical race theorists have long made that for conservatives, the purpose of the law is to provide a plausible deniability to the Wilhoit Principle.Report
Chip: Let me point out that Merrick Garland sees it as within the law.
Like, he defended it, successfully, before the Supreme Court.
This is a variant of “conservative” that encompasses Merrick Garland in the year 2022 as well.Report
Wilhoit is a squeaking about inequality.Report
I’m failing to see how one could disagree with Lee here. He specifically states the law in question does not apply in the case cited.Report
I looked for the law in question and it didn’t even appear in the case cited!Report
Wrong Vega V Garland:
https://www.govinfo.gov/content/pkg/USCOURTS-ca9-19-71750/pdf/USCOURTS-ca9-19-71750-0.pdfReport
Oooh, thanks!
Here’s the first sentence that reached out and grabbed me: “Rivera Vega then agreed to proceed without counsel.”
Without knowing a darn thing about the case, my first thought, when I read this sentence, was “this guy’s doomed”.
Then I got to this paragraph:
Is this true? Does the relief depend on Vega having applied for it?Report
The judges are wrong because IRAIRA is not retroactive in it’s entirety. Most of it is not. They are calling it retroactive because they want it to be.Report
Does the relief depend on Vega having applied for it?Report
One has to ask the court to apply the law correctly?Report
It certainly seems that, if it’s true that the right to relief was not vested due to how the relief depended on it having been applied for, “correctly” has enough wiggle room to cover this interpretation of the law.
Note: That’s not my argument.
That is Merrick Garland’s argument.Report
[Something something Democrats do it too]
This is an example of what I said at the outset, that the conservative arguments have become preposterous and unbelievable.
You aren’t making any sort of sensible argument here in rebuttal to Lee’s experience, but just sort of throwing out chaff and squid ink. You’ve mentioned Merrick Garland three or four times without bothering to even explain the thinking behind it, and if you aren’t going to bother, why should we?
The deeper point is that you obviously think the judges ruling was correct without bothering to understand it, because well, you like the outcome.
Which puts you in the same company as the Alito court, openly admitting that the social justice and critical race theorists were right, that all the high minded huffing and puffing about small government/state’s rights/judicial restraint are just fig leaves to conceal the preference for a certain order.
And those fig leaves are now transparent, and we can all see the nakedness underneath.Report
Chip, my argument isn’t “BSDI”.
It’s that your incoherent definition of “conservative” spans from Adolf Hitler to somewhere to the left of Joe Biden.Report
Wait ’til you hear how American conservatives use the word “socialist.”Report
Oh, I guess that makes it okay.
Wait. Weren’t we talking about whether the judges were misinterpreting the law that Garland was arguing in front of them?Report
Doesn’t make it OK. I am just suggesting that in general discourse, these words have pretty much lost all meaning, while most people, or at least most people who are actively talking about these things, have a pretty good sense of the actual political spectrum. So, the people who call Joe Biden a socialist mostly (though not entirely) know Joe Biden is nothing like Stalin, or even Debs, or hell, the current system in Sweden, while most people who refer to, say, Jeb as conservative or right wing know that Jeb is nothing like Hitler, or even Goldwater, etc.Report
But, in this particular case, we’re talking about conservative judges doing what they feel like.
The example given was the case above.
We’re not even calling Jeb conservative. We’re calling Garland conservative. And not in service to being a boring old “follows precedent” kinda courtroom guy but in service to “doing what they want” druids acting all wily-nily.
Which strikes me as inaccurate.
Even if Rush Limbaugh called Obama a socialist.Report
I think it was you who called Merick Garland conservative (though he’s definitely not particularly liberal). I dunno how you get to claim people are using words loosely when you’re the one doing the using in this case.
I get that your argument (ugh, I can’t believe i just went back and read this pointless thread) is that Garland is agreeing with some conservative judges on one or another case, but still, and that the argument is the conservative judges are just making up the law as they go (my own position is that all judges are, all of the time, with sets of conventions guiding them, some loosely, some more stringently, and with different sets of conventions depending on the judge and the case), but still, you brought Garland in, you lumped him with conservatives on this or however many cases, and then you’re using that to make a point in a way that ends up being entirely circular. I should have just stayed the hell out of it. Oof.Report
My argument is not that Garland is conservative, it’s that the judges who were obviously being conservative were agreeing with Merrick Garland.
And if the judges were conservative, then Garland is conservative.
That’s my argument.
And I’m not bringing Garland into it.
The case that Lee used as an example was one argued by Garland in front of these so-called “conservative” judges.
Who agreed with his arguments.
Though I agree with your point that American conservatives use “socialist” rather loosely.Report
You aren’t making any argument, is what I’m saying.
I mean, reflect for a moment on your comments here.
Can you point to any comment you’ve made that is an attempt at constructing a positive argument for why we should vote Republican, or for anyone else for that matter?
This isn’t a personal attack, its endemic to the American conservative movement.
You, Sam Alito, the judge in Lee’s case-
Conservatives aren’t even bothering to make logical arguments anymore.
Trump, DeSantis, Abbot…You, Pinky, the rest of the commenters here.
None of you are even making a pretense at “Conservatism will make all Americans happier”.
Its all dark grievance about “wokism”, CRT brainwashing kids to hate America, or gay teachers grooming children for sex and constant demands that we al be terrified and grab a gun for protection.
Even here, you haven’t even bothered to explain why you think this judge is doing the same thing as Merrick Garland. You make sniggering references, but don’t even make a pretense at some sort of logical connection.
So if someone in your Group 3, the persuadable voter, were to read your comments, how persuasive do you think you would be?
And expand that universally- What persuadable voter is being persuaded by the reasoning in the recent SCOTUS decisions?
Among normal nonpolitical people this court term has been greeted with disbelief and outrage and has caused a sudden sharp in public confidence in the courts.
The conservative movement has given up on persuasion, and is now just resorting to coercion.Report
Can you point to any comment you’ve made that is an attempt at constructing a positive argument for why we should vote Republican, or for anyone else for that matter?
No, because I’m not arguing that you should vote Republican (or anyone else for that matter).
My core argument, such as it is, can be found here.
But that comment happened more than 5 minutes ago.
You, Sam Alito, the judge in Lee’s case-
Conservatives aren’t even bothering to make logical arguments anymore.
Chip, the argument was made by Merrick Garland. The Judge agreed with it.
None of you are even making a pretense at “Conservatism will make all Americans happier”.
When it comes to “what will make Americans happier”, I have an argument to that effect here.
Even here, you haven’t even bothered to explain why you think this judge is doing the same thing as Merrick Garland. You make sniggering references, but don’t even make a pretense at some sort of logical connection.
Here’s where my logical connection happens to be. If you don’t feel like clicking the link, it’s where I asked Lee the question about the argument of the attorney general that Vega’s request for relief is predicated on him asking for it prior to the passage of the law.
(I still don’t have an answer to that, by the way.)
So if someone in your Group 3, the persuadable voter, were to read your comments, how persuasive do you think you would be?
My argument to the someone in the Group 3 would be that I need an answer to my question before I conclude that Biden’s attorney general and the judge were doing what they wanted instead of following something vaguely akin to precedent.
What persuadable voter is being persuaded by the reasoning in the recent SCOTUS decisions?
I’m not sure that there’s a whole lot of overlap between the persuadables and the people who can name one of the recent SCOTUS decisions.
I mean, we could look at the approval ratings of Biden, the Supreme Court, Congress, the Senate, and throw out a hypothesis or two.
Or, I suppose, a link to an unrelated story and yell “BUT WHAT ABOUT THIS?” as loudly as we possibly could. I guess that’s an option.Report
Your link to your “positive argument” demonstrates my point.Report
My point that I’m *NOT* arguing for you to vote for Republicans? Or anybody at all, for that matter?
Yes.
Your point is 100% correct.Report
Yes, and so your comments are quintessentially conservative, at least as defined by modern American conservatism.
You have a list of things you detest, outgroups you find abhorrent, grievances and complaints.
You have no faith or trust in institutions (government, civic, or communal), or even in your fellow citizens.
But you wholeheartedly demand the violent crushing of unrest or disorder and see the law as a tool of enforcing whatever outcome you happen to favor.
These points are all gleaned from your very own words and posts.
So in your nihilism and cynicism you are the perfect embodiment of contemporary American conservatism.Report
Chip, I’d like to think that my answers to JHG were 100% in earnest and gave an honest accounting of what I thought.
What we’re doing here is demonstrating that it’s possible for a layperson to read an assertion from a lawyer about conservative judicial activism, look at the trial given as an example of it, and ask questions about this or that part of it.
For example, I still don’t know whether the statement made by the judge that Vega does not have a vested right in the relief he seeks because such relief depended on Rivera Vega applying for it and he didn’t is a true statement.
As for your statement that I don’t have trust in institutions, that’s true. When it comes to my fellow citizens, that’s false. I do a *LOT* of stuff with my fellow citizens. I engage in commerce with them.
But you wholeheartedly demand the violent crushing of unrest or disorder and see the law as a tool of enforcing whatever outcome you happen to favor.
This isn’t true. Though I would appreciate if police would respond to, for example, school shootings better than we’ve seen them do in Uvalde and Parkland.
I’ve argued for a handful of police reforms, that sort of thing. (You wouldn’t believe the people who show up to argue for the status quo in those arguments!)
My nihilism and cynicism is mostly due to the inability of the so-called “liberals” to comprehend cultures outside of the one inside of their bubble.Report
Of course you interact cheerfully with your fellow citizens. I’m sure you are also pleasant and easy to get along with.
My comment about not trusting your fellow citizens and your support for authoritarianism comes from our discussion about guns and the police and the George Floyd protests.
The disorder of urban spaces disturbs you deeply and even something like fentanyl sales causes you to react like Nixon declaring war on drugs.
Your repeated insistence that we can’t rely on a communal response to danger, but only a personal, individualized response like a gun indicates that you refuse to accept the existence or possibility of a cooperative unarmed peaceful community.
You repeatedly fret about what your obligations to such a community might be, and how that might intrude on your liberty.
Your idea of police reform begins with breaking their union and ends with stripping away QI.
In other words, a rejection of the heart of police reform which is a high trust community and collective consensus.
All of these are indicators of authoritarianism.
Authoritarianism is the default setting of humanity. After all other things fail, when trust hasn’t been constructed, when there is a void, Authoritarianism fills the vacuum.
You are a relentless advocate for the void.Report
My support for authoritarianism also involves busting up police unions and reforming stuff like QI. Which is a strange support for authoritarianism.
Not as strange as the anti-authoritarians who don’t want the unions touched, of course. Who wave away QI reform. “Just get rid of the police without getting rid of the unions or Qualified Immunity!”
Your repeated insistence that we can’t rely on a communal response to danger
I’m just pointing to stuff like Uvalde and where the cops protected the gunman and detained the people who wanted to stop him.
That’s not a repeated insistence as much as a pointing and saying “look” to people who argue against police reform.
you refuse to accept the existence or possibility of a cooperative unarmed peaceful community.
I mostly just notice the folks who call for house-to-house searches for guns, look again at Uvalde, and ask “who is going to be doing these searches?”
Chip, this is incoherent.
See it not as advocating for the void but taking the default setting into consideration when I explore stuff like “what would actually, you know, *WORK*?”
Like, I assume that one of our starting points is that we have a principal–agent problem.Report
A look at any authoritarian state likevthe Communist countries or Latin American dictatorships reveals that there are no independent centers of power such as police unions.
The authoritarian states grants no one immunity. A police officer can be fired or imprisoned just as easily as any civilian.Report
So we need police unions to help protect against authoritarians?
I see.Report
“[Jaybird,] you wholeheartedly demand the violent crushing of unrest or disorder and see the law as a tool of enforcing whatever outcome you happen to favor.”
you…you really think that’s what Jaybird wants?
are you fucking high?Report
“Trump, DeSantis, Abbot, You [Jaybird], Pinky”
This is the point where a conspiracy theorist can no longer distinguish between the supposed conspirators and the people who don’t hold to his conspiracy theory.Report
I realize my comments sound harsh.
So let’s try something.
What is your pitch to your fellow citizens, maybe the people right here, as to why we should support Republican leaders like DeSantis or Abbot?
Keep in mind that your audience includes non-Christians and seculars; women who want the right to contraception and abortion; gays and trans people; Non-white people and ethnic minorities.
What good can the Republican party do for us, in what way is it going to make our lives better than the Democratic party?Report
This comment deserves its own thread!
I’ll set something up.Report
I haven’t talked about politics or parties at all on this thread, and I neither have read nor care to read this particular subthread. The way you don’t notice the topic or the participants is part of the problem.Report
What is the alternative?
Is it “generic Democrat”? I’m pretty sure he’s not running.
Joe not coming up with a new vaccine and/or fueling inflation might be what gets him fired.Report
Remember who you’re talking to, the audience I described above.
Can you imagine any reasons why they might prefer the “generic Democrat”?Report
Sure, but I’m pretty sure he won’t be running.
In this thought experiment you are comparing “generic Democrat” (who has no flaws much less a track record that is less than inspiring) vs a “specific GOP” (who does have obvious flaws and problems).
If Trump wins the nod then I’ll vote for Joe. If it’s someone else then I’ll look at their resume and make a choice… but let’s look at Joe.
Joe is very old. He’s not able to order the FDA bureaucracy to speed up vaccination approval. His ideas have fueled inflation. He’s repeatedly looked at 48 votes and thought it was a majority.
You have to go “generic Democrat” because the reality isn’t really good.Report