h a l f b a k e r yI CAN HAZ CROISSANTZ?
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Aside from the obviously partisan nominating
process, the current Judiciary, though
independent, is facing challenges even from the
strictest constitutionalists. The notion of
lifetime appointments in the age of expanding
life expectancy is problematic, as is the
perception that the courts
rule along predictable
party lines, it's presumed for instance that
Roberts upheld the ACA solely to avoid such a
perception.
Some have proposed amending the constitution
to set a limit of 12 or 16 years on the Justices.
Aside from at least fractionally reducing
independence, it's not clear to me how that
changes anything.
The idea here is to abolish the notion of a federal
suoreme court in favor of a jury system drawn
from a pool of State Supreme Court justices,
who deliver their verdicts blind. In other words,
they do not know when submitting their opinion
if it's going to count, a random 9 opinions out of
possibly 100s submitted is chosen. Appeals
from lower courts do not use the jurors from
those courts, and normal precedent rules apply,
so there's no reason to believe that the decisions
would become less stable, but it appears that
they would be more balanced and less political,
while also being more democratic
Funny given our discussion
http://www.dailymai...-justices-vote.html
[theircompetitor, Mar 12 2016]
[link]
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An interesting proposal. Do you think consistency of ruling
would become a problem in this type of arrangement, or is
consistency even something desirable if you want the court
to remain apolitical? Or would it over time, fix itself as
judges become more aware of their differences? |
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And would this ultimately place more political pressure on
the state courts? |
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No doubt the pressures would exist, but I think this
has several advantages. It dispenses with the
fantasy that they are impartial, in favor of achieving
balance statistically. I think given deference to
precedent and previous rulings stability would not
be a issue. |
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I think I'm most interested in the blind part.
Somehow it feels right |
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The state pool is the most convenient and I guess
most democratic. I don't quite think it could be just
editors of law journals, for instance |
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This is a fine idea, but one would want to go thru the submitted opinions and make sure the ones that counted were the best ones. |
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Plus what if some judge put lots of time into the opinions but then never got picked to make the cut? Bad for morale! You want to make sure that people who are really putting in the effort get recognized. Otherwise (especially if there are 100s) everyone will just halfass it. |
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Also, judges might think they are too busy to be bothered with all that, and have their clerks or some lobbyist write the opinion. Lots of people go to law school but then have to wait tables for a living because those high paying partnerships are so choosy. Giving some of those underemployed law school grads a chance to write an opinion would get them some PR and maybe a job. They would probably really work hard at it too. |
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Finally, I feel like what is proposed here is still too inbred. The internet has made clear that there are a fair number of smart people who live outside the united states. Inviting smart foreigners to write some opinions would bring in fresh ideas. Plus it would give them a chance to get familiar with the good stuff in the US Constitution, some of which they might want to set up in their own countries. |
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" It dispenses with the fantasy that they are impartial " |
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Wow, you don't have a very fun fantasy life, do you... |
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" I think I'm most interested in the blind part. Somehow it feels right " |
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Yes, that's how Braille works. |
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" Inviting smart foreigners to write some opinions would bring in fresh ideas " |
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So the Halfbakery model of the Supreme Court ? That would be interesting. |
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" The idea here is to abolish the notion of a federal suoreme court " |
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Is that where S'mores go for judgement ? |
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Interesting idea. The blind aspect is the key. In the vein of [bungson]'s comments, rather than discarding dozens of opinions, have the panel submit ruling outlines (i.e., I would allow the appeal due to precedents A, B, and C) and randomly select from those. Then farm out the opinion writing to someone who will do a good job. That would keep quality high, while preserving the essence of it. |
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Normzone, sadly I create fantasies for people, I
don't live them :) |
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Hang on hang on. Am I wrong in thinking that (a) in the US
juries are used only for findings of fact and (b) that the US
Supreme Court is used only for determination on points of
law? |
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Not sure what you mean by the second only. The
court can decide a law is unconstitutional, but it can
also overturn ir uphold lower court rulings on
specific cases, thereby rendering a verdict |
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To whom does the case get presented? Under the current system, the justices get to hear arguments and ask questions before deciding a verdict. Your method seems to overlook or eliminate this bit, which I think is an important bit. |
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// Not sure what you mean by the second only. The court can decide a law is unconstitutional, but it can also overturn or uphold lower court rulings on specific cases, thereby rendering a verdict//
To rephrase the question, then, can the US Supreme Court overturn a decision (and thereby render a verdict) on the basis of anything other than an error or misinterpretation as to law (e.g. in relation to the admissibility of evidence) by the inferior court? |
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I think tatter's found a rather largish flaw; the entire
system would be very slow and cumbersome in that the
verbal arguments would need to evolve into mostly
written argumentation (which brings its own perils of
change outside of verbal argumentation) or some kind of
collective forum. |
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Perhaps a rotating group of judges can serve as the
explorative bench in attempt to flush out questions of
the litigants from as many angles as could be thought of,
with the resulting answers posted. |
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These rotating group of judges could be rated as to their
overall performance by their peers. Judges with higher
score results could have their opinions count more often
or be picked more often in the final ruling or somesuch.
This way the natural talent (or, grotesquely the most
politically-astute) would bubble up to the top. |
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'bungston's proposal of Making sure the opinions
submitted were the best ones' I see as a pitfall. |
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[calum] -- I believe it's like any appeal flow -- not sure if
that helps the distinction in any way. |
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[tatter] -- in reality -- and you may have seen in news
coverage -- the Q&As are a bit of theater that became a
bigger deal in recent decades. Most of the information is
submitted via documented briefs, and it's likely rare --
though not impossible, of course -- that a genuinely new
question is asked, or the answer is not known before the
question. |
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In any case, clearly, workign mechanisms can be created --
imagine something more akin to a public company's
quarterly earnings call -- any number of people speak for
the company, and potentially dozens of analysts ask
questions. |
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I agree [Ray] -- "best" breaks the whole point -- the idea
here is to accept that ideologies differ --and perhaps
should continue to influence given the pool -- but should
be statistically ameliorated. While in practice the
Obamacare decisions show you do not always get the
outcomes you expected, the amount of partisan fighting
over the judges shows that in fact that's what the political
branch is shooting for. This is an attempt to stop that. |
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In addition[bungston] -- there's no shortage of opinions. It's
not like everyone from law students to high school
students doesn't write essays on capital punishment. Best
would become "referendum". I think law cannot be THAT
dynamic. |
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But the case presentation is often the best part of the experience. Bad enough that we will have to do without the entertainment of Scalia's lines of inquiry, as much as I disagreed with him on many topics, he was always fun to listen to. This method would effectively create a court of nine Clarence Thomases and I can think of few things less exciting. |
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As well there is an entire cottage industry created to coax out whatever potential leanings that may be evident in the questions from the justices that will no longer have purpose. This is half the fun, especially for contentious cases, we need some insight so we can be surprised when we guessed wrong. |
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Practically it's not a reasonable suggestion as it would require a constitutional amendment which is something that might never happen again in the history of the country, certainly not for a motion which takes away power from both of the other branches of government. |
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I agree it's not a likely proposal to occur in the near term,
[tatter]. An amendment stripping lifetime appointments is
something that has some traction and may occur, especially
as life expectancy grows |
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Funny that, supreme court justice has always been high on my list of dream jobs, aside from the whole living in that part of the country thing. |
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I think judicial independence is sufficiently important that
it's warranted for now. And I suppose if life expectancy is in
the 120 range, nominating a justice for 80 years is the least
of your problems :) |
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Eventually some Google aggregation app will be our judge. |
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"My logic is undeniable..." |
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Normzone, sadly I create fantasies for people, I don't live them :)
— theircompetitor, Feb 17 2016 |
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Well then, for all your vaunted prowess you should reassess your priorities. Life is short. |
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you referring to my vaunted powers of persuasion? |
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I have grandchildren. Believe me, my priorities are all in
order :) |
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Besides, no one outside of Hollywood fantasy has been
able to build what I'm looking for. That's why I'm building
it for real. As someone in the press recently said -- and I
quote "A place where you can “ride with Genghis Khan or
dance to Chaka Khan"" makes what I'm building the most
anticipated virtual world of 2016 |
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You've been building that thing for a couple years
now. Finished yet? |
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My father just became a great-grandfather. Blows
my mind. |
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Stripping lifetime appointments is an honorable goal, but currently it is difficult to say how much support it would get. We may learn a lot more about that over the coming year. Any such proposal would mean the end of a term would be known well in advance, and so it's hard to predict whether that would be seen as positive or negative. |
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// You've been building that thing for a couple years now.
Finished yet?// It wouldn't be the most anticipated then,
would it :) |
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You don't build the metaverse in seven days, or at least I
couldn't. Very sadly, my co-founder and partner for 30 years
passed away suddenly and it took more than a year to recover
from that (he is irreplaceable as coders go). But we're
getting there. |
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Nice new link there, [tc] |
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[-] it's my (totally unresearched) understanding that SCJ's opinions are supposed to be representative of the US at a federal level, thus picking State Justices' opinions would be counterproductive. And that's before we get to the part where you're requiring people who already have jobs to do other people's jobs as well. |
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