Quote:
Originally posted by Greedy,Greedy,Greedy
I'm not going to pretend to understand all the issues involved in recusal, given that I'm not a litigator. But it doesn't necessarily strike me as a bad thing to require a bit better than a pure majority in some cases. I wouldn't want the barrier to be insurmountable, but a 5 to 3 margin doesn't seem like an unreasonable one.
Yes, if a decision were 4 to 3 and the 2 judges not there were likely to change it if the matter made it up to Supremes again, I'd worry about that in other cases. But aren't precedents in general always subject to being narrowed, rethought, amended, overruled? I don't think all precedents are created equal to begin with. And is having a case that is going to be weak precedent going forward worse than having a judiciary that appears compromised?
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That is some scary-ass shit you're coming up with. The major premise of our legal system is that precedents are an incidental effect of dispute resolution. You resolve the dispute of the litigants before you, and you leave it up to future litigants to rely on or distinguish the case based upon their own facts (which have yet to occur). A fair result in this case means precedent for a result that will
presumably --- but not necessarily --- be fair to future litigants with mostly identical facts. When you don't like the result in the later case, you call a bundle of other facts "relevant" and state a rule that applies to cases with those facts, leaving the precedent untouched. It's only when your case is on all fours with the precedent,
and the precedent has proven to be an unworkable rule (e.g. a rule whose application parties can't predict), that you overturn it.
This idea that "some precedents are better than others" is already addressed, if justices stopped this fucking modern practice of tailoring their words to resolve future cases as well as the present one, like they're legislators or something. They're not. The value of their "decrees" only extend to (1) resolving the present case and (2) providing some guidance to future courts about how cases should be resolved. The Supreme Court has gotten particularly bad about this, because they realized some time ago that their workload was such that entire areas of law would go decades without being addressed again by that court, so they took a "speak now or forever hold your peace" approach. They're more into stating rules for the next 15 years of 9th Circuit opinions than performing their dispute resolution function.
