Politics: J'accuse!

[Mmmm, Burger (C.J.)]

Originally posted by bilmore
Maybe I missed something. I hadn't seen this cast as "your vote for free ducks", but as "don't be off partying with your buds when you're deciding their cases", which is more like the bias thing than the buyoff thing.

Fair point, but I see it the other way. If Cheney and Scalia are good enough buds that they take hunting trips together, then the hunting trip alone shouldn't be the basis for recusal, the friendship should. If your friend comes before you on the bench, you shouldn't recuse yourself only in the days following your birthday or Christmas.

[bilmore]

Originally posted by Greedy,Greedy,Greedy
Is the requirement five votes or is it a majority of votes cast? In other words, if two justices recused themselves, would four out of seven be needed or five out of seven?

Forgive this non-litigator his ignorance, but I see a significant difference in this issue depending on the answer.

I believe it is five votes.

[Mmmm, Burger (C.J.)]

Originally posted by Greedy,Greedy,Greedy
Is the requirement five votes or is it a majority of votes cast? In other words, if two justices recused themselves, would four out of seven be needed or five out of seven?

Majority, not 5. Quorum is 6. To grant cert. requires 4 votes regardless of recusals.

But question the precedential value of a 7-justice decision (would you be comfortable standing on the basis of case decided by 7, if Thomas and Scalia had been recused?)

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
But question the precedential value of a 7-justice decision (would you be comfortable standing on the basis of case decided by 7, if Thomas and Scalia had been recused?)

Lower courts are not entitled to question the precedential value of a superior court's decision, regardless of how it was obtained. (An exception would be a federal district court, looking at an intermediate state court of appeal's decision on a matter of state law, since doubting its precedential value is part of its job of ascertaining how the state's Supreme Court would determine the issue --- but that's not really an inferior court.)

Given that Scalia has said publicly that overturning RvW would be less disruptive to American life than leaving it intact, it seems stare decisis is pretty much a matter of whether today's majority is the same as yesterday's majority. I can't think of a con law decision that would be more disruptive to settled law to overturn, except mebbe Buckeye Boiler.

So I would be comfortable relying on a 4-3 decision until it gets appealed to the SCOTUS, in which case all bets are off for stare decisis anyway.

[Hank Chinaski]

Originally posted by Mmmm, Burger (C.J.)
Fair point, but I see it the other way. If Cheney and Scalia are good enough buds that they take hunting trips together, then the hunting trip alone shouldn't be the basis for recusal, the friendship should. If your friend comes before you on the bench, you shouldn't recuse yourself only in the days following your birthday or Christmas.

I'm not "friends" with any judges I practice before, but I really would want them to recuse themselves if I were. I worked at the PTO, and have some very close friends there as Examiners (a quasi-judicial position). My clients got fucked by these guys at first, because they wanted to seem above any bias, and ruled any doubt against me. I now ask for any case to be transfered

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch


So I would be comfortable relying on a 4-3 decision until it gets appealed to the SCOTUS, in which case all bets are off for stare decisis anyway.

Agreed. I didn't mean to suggest that lower courts would not be bound. But it seems to me, and I thought I was taught some basis for this in law school, that a justice would be less inclined to feel bound by stare decisis on a question resolved by the court as currently composed, but when that justice was recused, than on a question decided by an earlier court. That was my sole point--nothing broader.

[Greedy,Greedy,Greedy]

Originally posted by Mmmm, Burger (C.J.)
Majority, not 5. Quorum is 6. To grant cert. requires 4 votes regardless of recusals.

But question the precedential value of a 7-justice decision (would you be comfortable standing on the basis of case decided by 7, if Thomas and Scalia had been recused?)

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?

[Atticus Grinch]

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?

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.

[bilmore]

Originally posted by Atticus Grinch
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.

Don't forget the writing of the Constitution. That has to be exhausting, and they should certainly get credit for that, too.

[Atticus Grinch]

Originally posted by bilmore
Don't forget the writing of the Constitution. That has to be exhausting, and they should certainly get credit for that, too.

I hear most of it is ghostwritten by Bruce Vilanch. All the good parts, anyway.

[SlaveNoMore]

Tyrone_Slothrop
Kevin "Ho'" Drum posts translated polling data from Spain:

8% decided after the attacks.
[/list]

Since the victory was what, 4-5 percentage points, I guess its safe to say that the terrorists won.

[Greedy,Greedy,Greedy]

Originally posted by Atticus Grinch
That is some scary-ass shit you're coming up with. ...

You may be reading more into what I wrote than I intended; at the same time, I do think that judges have been aware of the precedential value of their decisions since precedents first were recorded (and quite possible before). By referring to precedents being narrowed, amended, overturned, etc., I am referring to exactly the process where, by application in new circumstances and to different facts, broad principles are either developed or modified or exceptions are carved out.

Where I think you're not quite accurate is in ignoring the need to have broader rules developed at common law coming out of decisions. Regardless of individual facts, a pronouncement that, for example, it is permissible to apply concepts of comparative negligence, or the establishment of a judicial test refining the question of when someone is an agent of another, are certainly well within any English-tradition's court's traditional (holding a meaning that goes back long before the constitution) role.

[Greedy,Greedy,Greedy]

Originally posted by SlaveNoMore
Since the victory was what, 4-5 percentage points, I guess its safe to say that the terrorists won.

A simple factual point: If the 8% broke 5%/3%, the impact of the terrorists was not decisive.

[bilmore]

Originally posted by Atticus Grinch
I hear most of it is ghostwritten by Bruce Vilanch. All the good parts, anyway.

I always feel inadequate when I have to Google a name, especially when my reaction to the results is "oh, yeah . . ."

[bilmore]

Originally posted by SlaveNoMore
Since the victory was what, 4-5 percentage points, I guess its safe to say that the terrorists won.

Well, too, berate a people for almost two weeks for caving, call them yellow, and then ask them in a poll why they did what they did?

"Oh, yeah, we were craven . . ."