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Think you need to do some soul searching because I believe my reasoning is solid that your love of West Wing debate society was really just the loss of the rule of law in America.
Not sure what you meant to say here. That "in the matter of law, there is no room for debate" ?
Yes. 100%. Granted the law can be messy so translating the law won’t be a perfect science, but for Courts to NOT be legislatures they really did need to limit how far they take interpretations and keep to the text. They really did need to behave as close as possible to being mathematics. Few want to constrain their own power.
Now though is an interesting time. It does appear that the court will be conservative for my lifetime. Dems can win the POTUS but I have significant doubts they can also hold the Senate. So conservatives have a choice now of either limiting themselves to textualism or adopting their version of a living constitution. Living Constitution is much more powerful than textualism. For now they have limited themselves to undoing things down over the last 80 years. I do think Democrats have given them the blueprint to just do things because they think they are good for society and not limiting themselves to the text that was passed in congress.
Ok, so I think we can agree on at least some things:
I think we might disagree on (not sure yet because we didn't delve into any specific cases):
I would commend conservative judges if they actually be the constraining force in the judicial system. But as you've demonstrated, the desire to just get the results you want is really overwhelming.
The conservatives haven’t crossed that rubicon. They mostly did things like uphold ObamaCare though they likely had strong legal arguments to axe it if they wanted to. They’ve ditched horizontal precedence which I think is fine for something like Roe where I think most people felt it was a bad ruling. They haven’t gotten rid of Obgerfell which doesn’t appear to have textual support. Largely because it’s popular and the politics bad.
I’m proposing they should consider adopting theories to make the Court a Senate because that’s what the left has done, but they are no where close to doing that. Robert’s has largely acting as a politician and not an interpreter and he’s acted as a politician in favor of the left.
A fundamental problem with your “debating” court is even if you say it’s fine provided they remain internal consistency they still get selected thru a political process. Which means they can be selected for the ones that will do policy for what the left wants. Not a big concern now because the left probably won’t get to pick judges for 30 years, but it is a long term problem. Venice had a weird political system where leaders were picked thru multiple rounds of voting that was indirect Democracy of elites. The SC has essentially become that where they get to make policy thru some very indirect Democracy.
When it comes to partisan results, each side tends to see its own decisions as principled and the other side’s as legislating from the bench, that's the difficulty of separating law from politics, which I posit is unavoidable. The “they defected first” point is not something either side can prove in a neutral way. Each side thinks the other crossed the line first. Once both sides believe that, permanent defection becomes self-justifying and breakdown accelerates.
The left definitely does not have the same perspective as you that "Robert has...acted as a politician in favor of the left".
Also, though I understand that from your perspective of "[once] one side has defected the optimal strategy is also to defect," but if I'm reading game theory on iterated games right, it's better to "cooperate" and decelerate/reverse the breakdown. Or are you arguing that a little "punishment" for the blues need to be done now and then go back to textualism later once the blues rediscover it (in the tit-for-tat strategy)?
That seems like an argument for stronger self-constraint, not weaker. Otherwise you end up with a fully political court selected politically and deciding politically, which is exactly the “Senate with robes” problem, just in your preferred direction. If reds point to Roe, blues would point to Gore v Bush. Hell, if we go back 100 years, liberals would point to Dredd Scott as an example of a conservative court overreaching.
Honestly I think the court is already dead. And it’s not coming back. Might as well admit it’s a Senate and use it to make the world a better place.
It’s tough to say who broke ranks first. Though most seem to point to the left. It can be noted though the left doesn’t even pretend to follow the law. A “Living” Constitution by definition is not bounding itself by the words that were Democratically passed. The other thing on the right I can think of would be economics and law merging where suddenly judges used economic test. That would probably be more “neoliberal” than “right”, but the right were considered the neoliberals for a while. For who fired first a strong indicator would be the side that is saying they aren’t limiting themselves as the culprits.
I would think that's exactly what the liberals said about Dredd Scott back in the 19th century. And it's true that it took a Civil War to right it. But, I believe people back then also decided that then treating the Court openly like a Senate doesn’t just accept the problem, it accelerates it, turning something imperfect into something fully broken, that's why they didn't just tear it down. My belief is that each pillar of government is a pressure valve. The fact that the Court gets more and more partisan is proof that the other two are in disorder. The American people doesn't elect good lawmakers, so they turn to the presidency for quick executive actions, when that fails, the American people clamor for relief by wanting to stack the court in whatever direction they prefer.
I agree with you that "living constitution" is not a good name nor idea for the current US, especially when unlike other countries, the Founders did not conclusively made clear on guidance of how to interpret the Constitution, nor has there been Amendments since to make that democratically clear. I would also like to point out that there are plenty of examples in history where there are things that are Legal, yet does not make it Just, and that tension is exactly why people veer into the extreme of legal cynicism where "might make right". Right now you say that the Liberals overreached because from your perspective the current court, that you agree with, is overturning liberal decisions from the last 80 years and reaching the "correct-er" decision. But around 80 years ago, we would have Brown v. Board of Education overturning the conservative even older Plessy v. Ferguson with regards to "separate but equal". Or maybe we would talk about West Coast Hotel Co. v. Parrish which gutted the older Lochner v. New York and upheld minimum wage (this would be similar to how we talk about the recent Louisiana v. Callais gutting the VRA). I'm sure for many people, that was also the "correct-er" decision. Even for the Dredd Scott decision, technically that's constitutional, it was just superseded. It would take a full arc of history for us to really see what is the most "correct-est" decision. And unfortunately for us humans, it takes debate, it takes pendulum swings from left to right, back to left, back to right, and so many more turns. The point is we don't want the breakdown of the rule of law. Dredd Scott led to the breakdown of the rule of law as Northern States did not enforce the decision, even though there were many calling for everyone to follow the law, I would guess that both of us agreed with fighting slavery being the morally correct choice. But we celebrate Lincoln because he preserved the constitution and the rule of law. He made sure that the 13th amendment was passed democratically, settling the debate for generations to come. That is virtue, for only when is it costly that a virtue is true. And that's what I'm imploring for all actors in the legal system.
Wasn’t Dred Scott correctly decided? Their listed in constitution as property?
If Democrat and Republican Law is different then we have a Senate. If liberal and conservative are different then we have a Senate. It needs to just be words on paper. Like if I am reading a Spanish author and give the book to 10 translators they basically give me the same English text.
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