6 Comments

"Is this a principled way of judging? It depends on whether 'I am generally sympathetic or unsympathetic towards group X” is a principled criterion.'"

I would argue that to the extent the sympathy or lack thereof attaches to the group rather than the underlying issues of the case, is emphatically NOT a principled criterion. It is one thing for a left-liberal, ACLU-adjacent judge in the 1990s or early 2000s to have taken the view that the First Amendment broadly protects speech for everyone while the Second Amendment protects no enforceable right at all (illusory "collective" ones notwithstanding) for anyone. It would be quite another for that same judge to have suddenly found a right of some traditionally disfavored (and therefore favored, by him) group to bear arms in a particular instance, or to have conveniently found that some pro gun rights rally falls outside the First Amendment that would normally have been construed more broadly for advocates of anything else. Or to borrow your own example, knowing that a death penalty case lost 6-3 without knowing the precise underlying legal arguments or issues is not evidence of bias, but could be if the same court showed a pattern of striking down some death penalty cases 6-3 while upholding others 5-4, where the only obvious difference between them was the kind of person getting executed.

A less hypothetical example, perhaps, would the originalist judges who universally agreed in the 1990s that the free exercise clause of the First Amendment was originally intended to provide no religious exemption to any neutral law of general applicability (Employment Division v. Smith, City of Boerne v. Flores (1997)) but now seem equally unanimous that it does (Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, Burwell v. Hobby Lobby Stores, Inc., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 303 Creative LLC v. Elenis). It is not as though the First Amendment itself changed over the past few decades, nor did anyone uncover any new evidence from the 18th Century that the framers of the First Amendment originally intended anything different in 1791 than the originalists originally determined that they had in 1990. The only obvious or apparent thing that did change is which religious group is asserting that right.

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> It makes case outcomes less dependent on the composition of the Court.

But it makes them more dependent on the composition of previous Courts at random times. Is that better?

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Maybe the answer is to end civil forfeiture until after a criminal conviction.

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I’m an extreme legal realist and am unsure there is any principled way to judge. (This article makes a case for robotic judging as most principled but I’m unsure it works for difficult issues like gun rights, abortion, etc.) I’d have a lot more respect for the courts if judges were honest about their biases. As it is, I think they are lying to themselves, to us, or to both in saying they are “applying neutral principles of law to decide cases,” Agendas can be wise or unwise, but hidden agendas are dishonorable and cynical.

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This might not be workable--but how about allowing an owner disputing a forfeiture to post a bond for the value of whatever is forfeited, with the proviso that if the forfeiture is determined to be unreasonable, the public entity reimburses the owner for the premium. That would allow use of the car by the owner claiming innocence while the more complete forfeiture hearing can be organized and disputed. That won't solve the problem of the unequal burden of proof between civil and criminal determinations, and I don't know if sureties WOULD want to write this kind of bond. I presume the underwriting would look at the "innocence" details in considering whether or not to post the bond.

Thus even if the car is driven to another state, or even wrecked, the state would get its money if it is entitled to it.

On the topic of precedent: I agree that no judge can operate entirely without his or her preferences or biases being involved, and that the key is whether they can come up with a principled way of deciding whether to go with precedent or new ground. And the key to whether they do depends a whole lot on the reasoning shown in the opinion. With something like Dobbs, the reasoning was so awful that it is hard to justify calling the overturning of precedent as "principled." Perhaps someone could have come up with an opinion that justified the departure, but Alito didn't pen it.

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I cannot remember the last time I read a legal analysis of a Supreme Court Split Decision that wasn’t focusing on the individual justices legal theories or biases. It was probably law school. You presented the case so reasonably that I was surprised Kagan was in the Dissent, since she is normally the Justice I trust to read precedent fairly. But once again, I’m part of the problem, focusing on the specific Justices rather than the law

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