A huge piece of this is that they are creating judicial tests that are hugely subjective.
They are happy to issue this ruling because when some policy they like comes around they have given themselves the legal cover to interpret it as a constrained delegation of power.
The same can be said for the historical tests they have introduced. They ask that judges look for the "history and tradition" of various activities knowing that they don't have to defer to an actual historian or linguist. They can find the history that agrees with them or form the question such that the history agrees with them. e.g. in the case of Dobbs, the question they asked was "is access to abortion part of our history or tradition?" when they could have just as reasonably asked "is privacy and bodily autonomy part of our history or tradition?"
It is calvinball as jurisprudence and the cases this term are far from the last time we will see these 5 blatantly contradict themselves and/or good faith interpretation to reach a policy outcome.
enragedcacti|3 years ago
They are happy to issue this ruling because when some policy they like comes around they have given themselves the legal cover to interpret it as a constrained delegation of power.
The same can be said for the historical tests they have introduced. They ask that judges look for the "history and tradition" of various activities knowing that they don't have to defer to an actual historian or linguist. They can find the history that agrees with them or form the question such that the history agrees with them. e.g. in the case of Dobbs, the question they asked was "is access to abortion part of our history or tradition?" when they could have just as reasonably asked "is privacy and bodily autonomy part of our history or tradition?"
It is calvinball as jurisprudence and the cases this term are far from the last time we will see these 5 blatantly contradict themselves and/or good faith interpretation to reach a policy outcome.