Living with a Mind
Japanese & Boystown

SCOTUS & the travel ban

In this CNN article about today's SCOTUS decision on the (immoral) travel ban, the key paragraph is this one:

"That's going to be an extreme headache. Think about how the people at the border, at airports are going to make that decision," said Page Pate, CNN legal analyst. "Who is going to make this decision? If we leave it to the folks on the front line, that's just going to lead to more litigation."

SCOTUS often seems unaware of the real world implications of their decisions.  This could sow unnecessary chaos.  They should have maintained the hold until they ruled on the merits of the issue itself.

I'm reminded of something I read about Sandra Day O'Connor when she retired.  Her version of conservatism was Platonic--that the philosopher-kings should make decisions that maintained order and didn't create disruption.  The author said this is why she ultimately ruled in Casey v. Planned Parenthood for reproductive choice instead of against it as had been anticipated, because she didn't want to create chaos by overturning Roe.  

Also, there's this description of English common law I read this morning in the essay on the life of the mind by philosopher Roger Scruton:

It was there, as a member of the Inner Temple, that I first became acquainted with the common law of England, and I was astonished by what I found. The meticulously reported cases, going back over cen­turies, were not only an eloquent expression of life as my ancestors had known it, but also an illustration of thought in action. The laws governing the English, I discovered, have emerged from the judgments of the courts, and not been imposed upon the courts by government. Those brought up on Roman law or the Code Napoléon find this amazing, since they see law as a deductive system, beginning from first principles and working downward to the particular case. But common law arises as morality arises, from the desire to do what is right, not from the desire to expound the principle that makes it so. And often the principle eludes us, even when the rightness of the act is clear. Readers of Jane Austen will not need to be reminded of this. Like morality, the common law builds upward from the particular to the general. For justice is done in the particular case, and until tried in the courts, abstract principles have no more authority than the people who declare them.

The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent, and no act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision. Thus it was in the celebrated case of Rylands v. Fletcher (1868) in the law of tort, in which water from the defendant’s reservoir had flooded the mines of the plaintiff and put them out of use. No similar case had come before the courts, but this did not prevent Mr. Justice Blackburn from giving judgment in the following terms: “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie liable for all the damage which is the natural consequence of its escape.”

Until Rylands v. Fletcher no such rule had ever been formulated. But in Blackburn’s eyes, he was not inventing the rule; he was discovering a legal truth buried in the heart of things, bringing it to the surface, and clarifying matters that no politician had yet addressed. He thereby set the standard for environmental legislation in my country, and laid the foundations for the doctrines of enterprise liability in American law.

American law is supposed to be based on English common law, and historically common law was used to interpret our own law.  This excerpt shows both the folly of today's decision and the so-called "originalist" position of many of the current conservatives on the court.

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