"The right side of history" is for politicians to pursue, not for judges. They aren't supposed to make policies or create laws, their job is to apply the laws. If they do their job correctly, and you disagree with the constitution and therefore also with their decisions, that should never be an issue for them.
This is sort of a stylized high-level description of how the U.S. government works, but it isn't really true. Law is often made by the courts (we call it precedent). Law is also made by the executive branch (by writing detailed regulations).
It does have to be justified based on existing law and this is important. But often, existing law only talks about broad principles or is contradictory, and judges are expected to fill in the details. In the case of the U.S. Constitution, these "details" can be really huge gaps.
Sure, that's unavoidable, but it's not the job definition. My point is that judges should never be guided by "how will some group/the majority/the elite/my children consider my decision now/in 5 years/in a century" but only by what they believe to be right at the moment of ruling. Otherwise, you're setting yourself up for arbitrary rulings to appease some future historian and create judges that try to rule to win popular support. "Polls say the majority wants the death penalty for petty theft? I better give them what they want"
I'm not sure there is much of a distinction in practice between asking "how will history see this" and trying to do what's right? You don't get a magic ball to find out what will actually be popular. It's just a way of putting yourself in a state of mind to take a more long-term view of things.
> I'm not sure there is much of a distinction in practice between asking "how will history see this" and trying to do what's right?
I didn't mean "what's right" as in "what I feel is right", but in's what the law says. The policies are for the politicians, trying to merge the judiciary and the legislative doesn't sound like such a great plan to me.
Well, maybe read the part about filling in the details again. "What the law says" is often not clear. That's why it made it to an appeals court. In such situations, judges can't simply follow existing law. It just doesn't provide that guidance.
And I totally agree with you on that, but that's not what "judge by thinking how good you'll look 50 years from now" is. Filling in the details is more "applying the spirit of the law to a particular case not explicitly covered", it's not about creating new de facto laws based on your personal (political) opinions.
Where do you think the "spirit of the law" comes from and how does a judge apply it? It's by thinking about what others would expect. Whether it's about the past (original intent) or the future, this is an act of imagination (supported by research) where they are thinking about what others would want. There isn't any "view from nowhere".
If you don't care about what other people want and how the law affects people, then there is no morality or justice and it might as well be a coin flip.
The supreme Court primarily hears important cases where there are strong and reasonable legal arguments on each side. The idea that they can just apply the law in these cases is a bit unrealistic. It's just not that clear cut in the majority of SC cases.
Sure. But it's still their job, even if it's hard. "What will the media think of me, if I decide X" would certainly make it easier, but fortunately doesn't seem to have become the guiding principle yet.
It's strange that the idea that judges shouldn't decide by (future) popularity gets downvoted. At times I don't understand this community at all. Is that a "I believe that my opinion will rule supreme in 20 years, so judges should submit to it now and just ignore the constitution"-thing?
Usually, the court decides important case on extremely subtly technical details unrelated to the main merits of the case, and the results are blown way out of proportion by the wider sociery.
They should strive to create equal protection under the law, which over time they have done, by striking down laws that aren't this like Jim Crow laws etc.
This is what an appeals court justice does and their check and balance role on the other two branches of govt.
