The US Supreme Court

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Re: The US Supreme Court

Post by Hermit » Mon Jun 27, 2022 11:58 pm

In light of the two recent SCOTUS decisions:

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Re: The US Supreme Court

Post by Tero » Tue Jun 28, 2022 12:53 am

Abortion, same sex marriage etc. are tricky in that the courts got to the issue before there was any federal law. The court decision becomes law. But courts can reverse rulings left and right.

https://en.wikipedia.org/wiki/United_States_v._Windsor
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Re: The US Supreme Court

Post by macdoc » Tue Jun 28, 2022 1:41 am

No abortion laws in Canada except late term limits...
rest is between doc and patient....rest can fuck right off
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Re: The US Supreme Court

Post by Brian Peacock » Tue Jun 28, 2022 9:08 am

Tero wrote:
Tue Jun 28, 2022 12:53 am
Abortion, same sex marriage etc. are tricky in that the courts got to the issue before there was any federal law. The court decision becomes law. But courts can reverse rulings left and right.

https://en.wikipedia.org/wiki/United_States_v._Windsor
Yeah, because 49 years was never enough time to codify Roe v Wade into federal law.
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Re: The US Supreme Court

Post by Hermit » Tue Jun 28, 2022 9:47 am

Brian Peacock wrote:
Tue Jun 28, 2022 9:08 am
Tero wrote:
Tue Jun 28, 2022 12:53 am
Abortion, same sex marriage etc. are tricky in that the courts got to the issue before there was any federal law. The court decision becomes law. But courts can reverse rulings left and right.

https://en.wikipedia.org/wiki/United_States_v._Windsor
Yeah, because 49 years was never enough time to codify Roe v Wade into federal law.
As if that would have made any difference. The judges would have struck the federal law down on grounds that it is beyond the enumerated powers listed in the constitution.
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Re: The US Supreme Court

Post by rainbow » Tue Jun 28, 2022 11:41 am

Hermit wrote:
Tue Jun 28, 2022 9:47 am
Brian Peacock wrote:
Tue Jun 28, 2022 9:08 am
Tero wrote:
Tue Jun 28, 2022 12:53 am
Abortion, same sex marriage etc. are tricky in that the courts got to the issue before there was any federal law. The court decision becomes law. But courts can reverse rulings left and right.

https://en.wikipedia.org/wiki/United_States_v._Windsor
Yeah, because 49 years was never enough time to codify Roe v Wade into federal law.
As if that would have made any difference. The judges would have struck the federal law down on grounds that it is beyond the enumerated powers listed in the constitution.
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Re: The US Supreme Court

Post by Svartalf » Tue Jun 28, 2022 12:49 pm

You know, by the age they get nominated to the court, the men are already effectively eunuchs
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Re: The US Supreme Court

Post by L'Emmerdeur » Tue Jun 28, 2022 5:25 pm

Justice Gorsuch was willing to simply lie in the school prayer case. When you're doing Jesus's work, they let you do it.

'Gorsuch Blasted After Photos Expose His Claims in High School Coach Praying Case Are a "Flat Out, Knowing Lie"'
Many people from legal experts to court watchers to journalists to ordinary Americans on social media are criticizing Justice Neil Gorsuch for his majority opinion in a decision siding with a former high school football coach. That coach sued after the school district ordered him to stop praying after every game at the 50-yard line. Justice Gorsuch’s opinion, as many are noticing, appears to be based on facts that are false. Several are accusing Gorsuch of just plain lying.

Justice Gorsuch claimed the coach’s First Amendment rights were violated, and that he was merely engaging in “quiet personal prayer” as he knelt.

Gorsuch uses the word “quiet” 14 times, as The Washington Post’s Paul Waldman notes.

“Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks,” Justice Gorsuch writes as he begins his majority opinion. “Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy’s religious beliefs. That reasoning was misguided.”

“The contested exercise here does not involve leading prayers with the team,” Gorsuch continues (despite photos that appear to suggest otherwise), “the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015.”

These are the photos of Coach Kennedy that Justice Sonia Sotomayor included in her dissent:






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Re: The US Supreme Court

Post by Svartalf » Tue Jun 28, 2022 5:44 pm

They lie, and they bend the constitution out of any shape and away from anything the Founding Fathers would have intended, and you can't even disbar them.
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Re: The US Supreme Court

Post by Tero » Thu Jun 30, 2022 8:59 pm

More power to state legislatures. Feds have no say in elections other than "electoral college."
https://www.npr.org/2022/06/30/11068668 ... &fs=e&s=cl
https://esapolitics.blogspot.com
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Said Peter...what you're requesting just isn't my bag
Said Daemon, who's sorry too, but y'see we didn't have no choice
And our hands they are many and we'd be of one voice
We've come all the way from Wigan to get up and state
Our case for survival before it's too late

Turn stone to bread, said Daemon Duncetan
Turn stone to bread right away...

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Re: The US Supreme Court

Post by L'Emmerdeur » Fri Jul 01, 2022 2:47 am

Brian Peacock wrote:
Sat Jun 25, 2022 1:22 pm
Thanks for the additional context :tup:  
Eh, I was in a long online queue, so had the opportunity to blither.  Sorry this is getting a bit bulky. ;)
Brian Peacock wrote:
Sat Jun 25, 2022 1:22 pm
SCOTUS is a democratic institution, and therefore embedded in the political life of the nation.  The constitution of the United States is a political document--the political document--that defines the nature of the state, the citizenry, the relationship between the two, and the means by which that relationship is to be administered through institutions like the executive, legislature and judiciary. It also defines the bounds of action the state and citizen can undertake through the codification of rights - which is wholly a political matter.
Agreed that the US Supreme Court is a 'democratic institution' to the extent that it is part of the putatively democratic government of the US. It has the distinction of being in reality the least democratic of the three branches, and that was intentional: Supposedly insulated from the roar of the crowd. There is a serious flaw in that scheme-- the anti-democratic method by which justices are installed has allowed the court to be weaponized. Though demonstrably a minority in the US, the conservative/regressives control an impervious majority on the court, and are willing to push their party's agenda regardless of how it erodes the court's legitimacy. The court has joined in the 'culture wars' and we're seeing blatantly political decisions being handed down.

I pointed out that the court has always acted in a political manner, but it for the past few decades it has been relatively balanced, which allowed for reasonably equitable decisions. That no longer holds, and it can be directly traced to the anti-democratic process by which justices are installed in the court.
Brian Peacock wrote:
Sat Jun 25, 2022 1:22 pm

So I was a bit sloppy in my language there.  I don't think that SCOTUS isn't or shouldn't be political in that sense, or that it should be avowedly non-political, only that, from where I sit, it appears to be tending towards the overtly Political in the partisan sense.  The reason why this might be seems quite straightforward: packing SCOTUS with judges predisposed to a particular administration's political or ideological outlook appears to lend legitimacy to that administration's political or ideological outlook &/or agenda.  In normal times an administration's policy agenda would traverse legislative processes and the SC would only test that which threatened to conflict with the provisions of constitution.  However, with the legislature seemingly unable to function effectively at present, the executive, in the form of the office of the president, increasing relies on forwarding the administration's policy agenda through the constitutional equivalent of the Papal Fiat--the executive order--and does so in circumstances where a packed SC acts like a college of cardinals appointed solely to authorise the agenda of their patron.  

So when I said that the SC was determining the bounds of national endeavour I was really thinking about the scope of executive power and the provision of policy, how the implementation of policy can side-step the legislature, and where the independence of the judiciary is sublimated, subsumed or superseded by a partisan, appointed SC.  

The examples you've offered above suggest that, to some extent, this has always been the case - or at least that there has always been the impulse for an administration to nominate SC judges with obligingly sympathetic outlooks.  The saving grace is that administrations only get four years whereas SC judges get a lifetime - the Popes are regularly replaced, ecumenical considerations shift as social conditions and attitudes drift, and over time the cardinals gain a bit of distance from their patrons and the political melee of their appointment, and can, in theory at least, exercise a greater degree of judicial independence. ... In theory, at least.

My broader point is that the judicial independence of the SC cannot be assured or maintained, particularly and vitally in the public consciousness, when the majority decisions of the court are routinely framed as being merely the decisions of right-wing (or left-wing) judges.  To me, this seems like completely the wrong way to think about a body like SCOTUS and, as I said, leans into the view that the republic's 'ultimate institution of arbitration' is necessarily Political in the partisan sense, and therefore there should be an appropriate left/right political balance to the court in order for it to function 'properly'.
It would appear that is the case, however. Mitch McConnell (Republican leader in the US Senate) cares nothing for 'judicial independence' and the perceived legitimacy of the court. He cares about amassing power and wielding that power to push the Republican agenda. Thus his refusal to allow a hearing for Obama's nominee to the court on the transparently specious grounds that it was too close to a presidential election (the election was 8 months away), and subsequent rushed hearings and confirmation of Justice Barrett only days before the presidential election.

I like your College of Cardinals/Pope analogy, but don't think it really captures the situation. The 'pope' chooses the 'cardinals,' for instance. Also, the court has had on occasion an adversarial relationship with the executive, depending on the political circumstances.

I don't know how much you know about the Federalist Society, but they have been the engine behind the way the court has evolved in the past few decades. They recruit promising young conservative lawyers and cultivate and mentor them to climb the judicial ladder. All six of the right-wing justices currently on the bench were or still are members of the Federalist Society. There is an explicit and decidedly right-wing agenda that the Federalist Society pursues. We can see the result in the decisions handed down by the court in the past month or so.
Brian Peacock wrote:
Sat Jun 25, 2022 1:22 pm
L'Emmerdeur wrote:
Wed Jun 22, 2022 10:34 pm
Brian Peacock wrote:
Wed Jun 15, 2022 8:58 am
Of course, a fair reflection of the state of play is always needed to both maintain and challenge the working order of our democratic institutions, but the problem here--and it's not just an issue for the US--is that the good working order of our democratic processes and institutions should not depend upon the political persuasion of a democracy's elected officers and functionaries.
The anti-democratic nature of the US Senate (which confirms new justices) prevents a fair reflection of the state of play when it comes to the US Supreme Court. The performative pose of 'government is the problem' adopted by the Republican Party in the last 40 years or so has exacerbated this fundamental issue. Ideologically they abandoned the effort to maintain the federal government in good working order, choosing instead to pursue a fantasy version of 'freedom.' Their ideal of 'freedom' is selective, favoring certain elements of the population. As long as that's the case, the political persuasion of the elected officials and non-elected functionaries is crucial.
You make my point quite eloquently here - you've just replaced the idea that the SC is being framed as 'necessarily Political' with a statement that it's 'crucial' it is Political.  I understand the pragmatism - I'm just extremely wary of it.
I was making a slightly different point. The current circumstances (recent evolution of the Republican Party and the rising influence of the Federalist Society) have brought the importance of the political position of the justices to the fore, and the country will suffer for it. The decisions handed down in the past month demonstrate that more eloquently than I ever could.

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Re: The US Supreme Court

Post by L'Emmerdeur » Fri Jul 01, 2022 2:55 am

So you're a textualist justice and can't find a textual justification for the way you want to rule? No problem, create a 'canon' out of whole cloth which agrees with your agenda.

'Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really "Textualists" and Applies Statutory Canons Reflecting Its Values'
Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it.”

This term surely proves the point. The “normal” mode of textual analysis we see from Justices like Justice Gorsuch begin with the words of a statute, often read in the context of surrounding text, looking to dictionaries and other tools of ordinary meaning. And the approach avoids relying on legislative history as unreliable or even unconstitutional. The larger debate over textualism and the flaws in it are well covered in the late Judge Bob Katzmann’s excellent book, “Judging Statutes.”

But put aside that debate for today and take textualism on its own terms. In today’s EPA case, like the Supreme Court’s earlier ruling saying OSHA had no authority to require covid vaccines in larger workplaces, show that the conservative Justices are fair weathered textualists. In both cases, they don’t turn to dictionaries to figure out if the relevant agency has the authority from Congress to take on key issues in its area (EPA to deal with climate change threats from greenhouse gases and in OSHA the authority to regulate workplace safety).

Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety. How do to so? Textualists have adopted certain “canons” or rules of thumb to decide cases. Many of these canons are about how to read punctuation and grammar (like the last antecedent rule). But there are also “substantive canons” that put a thumb on the scale when it comes to interpreting cases. A rule for example that says to read criminal statutes leniently to favor criminal defendants is one example, because of constitutional protections for criminal defendants. Justice Scalia, who claimed to be an avid textualist, said that such canons cause whole a lot of trouble for an honest textualist. (I wrote a lot about this in a chapter in my book on Justice Scalia, The Justice of Contradictions.)

Today, as in the OSHA case, the Court pulls a rabbit out of a hat using what it now calls the “major questions doctrine.” It says that on big issues, the presumption is—even if Congress’s language is broad and wide as in these two cases—that Congress did NOT delegate the power to the agency to regulate a big issue. Congress has to be really clear and specific — again, even if as in the EPA and OSHA cases, there is a broad general grant of authority.

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Re: The US Supreme Court

Post by Tero » Fri Jul 01, 2022 10:36 am

Clarence Thomas suggests Covid vaccines are developed using cells of ‘aborted children’
https://www.politico.com/news/2022/06/3 ... n-00043483
https://esapolitics.blogspot.com
http://esabirdsne.blogspot.com/
Said Peter...what you're requesting just isn't my bag
Said Daemon, who's sorry too, but y'see we didn't have no choice
And our hands they are many and we'd be of one voice
We've come all the way from Wigan to get up and state
Our case for survival before it's too late

Turn stone to bread, said Daemon Duncetan
Turn stone to bread right away...

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Re: The US Supreme Court

Post by Tero » Fri Jul 01, 2022 12:51 pm

The constitution is useable for writing laws as such. It does favor the states a lot of times. I think we cannot change elections much, for example.

But the court then goes and allows laws that are national, after throwing things like abortion (there are others, EPA type of issues) to states. This is very clearly inconsistent. They are clearly following some dogma of their own.

As far as the future, it is hard to think that founders had any particular plan for the country past 100 million people, and land coast to coast. I'm not even sure that the kind of empire we came, in the late colonial era, was anything they planned. By Jefferson, it was clear where we were going (expanding), but before that all the documents were pretty much set.

Jefferson was not that deeply involved. He sort of inherited the country and went with it. Things like Napoleon appeared.
https://esapolitics.blogspot.com
http://esabirdsne.blogspot.com/
Said Peter...what you're requesting just isn't my bag
Said Daemon, who's sorry too, but y'see we didn't have no choice
And our hands they are many and we'd be of one voice
We've come all the way from Wigan to get up and state
Our case for survival before it's too late

Turn stone to bread, said Daemon Duncetan
Turn stone to bread right away...

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Re: The US Supreme Court

Post by Svartalf » Fri Jul 01, 2022 1:30 pm

Tero wrote:
Fri Jul 01, 2022 10:36 am
Clarence Thomas suggests Covid vaccines are developed using cells of ‘aborted children’
https://www.politico.com/news/2022/06/3 ... n-00043483
If Thomas hadn't dissented in Kelo v new london, I'd be ranting about how better America would be today if his mother had aborted instead of having him.
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