Author Topic: Justice Antony Kennedy retiring  (Read 7745 times)

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #50 on: June 28, 2018, 09:48:58 AM »
What have "conservative" judges been able to do that is in any way comparable?  Where have they completely taken a political issues out of the legislative sphere without constitutional justification?  I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?

Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?

Well, interpreting the constitution is the purpose of the Supreme Court.

On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
  Regulation of abortion is a police power.  There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion.  They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.

DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.   




Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?

Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case.  I think their opinion of it would be pretty representative.  But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law.  It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution.  The political process is the only protection we have against a lot of bad things.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #51 on: June 28, 2018, 09:55:11 AM »
Does it surprise you that the Republicans (as a generalization) feel exactly the same way about the Democrats and the former president who led them?   Each team feels that they are the aggrieved party.  Just swap the words in your sentence.  And isn't that sad?  That everyday Americans now get angry with one another over this level of politics.  When in reality we probably agree on 80% of things.  The forces at work here (the political parties, the media, big corporations such as Facebook, even the Russians for heaven's sake) are playing us for the irrational humans that we are.  Everything is black and white with no room for compromise or for nuance.  Only the extremes are heard.   Some of it is no longer even intentional, but more like a natural resonant frequency that is building upon itself and making things worse and worse. 

I get what your saying and I appreciate it, but just because someone feels a particular way does not make it true.  Try looking objectively at the situation and see if it looks like one side is more or less open to compromise.  And then the problem becomes that if one side is only nominating moderate justices (because they inherently believe in the value of compromise) while the other is nominating only extremists then that affects the way that decisions fall.


Obama was president until January 2017 and he had the authority to appoint Supreme Court justices until then, and the seat he should have gotten appointed was stolen from him, plain and simple

In point of fact, he had the authority to nominate someone for the position.  The US Senate has the role of confirming that nominee.  My point was that his nominee wouldn't have been confirmed. 


Don't worry too much over this.  There is a long history of presidents nominating someone who turns out to vote entirely differently than they would have predicted.  And just a few short years ago, Donald Trump was a Democrat.  If he even knew what that was.  It's entirely likely that some shiny thing or loud noise will distract him right as he's naming the nominee and he'll mess it up anyway.

Even if we accept everything that your saying here, the precedent has now been set that neither party gets to appoint justices to the Supreme Court without controlling both the Presidency and the Senate.  I hope we're ready for some long stretches without a full Supreme Court, because I image Democrats will be highly disappointed in the their party if they don't hold to that precedent.  And I doubt that Trump will nominate a non-extreme candidate even if he is highly distractible, because the extreme right has already handed him their wish list of nominees to choose from.

You consider Gorsuch extreme?

Yes.


https://fivethirtyeight.com/features/which-justices-were-bffs-this-scotus-term/

That's all good and well for predicting results, but to rely on that to count what is extreme requires that you either assume that an originalist or textualist approach is extreme, or attribute the decisions of the legislative or administrative bodies to judges that apply them. 

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #52 on: June 28, 2018, 10:06:31 AM »
The nasty remarks were made by somebody acting in a judicial capacity, so that is very different, but regardless, that is working the same way as the approach to trump.  The Colorado Commission is not prohibited from penalizing the baker for refusing to make a wedding cake for same sex wedding.  They just can't show open hostility to christianity when they do so.  If they go through he trouble of putting the baker through the wringer again, and avoid making derogatory remarks on the record or showing any obvious hostility towards the baker's religion, the S. Ct. will not say "nope, you're tainted forever and cannot apply the law unless and until the makeup of your commission changes."  They'll rule on the merits of the baker's free expression claim.   

Okay, I can buy that reasoning I suppose.  I guess Trump is just able to push multiple attempts through the court system faster because he's president and so was able to get to it right sooner.  Although I'm not entirely sure that he's stopped his "nasty remarks" about Muslims, I don't recall seeing any recently.

How long ago were those videos posted to twitter?

Although I think the decision in Masterpiece v. Colorado had more to do with the bias being within the courts. Why the lower court's bias mattered is a technicality that I don't fully understand. It didn't change the actions of Masterpiece.

Two reasons.  Lower courts (or administrative agencies or commissions) often act as fact finding bodies, and when they make a fact finding, reviewing courts will not overturn it unless it is clearly wrong.  Having an overtly biased fact finder means they shouldn't get deference.  I'm not sure this was actually in play here because I'm not sure there were key undisputed facts.

Second, people are entitled to due process.  There are some failures of due process that reviewing courts will say was harmless, but generally, having due process is how people have confidence that the result was right.  So for egregious failures of due process (and not having at least the appearance of an unbiased fact finder/judge is egregious), they will be much more likely to kick it back down.

That said, the master piece cake case was a punt by the court.  They could have had a 5-4 ruling on the free expression claim, and kennedy would have been the swing vote one way or the other.  Roberts and Kagan are both very interested in the court as an institution, and you will see them work more than others to work towards consensus and to avoid 5-4 decisions, even if that means moving from their preferred position.  So as a compromise, they got a 7 vote majority on an issue they could agree on and punted on the probably more important and definitely more controversial question of whether things like making a custom cake or arranging flowers are a form of free expression such that they are protected from government mandated speech.  This was probably easy to get Kennedy on board with because he doesn't want to do anything that might undermine his opinions on gay marriage and/or the "politically unpopular minority" hook from Romer v. Evans, and Breyer was I assume happy to jump on the compromise because he couldn't be sure how Kennedy would vote if they forced his hand.   

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #53 on: June 28, 2018, 10:21:43 AM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

Dabnasty

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Re: Justice Antony Kennedy retiring
« Reply #54 on: June 28, 2018, 10:31:10 AM »
What have "conservative" judges been able to do that is in any way comparable?  Where have they completely taken a political issues out of the legislative sphere without constitutional justification?  I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?

Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?

Well, interpreting the constitution is the purpose of the Supreme Court.

On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
 

Regulation of abortion is a police power.  There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion.  They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.

DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.   




Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?

Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case.  I think their opinion of it would be pretty representative.  But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law.  It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution.  The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?

You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.

This is why I posed the question. You think it is not the purpose of the Supreme Court to get the "right" decision. I agree with that, I was just wondering if you thought in a case where the negative consequences would be so great that you would support the Supreme Court acting outside of their duties. I better understand your position now and I don't disagree but I also don't necessarily agree. Undecided I suppose.
« Last Edit: June 28, 2018, 10:33:34 AM by Dabnasty »

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #55 on: June 28, 2018, 10:34:55 AM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

Yep. Like states' rights, the term is only applied when needed. Citizens United is a good example (one guess as to who the majority was). Scalia was a favorite of the "originalist" cheerleaders but he went off course numerous times to further his personal agenda.

simonsez

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Re: Justice Antony Kennedy retiring
« Reply #56 on: June 28, 2018, 10:50:29 AM »
I do feel for those that are adversely affected by SCOTUS decisions regardless if they are liberal or conservative decisions in nature.  That said, I want decisions or processes that many do not care for to be exposed and possibly improved if the majority of citizens feel that way, which includes individual states taking more initiative instead of waiting for a federal ruling (I think states can do a lot with regard to abortion protections, gerrymandering, voter suppression, unions, etc.).

I think overall civic engagement (at all levels) is low.

Don't like the SCOTUS nomination process and powers of the Senate/President?  Let it be known, petition, write, and vote accordingly.
Don't like a conservative or liberal decision on something? Same process, get the word out for what you feel is right.

That's not to say that a decision can't be devastating for individuals, they can be.  I don't mean to undermine someone's perceived right going out the window and them "not liking that".  I think the potential of federally recognized gay marriages or Roe v Wade going away has unequal effects.  During "liberal times" a conservative* who would never marry a gay person or abort a fetus is not affected directly in their life.  The converse is not true in many instances.  Potential decisions like these, and there are plenty besides these two examples, that have an unequal impact on one side of the aisle should be carefully examined rather than just trying to make the majority political side in a situation win.  Slight tangent - I hate the bicameral political system.  Multiple parties with no majority would be my preferred setup.

*-I'm not saying conservatives can't be gay or that a conservative has never had an abortion or that all liberals are gay and/or have abortions.

TexasRunner

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Re: Justice Antony Kennedy retiring
« Reply #57 on: June 28, 2018, 10:58:26 AM »
...
Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?
...
Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?

This is a very good question that I had been thinking about for a few weeks now. 

Korematsu seems to have originally based his argument on the fifth amendment's Grand Jury clause, but then transferred to "nor be deprived of life, liberty, or property, without due process of law" for the 9th and SCOTUS appeals.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The question then becomes, is an executive order enough "Due Process" to deprive one of "life, liberty, or property" and specifically in this instance Liberty- for a time, and Property- for a time. 

The court tip-toed on the answer from what I can tell, that an Executive Order alone was not quite enough to deprive liberty and property, but when combined with the intent of congress in the Act of March 21, 1942, it gave just enough due process that violation of the order merited a crime.

Getting back to the constitution, it has specific wartime powers assigned to the president, and I have heard the argument that the balance of power intentionally and systematically shifts more to the executive once a War Act has been signed  (hence: Article I, Section 8, Clause 11 and Article II, Section 2).  I would say that in peace-time, the result would not have been the same (obviously) than in wartime.

Overall, I think I would have dissented as the order was solely based on race and there was no means of due process in an appeal, but I see how they came to their conclusion.  As far as legislating from the bench....  I'm not sure how that is a great example since they didn't do any re-write and had plenty of legal documents to observe.

On a sidenote:
Also, It would be great if SCOTUS reigned in the multiple illegal foreign wars that have not had a War Act signed for and been going on through multiple presidents of both parties....  That would be great.


Edit to add:
The travel ban majority explicitly stated against Korematsu v. United States and the Dicta now considers it no longer valid precedent for Law (subject to another case wherein that will be a holding matter to finalize things).  I say that is a pretty big win...?  Surprised that I didn't hear anything about that.
« Last Edit: June 28, 2018, 11:07:01 AM by TexasRunner »
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Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #58 on: June 28, 2018, 11:27:00 AM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach. 

Kris

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Re: Justice Antony Kennedy retiring
« Reply #59 on: June 28, 2018, 11:32:18 AM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.

The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)

The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
« Last Edit: June 28, 2018, 11:40:51 AM by Kris »
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shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #60 on: June 28, 2018, 11:38:43 AM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

I'm doing no such thing.  I'm asserting a right to equal treatment under the law, which I think is clearly provided by the text of the 14th amendment.  You're the one not taking an originalist or textualist approach in this case since your clearly ignoring the text of the 14th amendment.  I think in this case your being blinded by your assumption that I'm assuming a right to gay marriage when I'm not.
« Last Edit: June 28, 2018, 11:44:08 AM by shenlong55 »

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #61 on: June 28, 2018, 11:49:08 AM »
What have "conservative" judges been able to do that is in any way comparable?  Where have they completely taken a political issues out of the legislative sphere without constitutional justification?  I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?

Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?

Well, interpreting the constitution is the purpose of the Supreme Court.

On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
 

Regulation of abortion is a police power.  There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion.  They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.

DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.   




Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?

Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case.  I think their opinion of it would be pretty representative.  But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law.  It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution.  The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?
  Because it's a statute/regulation under the police power.  You'll have to explain what you are getting at.  I honestly have no clue what you would be arguing or why. 

You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
  Everyone can receive the legal benefits of marriage.  It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex.  Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom.  It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5. 

This is why I posed the question. You think it is not the purpose of the Supreme Court to get the "right" decision. I agree with that, I was just wondering if you thought in a case where the negative consequences would be so great that you would support the Supreme Court acting outside of their duties. I better understand your position now and I don't disagree but I also don't necessarily agree. Undecided I suppose.
  There have been several times where the S. Ct. got the wrong decision because they thought it would create a constitutional crisis to get the right one.  Some of the school segregation cases, courts basically punted because they weren't sure the political will was there to enforce their decision.  I think that approach is not obviously wrong, except that it can become an excuse of political cowardice in situations where the decision would be enforced, but it would be extremely divisive and controversial.   


bacchi

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Re: Justice Antony Kennedy retiring
« Reply #62 on: June 28, 2018, 11:55:01 AM »
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.

The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)

The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.

It's used as a shield. "This is an originalist decision. It's not conservative or liberal."

Scalia, who first mentioned originalism in a decision in the mid-90s, often abused the "I'm just an originalist!" defense. He felt that the equal protection clause didn't apply to women. Or gay people. Even if one could create arguments to make his ideology work ("The Reconstructors didn't intend for it to apply to women."), it shows the bankruptcy of the originalist theory.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #63 on: June 28, 2018, 12:02:41 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   

The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)
    The could definitely reasonably conclude taht, like the majority (I think, if nto close to it) of this country has. 

The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.
  If by problematic, you mean it doesn't always lead to the "best" results and sometimes leads to bad results, that's true.  But it's less problematic than having an unelected body of 5 people legislating from the bench.  If a democratic process doesn't give a good result, you cannot expect that you are going to get the "right" 5 people on the bench who will do better.  And continuing teh way the S. Ct. is appointed, progressives in particular shouldn't want that.  If the right was pushing for 5 policy makers the way people on the left want the court to act, you really could see progressives held back by republican/conservative politics on the bench.  Right now, at least you are getting people bound by some espoused principles and not judges saying the constitution is living and what it says changes. 

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #64 on: June 28, 2018, 12:07:21 PM »
Everyone can receive the legal benefits of marriage.  It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex.  Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom.  It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.

Yes, there is.  It's called the equal protection clause and the text of it clearly provides that the laws of the US government shall be applied equally to all citizens.  Why are you refusing to take an origninalist/textualist approach to this?

How about this...  Would it be legal for a government building to only have a men's restroom and prohibit women from using it?  I can't even give a good counterexample for your second point since it makes no damn sense.  Nobody under 5 has yet gotten a free k-12 education and everybody over 20 already got their free k-12 education (or were at least offered it).

Kris

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Re: Justice Antony Kennedy retiring
« Reply #65 on: June 28, 2018, 12:08:29 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?
Please note: Libertarian4321 did not vote for either Hillary or Trump. He voted for Gary Johnson, who was the Libertarian candidate.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #66 on: June 28, 2018, 12:21:23 PM »
People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.

The Constitution says absolutely nothing about marriage. One could reasonably conclude that any person ought to have that right, to marry the adult person of one's choosing. (See: Fourteenth Amendment.)

The term "originalist" is convenient, but it's also really problematic. It sure gets bandied about a lot as gospel, though.

It's used as a shield. "This is an originalist decision. It's not conservative or liberal."

Scalia, who first mentioned originalism in a decision in the mid-90s, often abused the "I'm just an originalist!" defense. He felt that the equal protection clause didn't apply to women. Or gay people. Even if one could create arguments to make his ideology work ("The Reconstructors didn't intend for it to apply to women."), it shows the bankruptcy of the originalist theory.

No, it shows the bankruptcy of lawmakers at the time. 

If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #67 on: June 28, 2018, 12:25:21 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?

No, if you are an originalist or textualist, you don't think your job as a judge is to set policy.  So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way.  If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote. 

Dabnasty

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Re: Justice Antony Kennedy retiring
« Reply #68 on: June 28, 2018, 12:29:32 PM »
What have "conservative" judges been able to do that is in any way comparable?  Where have they completely taken a political issues out of the legislative sphere without constitutional justification?  I'm not naive enough to think judges I agree with don't let their biases impact their judgment, but what significant legislative acts have they accomplished through the courts?

Oh barf dude. Why do conservatives always have to go and dry hump The Constitution?

Well, interpreting the constitution is the purpose of the Supreme Court.

On the other hand I disagree with Jrr85 that the Supreme Court acted as a super legislature in their gay marriage and abortion decisions. You're right that neither marriage nor abortion were mentioned in the constitution but they were not ruling on the constitutionality of allowing these things, they were ruling on the constitutionality of government decisions to deny them. The rulings stated that DOMA in the case of gay marriage and various state laws in the case of abortion were unconstitutional.
 

Regulation of abortion is a police power.  There are certainly cases where the bill of rights is applied to states to limit their exercise of police power, but there's just nothing in there about abortion or anything that can reasonably be applied to abortion.  They basically passed a federal law through judicial precedent that limited the ability to regulate abortions.

DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.   



Otherwise I think your explanation is fair. I do wonder though, how do those who want the supreme court to act strictly within their duties feel about the decision of Korematsu v US?

Funnily enough, the S. Ct. just trashed that decision in the majority opinion of the Hawaii case.  I think their opinion of it would be pretty representative.  But, that said, it's not the S. Ct.'s job to get the "right" decision, except so far as the right decision is dictated by the law.  It's entirely possible for them to follow their duties and that result in a bad or even horrible result, because there are lots of bad or even horrible things Congress and/or the president can do that are not prohibited by the constitution.  The political process is the only protection we have against a lot of bad things.
Why is regulation of abortion a police power? Are you making an assumption that a fetus is part of "the public"?
  Because it's a statute/regulation under the police power.  You'll have to explain what you are getting at.  I honestly have no clue what you would be arguing or why. 
You're operating under the assumption that no one has the constitutional right to an abortion, which they do not because it was not explicitly stated. But they do have the right to a private life and making their own decisions. in order for the state to infringe upon that constitutional right, it must be for the health and safety of the public. If a fetus is not a member of the public, police powers should not apply. you said:

Quote
there's just nothing in there about abortion or anything that can reasonably be applied to abortion

This is where you disagree with the Supreme court decision. There is nothing that can be reasonably applied. The Supreme court decided the 14th amendment can be reasonably applied. Why is this outside the scope of the Supreme court?

You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
  Everyone can receive the legal benefits of marriage.  It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex.  Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom.  It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5. 

Again, this conclusion requires an assumption. You must assume that the right of a gay man to marry a woman is equal to the right of a straight man to marry a woman. My assumption is that true equality would be the right to marry a person you want to marry. If everyone had the right to wear a yarmulke but not an hijab, would that be equal? After all, they have the same right to wear the same thing.
« Last Edit: June 28, 2018, 12:35:04 PM by Dabnasty »

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #69 on: June 28, 2018, 12:39:25 PM »
If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.

It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.


Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, ďThis effectively decrees the end of all morals legislation." Ha. So much originalism.
« Last Edit: June 28, 2018, 12:43:05 PM by bacchi »

Kris

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Re: Justice Antony Kennedy retiring
« Reply #70 on: June 28, 2018, 12:40:25 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?

No, if you are an originalist or textualist, you don't think your job as a judge is to set policy.  So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way.  If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.

So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?
Please note: Libertarian4321 did not vote for either Hillary or Trump. He voted for Gary Johnson, who was the Libertarian candidate.

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #71 on: June 28, 2018, 12:45:40 PM »
You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
  Everyone can receive the legal benefits of marriage.  It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex.  Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom.  It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5. 

Again, this conclusion requires an assumption. You must assume that the right of a gay man to marry a woman is equal to the right of a straight man to marry a woman. My assumption is that true equality would be the right to marry a person you want to marry. If everyone had the right to wear a yarmulke but not an hijab, would that be equal? After all, they have the same right to wear the same thing.

If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.

It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.


Sorry Jrr85, ignore my last post.  This is more what I should have said I think.  Your making just as many assumptions in your interpretation of the 14th amendment as anyone else, you just don't seem to see it.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #72 on: June 28, 2018, 12:49:01 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?

No, if you are an originalist or textualist, you don't think your job as a judge is to set policy.  So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way.  If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.

So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?

Originalist is generally shorthand for someone who tries to adhere to the original intent.  So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment.  There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was.  It's splitting hair in most cases but does make a difference in others. 

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #73 on: June 28, 2018, 01:13:13 PM »
If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.

It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
  Why is that amusing?  Originalism is not a claim that every question has an easy and clear answer.  And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument. 



Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, ďThis effectively decrees the end of all morals legislation." Ha. So much originalism.

Why do you think that's inconsistent with originalism? 

Kris

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Re: Justice Antony Kennedy retiring
« Reply #74 on: June 28, 2018, 01:47:53 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?

No, if you are an originalist or textualist, you don't think your job as a judge is to set policy.  So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way.  If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.

So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?

Originalist is generally shorthand for someone who tries to adhere to the original intent.  So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment.  There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was.  It's splitting hair in most cases but does make a difference in others.

The thing is, the document itself has changed so much over the years with added amendments (the last being in 1992) that to me it seems fairly ridiculous to call this "original." The authors of the constitution -- the "original originalists," if you'd like -- would never have agreed with women having the vote. And yet, there it is, in an amendment. The Constitution has changed, evolved -- lived -- with the changing times. I find it quite odd when people have such a problem with the idea of the Constitution being reinterpreted in light of the present moment -- you know, when people of color are 5/5 of a human instead of 3/5, for example. And when we actually think that homosexuals are human beings with rights. And that women should be able to own property.

Please note: Libertarian4321 did not vote for either Hillary or Trump. He voted for Gary Johnson, who was the Libertarian candidate.

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #75 on: June 28, 2018, 01:54:28 PM »
If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.

It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
 

Why is that amusing?  Originalism is not a claim that every question has an easy and clear answer.  And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument. 

Because the entire "originalist" defense of a judicial decision is based on an unassailable argument. It's not a conservative or liberal decision. It's originalist!

So when the liberal side of the court disagrees with the conservative side of the court, and both sides use originalism and textualism to support their opinions, it's amusing. Obviously not both sides are correct -- the original authors would've agreed with only one or the other.


Quote

Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, ďThis effectively decrees the end of all morals legislation." Ha. So much originalism.

Why do you think that's inconsistent with originalism?

Look at the decision and his opinion. He was on the side that wanted to continue morality legislation (and continue a ban on homosexual anal sex).

Read what he wrote. He decides that homosexual sex is not a "fundamental liberty" because of Bowers (not because of an originalist argument).

Now compare that to Loving, which used the same logic to deny inter-racial marriages. That was struck down, per Scalia, because "we  correctly  applied  heightened  scrutiny" to the law. Ah, but it doesn't work for Lawrence v Texas because the law's applicability is "readily  satisfied  here  by  the  same  rational  basis  that satisfied it in Bowers--society's belief that certain forms of sexual behavior are immoral and unacceptable."

The more relevant question is, what about his dissenting opinion was consistent with originalism? He doesn't mention the Framers at all in his dissent, nor is sodomy mentioned in the Constitution. Sex isn't deemed a "fundamental liberty" in the Constitution at all. Instead, he relies on "society's belief."*

Yep, truly an originalist.



* And he was wrong about that, too. Society's belief changed by 2003 and he didn't notice or didn't care because of the "homosexual agenda."**
** Yes, he really wrote that in his dissent.

« Last Edit: June 28, 2018, 02:13:16 PM by bacchi »

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #76 on: June 28, 2018, 02:16:37 PM »
You say it wasn't some hidden right to gay-marriage but the point is that there doesn't need to be. If anyone has a right to marriage then so do gay people. There is also nothing in the constitution that suggests the original form of legal marriage was only between a man and a woman. Either everyone can receive the legal benefits of marriage or no one can.
  Everyone can receive the legal benefits of marriage.  It's just that there is no constitutional requirement that states define marriage to be between indeterminate sex.  Just like it's not a violation of the equal protection law for a government building to have a men and women's restroom and to actually enforce that only men go into the mens' restroom and only women go into the women's restroom.  It's not a violation of equal protection to provide free k-12 elementary to people between the against of 5 and 20, but not to provide free k-12 education to people over 20 and under 5.

Okay, I just want to more clearly state my problem with textualism now that I understand it a bit better.

According to Wikipedia...

Quote
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.[1]

The problem comes in with the words "ordinary meaning".  Whose definition of equal here falls under the "ordinary meaning"?  We obviously disagree about the meaning of equal treatment under the law.  You think it means that if a homosexual male is legally allowed to enter into a marriage agreement with a female then that is equal to a heterosexual male being legally allowed to enter into a marriage agreement with a female.  I think that it means that if a heterosexual male is legally allowed to enter into a marriage agreement with their significant other then it is equal to a homosexual male being legally allowed to enter into a marriage agreement with their significant other.  Why do you think that your meaning is more "ordinary" than mine?  Because I'm pretty sure my meaning is actually more ordinary than yours.  Either way, they're both interpretations and you calling your interpretation "textualist" doesn't make it better than mine just because you decided to apply that label to it.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #77 on: June 28, 2018, 02:21:07 PM »
DOMA was the same thing.  There wasn't some hidden right to same-sex marriage that nobody discovered for 200 years.  I am glad same-sex is legal, but it shouldn't have been done through the courts.  At the least, they should have done as much as possible through a freedom of contract argument.  Not sure that would have been much better, but that's a lot better precedent than just making up a right to dignity.  I certainly think people have a right to dignity, and that it's ridiculous that a government can dictate what medicine people are allowed to take or drugs they are allowed to take, but the way to fix that is through the legislative process, because just having a 5 person super legislative body runs too much risk of getting things wrong and/or undermining support of our government and legal institutions.

How does the equal protection clause not require that the government equally apply their marriage laws to all citizens?

See, this is the problem with your whole "originalist/textualist" label.  To me, the text of the 14th amendment obviously requires that all laws be applied to all citizens equally.  For some reason you seem to disagree.  Which of us is the textualist in this case?  Most people on my side would probably think it's me and those on your side will probably think it's you.  Personally, I think we're both just interpreting the text.  Maybe with some biases, maybe not, but I know that I at least attempt to look beyond my biases.  I'm not sure if you do or not because you don't seem to think you're biased, you seem to think your just being an "originalist/textualist".

You are not basing it on an originalist or textualist approach though.  You are assuming there is a right to same-sex marriage, which there has not ever been prior to Oberfell.  There are definitely close cases where you can't just say "this judge was right; this one was wrong".  That's not one of them. 

Certainly there are going to be times where everyone is blind to their biases, but I think it's less likely that I'm suffering from bias in a decision where I like the result but nonetheless recognize it's not based in law compared to people who like the result and believe it's based in law, unless by bias you mean a tendency towards a particular interpretive approach.

People were assuming women had the right to vote, which there had never been prior to the 19th Amendment.
    Umm....No, no they weren't.  That's why women everywhere didn't get the right to vote.  Even when the 14th amendment passed, they didn't get the right to vote.  The 14th amendment is not an "Everything good is now legal or mandated" amendment.  Even though it is obviously horrible that women weren't allowed to vote and that it is a good thing women are allowed to vote, the 14th amendment didn't give it to them.   



No, see, that was my point (perhaps poorly worded).

If you are an originalist, then are you saying that you don't think women should have the right to vote?

Because, what is the "originalist" stance on that?

No, if you are an originalist or textualist, you don't think your job as a judge is to set policy.  So if you are an originalist in 1890, you say the 14th amendment doesn't grant women the right to vote, if you are a textualist, it could probably go either way.  If you are an originalist or textualist after 1920, you say women have the right to vote, even if you are huge misogynist and think it's the worst idea ever to let women vote.

So, what about if you are an originalist in 2018? Because the word "originalist" doesn't seem to have any meaning at all in that context. Textualist, maybe. But what is the "original" document?

Originalist is generally shorthand for someone who tries to adhere to the original intent.  So whether you are a textualist or an originalist, the document you are looking at when considering whether women have a constitutional right to vote is the constitution, and in particular the 19th amendment.  There are different flavors of originalism, with some people saying it's just textualism, with emphasis on what the text would have meant to the people voting and/or writing it, while others might claim their version of originalism allows context outside of the four corners of the document to determine what the intent was.  It's splitting hair in most cases but does make a difference in others.

The thing is, the document itself has changed so much over the years with added amendments (the last being in 1992) that to me it seems fairly ridiculous to call this "original." The authors of the constitution -- the "original originalists," if you'd like -- would never have agreed with women having the vote. And yet, there it is, in an amendment. The Constitution has changed, evolved -- lived -- with the changing times. I find it quite odd when people have such a problem with the idea of the Constitution being reinterpreted in light of the present moment -- you know, when people of color are 5/5 of a human instead of 3/5, for example. And when we actually think that homosexuals are human beings with rights. And that women should be able to own property.

You're not understanding what originalism is.  It is not that the constitution cannot be amended or that the only thing that matters is the original version of the constitution before any of the amendments were ratified.  The originalist/textualist position is that we are a constitutional republic, and if we want the constitution to change, it should be changed pursuant to the mechanism provided for changing the constitution, not because 5 people decide that it would be better if it was changed.  The "living constitution" theory originalist object to is the idea that as society changes and their view on policy changes, the original intent can provide results that would be contrary to the policy preferences of the nation and judges should step in and stop that from happening. 


DarkandStormy

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Re: Justice Antony Kennedy retiring
« Reply #78 on: June 28, 2018, 02:30:07 PM »
The "swing vote" has gone from O'Connor to Kennedy to (presumably) Roberts.  If Republicans hadn't abdicated their Constitutional responsibility the swing vote would be Kagan/Breyer/Garland (one of those three).  It's really amazing the heist McConnell pulled without facing any consequences.
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CindyBS

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Re: Justice Antony Kennedy retiring
« Reply #79 on: June 28, 2018, 03:06:51 PM »
STOP.  Just STOP.  This is not dystopia.  This is not hopeless. 

My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.

People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.  I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application. 

A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions. 

To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market.  None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.   

Sounds pretty freakin' scary and dystopian to me. 

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #80 on: June 28, 2018, 03:24:09 PM »
If you think Scalia  or Gorsuch or Thomas or whoever is so terrible, do you really want them ruling unbound by any principles other than what they think is good policy?

Ah, this is the fundamental disagreement. The left doesn't think that (most of) Scalia's or Thomas' decisions are bound by some unassailable principle. Or, to put it another way, their personal biases are all over their decisions.

It's also amusing when both the majority and dissent opinions argue from an originalist/textual standpoint. Which originalist is correct? DC v Heller comes to mind.
 

Why is that amusing?  Originalism is not a claim that every question has an easy and clear answer.  And that's one where different shades of textualism versus originalism matter, as the textualism argument is more clear cut than the originalist argument. 

Because the entire "originalist" defense of a judicial decision is based on an unassailable argument. It's not a conservative or liberal decision. It's originalist!

So when the liberal side of the court disagrees with the conservative side of the court, and both sides use originalism and textualism to support their opinions, it's amusing. Obviously not both sides are correct -- the original authors would've agreed with only one or the other.
  It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.  you can't make an originalist argument of why states must allow same sex marriage.   


Quote

Eta: Scalia, the uber-originalist, wrote in a dissenting opinion in Lawrence v Texas, ďThis effectively decrees the end of all morals legislation." Ha. So much originalism.

Why do you think that's inconsistent with originalism?

Look at the decision and his opinion. He was on the side that wanted to continue morality legislation (and continue a ban on homosexual anal sex).

Read what he wrote. He decides that homosexual sex is not a "fundamental liberty" because of Bowers (not because of an originalist argument).

Now compare that to Loving, which used the same logic to deny inter-racial marriages. That was struck down, per Scalia, because "we  correctly  applied  heightened  scrutiny" to the law. Ah, but it doesn't work for Lawrence v Texas because the law's applicability is "readily  satisfied  here  by  the  same  rational  basis  that satisfied it in Bowers--society's belief that certain forms of sexual behavior are immoral and unacceptable."

The more relevant question is, what about his dissenting opinion was consistent with originalism? He doesn't mention the Framers at all in his dissent, nor is sodomy mentioned in the Constitution. Sex isn't deemed a "fundamental liberty" in the Constitution at all. Instead, he relies on "society's belief."*

Yep, truly an originalist.

* And he was wrong about that, too. Society's belief changed by 2003 and he didn't notice or didn't care because of the "homosexual agenda."**
** Yes, he really wrote that in his dissent.

You are mixing up a lot of issues.  You have to understand some of the precedent he was applying, and then it still leaves you with an issue that could fill (and has filled) multiple law journal articles. 

But generally (and extremely abbreviated), the discussion of whether sodomy was a fundamental right occurs b/c he was applying precedent for substantive due process.  For substantive due process claims, if you are dealing with a fundamental right, you apply strict scrutiny (which means the government violates substantive due process unless there is a compelling gov't interest and the law/regulation/act in question is narrowly tailored and no more burdensome than necessary; gov'ts almost always lose these claims, but there are still plenty of claims that the gov't can and does defeat).  If it's not a fundamental right, then you apply rational basis, which is any rational basis you can come up with, the gov't wins (and the gov't wins these almost always, rational doesn't mean good or even justifiable; it just means if there is a rational basis the gov't could have had, even if it's an awful one, it's still permissible).  So that is why he made the argument that sodomy isn't a fundamental right and why he talked about society's views (whether they have a longstanding history is part of what courts look at to determine if a right is fundamental).  Note that the majority agreed with him on this and claimed to apply rational basis. 

The reference to Loving v. Virginia is applying precedent under the equal protection clause.  Under the equal protection, it's the class that determines what level of scrutiny to apply.  Race is a suspect class, because that was basically the entire point of the equal protection clause.  So anything differentiating on race gets strict scrutiny.  The reason this is brought up is that O'Conner (but not any of the other judges) was arguing that this should be an equal protection claim like Loving v. Virginia, but homosexuality is not a suspect class under the equal protection clause, so it would still be rational review.

And applying the rational basis test is why he made the comments about morals legislation.  Morality had always satisfied the rational basis test. 

So all three of those areas of precedent together explain why he made the comment about homosexual agenda.  The court was ignoring prior precedent and seemed to be making it up as they went along, which to living constitutionalist is no problem, but to originalist is a bad way to approach it (One of scalia's saying is that he wished he could replace some opinions with just a stamp that said "Stupid, but constitutional".).  And while "homosexual agenda" sounds goofy, he was correct in that basically the majority had decided that notwithstanding prior precedent, they wanted a different policy towards homosexuality and same-sex marriage in the U.S.   

Of course that does raise the question of what place, if any, stare decisis plays in originalist theory.  In this case, he was mostly trying to at least hold other justices to the standard they claimed to be following, but Scalia relied on a lot of precedent in his decisions also that if not contradictory with originalism, were not necessarily supported by it (such as all the different tests for when to apply heightened standards of review and what those standards are).  You could literally write a book on it, and I assume people have.  I know there have been plenty of law review articles on it.   

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #81 on: June 28, 2018, 03:38:23 PM »
STOP.  Just STOP.  This is not dystopia.  This is not hopeless. 

My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.

People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.

I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application. 

A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions. 

To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market.  None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.   

Sounds pretty freakin' scary and dystopian to me.
 

If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen?  I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia.  In most places, businesses will risk going out of business if they openly discriminate against homosexuals.

With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes.  I don't think there's going to be any political interest in changing this. 

THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam).  So it's not likely to get worse at least. 

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #82 on: June 28, 2018, 04:27:51 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?


« Last Edit: June 28, 2018, 04:51:20 PM by bacchi »

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #83 on: June 28, 2018, 05:19:02 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Kris

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Re: Justice Antony Kennedy retiring
« Reply #84 on: June 28, 2018, 05:21:39 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
Please note: Libertarian4321 did not vote for either Hillary or Trump. He voted for Gary Johnson, who was the Libertarian candidate.

TempusFugit

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Re: Justice Antony Kennedy retiring
« Reply #85 on: June 28, 2018, 05:25:03 PM »
"I have known a great many troubles in my life, but most of them never happened." - Mark Twain*

* ok probably someone else

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #86 on: June 28, 2018, 05:29:24 PM »
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.

Exactly when is an originalist an originalist?

accolay

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Re: Justice Antony Kennedy retiring
« Reply #87 on: June 28, 2018, 05:31:37 PM »
If Democrats had won the election, it would not have been a slight liberal tilt.  It would have been a huge liberal tilt.  No more 1st amendment applied to political speech.  No more individual right to own guns.  General police powers for the federal government rather than the tiny bit of limitation on the commerce clause that currently remains.  If another sotamayer were appointed and confirmed, the balance would have been two judges that approach first from a partisan perspective, then RBG who is partisan on some things, then Breyer and Kagan who will apply the text but are willing to bend for certain key issues.

So when you see people flipping out about having another liberal pick on the court, when they are acting hysterical, it is because they want the court to act as super legislators in their favor and they know they won't get that again for a while.
Fixed it for you.

I rest my case.

1. When you say "no more 1st amendment applied to political speech" What you're really talking about is money = political speech? Citizens United?
2. Even a big swing left probably wouldn't get rid of all guns. Unsure why there aren't more of The Right advocating to at least not let violent offenders, domestic abusers, those with mental health problems etc. have guns, incorporate actual background checks, and firearm training courses.
3. Unsure what problem the Right has with getting rid of gerrymandering... oh wait, it's because they're fine with stacking the odds in their favor.
4. Don't know why The Right wants to limit voting rights for American citizens... oh wait, it's because they're removing those rights from the poor and not white.
5. Why does The Right want to get rid of a woman's right to choose? Oh yeah, it's because they're women.
6. Equal LGBTQ rights? Not your problem because you're not gay.

So as long as the future of America is ok for the straight white monied male, the court is working just fine. Amirite?

Kris

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Re: Justice Antony Kennedy retiring
« Reply #88 on: June 28, 2018, 05:47:21 PM »
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.
Exactly when is an originalist an originalist?

Good question. But I am just pointing out -- rightly, I think -- that anything that wasn't present "from the beginning" is not "original."
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dividendman

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Re: Justice Antony Kennedy retiring
« Reply #89 on: June 28, 2018, 06:13:38 PM »
The problem with both the left and right picks on the supreme court is they both allow the federal government more authority than the enumerated powers when their particular belief is on the line.

If it's gay marriage - guess what, the federal government has no power to legislate on marriage at all! Gay marriage, straight marriage - the feds have nothing to do with it. Any federal law on marriage, whether it be to say gay marriage is illegal or to say that everyone who bangs must get married, or that marriage can only happen by people over 14, is unconstitutional!

The federal government should have ZERO laws on education. Where in the constitution does it give the feds power to make any laws on education? But nope, when the righties are in office/courts, they make federal education laws that are right wing and when the lefties are in there they make lefty ones. Most of it is through the mutilation of the commerce clause. Commerce clause was meant to say "yo states, we'll help if you fucks decide to start boycotting each others' shit or putting up trade barrier between states".

The 10th amendment clearly says most powers should reside with the states, or with the people! Below is a list of enumerated powers of the federal government that is further restricted by the bill of rights - why does it do all this other shit to begin with???

The supreme court should be nixing laws left and right that the federal government somehow deems is in its authority. But they don't. They only do that (say it's a state issue) when it's not their belief. It's horrible and now that we have a fucking pyscho in the white house it's even worse.


Enumerated powers:

Quote
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
« Last Edit: June 28, 2018, 06:16:09 PM by dividendman »

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #90 on: June 28, 2018, 06:22:11 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Yeah, pretty sure no one has made that argument anyway.  I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement.  And that interpretation is entirely based off of the original text of the 14th amendment.  If you think otherwise could you explain it please, because I still don't seem to understand your argument here.

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« Last Edit: June 28, 2018, 06:28:32 PM by shenlong55 »

dividendman

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Re: Justice Antony Kennedy retiring
« Reply #91 on: June 28, 2018, 06:26:56 PM »
All of that being said I think the way federal judges are selected is too partisan and below is my proposal to rectify that.

1) Members in good standing of the bar associations nominate (by vote), and the senate confirms, federal district court judges from the bar of that district
2) the federal district court judges select, by vote, judges within their circuit when there is a circuit court opening
3) supreme court justices are selected in a similar manner as 2) by the circuit court judges

Judges could be impeached by the current method.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #92 on: June 28, 2018, 08:25:55 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Yeah, pretty sure no one has made that argument anyway.  I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement.  And that interpretation is entirely based off of the original text of the 14th amendment.  If you think otherwise could you explain it please, because I still don't seem to understand your argument here.

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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person.  So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #93 on: June 28, 2018, 09:45:31 PM »
You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

Yet there are some. Or are some originalists not originalists?

Is this a "not a true scotsman" issue?

Chris22

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Re: Justice Antony Kennedy retiring
« Reply #94 on: June 28, 2018, 09:57:30 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Well, given that the actual definition of "original" is "from the beginning," most originalist arguments that take into consideration the Amendments to the Constitution are incorrect.

No. Thatís stupid. The originalist idea is that the original Constitution has a provision to change the Constitution, and if you want to change it you go through that process.  Originalists donít think the founding fathers completely infallible and the document final, they think that the FF gave us a mechanism to update the Constitution if desired and thatís the mechanism you need to use if you want to make a change. Canít muster up the votes to make a Constitutional change?  Then you canít go around trying to reinterpret the Constitution to say something it doesnít. Change it or abide by it.
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Michael in ABQ

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Re: Justice Antony Kennedy retiring
« Reply #95 on: June 28, 2018, 10:46:35 PM »
I guess I'll be the outlier and chime in that I will be quite happy if another person like Neil Gorsuch is appointed. I wasn't thrilled with the recent sales tax ruling but I'm quite happy with all the other important decisions in the last week or so.

You enjoy watching unions getting decimated and partisan gerrymandering continuing to control our elections?

Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.

I wasn't thinking about the gerrmyandering cases so I guess I'll amend my previous comments. I didn't read those opinions as I did with some of the other recent ones so I'm not sure what the legal justitifcation was. I think gerrymandering is bad overall. The fact that incumbent legislators get re-elected something lik 80-90% of the time is a serious part of the problem with our government. It invites and breeds corruption.
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Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #96 on: June 28, 2018, 11:29:24 PM »
You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

Yet there are some. Or are some originalists not originalists?

Is this a "not a true scotsman" issue?

Not at all.  If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'.   You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.

Norioch

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Re: Justice Antony Kennedy retiring
« Reply #97 on: June 28, 2018, 11:34:33 PM »
Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.

Unions provide enormous value, but they provide it to all members of the profession they represent, not just union members, and there's no way around that. So the obvious rational thing to do is to leave the union and just keep enjoying the benefits provided by the union anyway, which makes it impossible for unions to actually continue operating, which was the point of the case all along. Free rider problem, something conservatives refuse to acknowledge exists.

egillespie

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Re: Justice Antony Kennedy retiring
« Reply #98 on: June 29, 2018, 02:07:18 AM »
Yes to the first. If you want to be part of a union then go ahead and join one. If they are providing value for the cost of that service they should fluorish. If they are not then they should wither away. I don't think you should be forced to pay a fee just for the privelege of taking a job.

Unions provide enormous value, but they provide it to all members of the profession they represent, not just union members, and there's no way around that. So the obvious rational thing to do is to leave the union and just keep enjoying the benefits provided by the union anyway, which makes it impossible for unions to actually continue operating, which was the point of the case all along. Free rider problem, something conservatives refuse to acknowledge exists.

Unions certainly can provide benefits and have throughout their history done a lot for many working people, but they've done a lot of damage as well, to themselves and others.   The typical American style labor union is nothing like the style that exists in western Europe or the Nordic regions, and for that Americans have a lot of potential improvements.

Your argument is biased. Read any writings by Janus himself, or the opinion of the majority of the court. 

Is being a free rider a problem?   Yes.   So is forcing people to fund private institutions as a condition of employment. 

I'm a pro-union person, but where I work my union is a corrupt institutional failure.   Any criticism directed at them they see as an attack and dig their fingers in even deeper to their dysfunctional ways.  Their politics are toxic and I assume they are involved in corrupt activity.  Their ability to collectively bargain effectively or represent most members is long gone.   I want nothing to do with them, this ruling gives me that option.

I believe unions would be much more successful if they weren't so tone deaf.   Much of their decline is based on their own failures, but that argument doesn't fit their agenda.

In my view Janus wasn't about destroying unions.  I'm sure he was funded by those that have that ideology, but for the love of God, if unions want to thrive many of them need to change their ways. 

Blaming others for their failures, the paranoia that exists within many labor unions...so toxic and dysfunctional. 
« Last Edit: June 29, 2018, 02:10:10 AM by egillespie »

CindyBS

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Re: Justice Antony Kennedy retiring
« Reply #99 on: June 29, 2018, 07:41:46 AM »
STOP.  Just STOP.  This is not dystopia.  This is not hopeless. 

My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.

People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.

I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application. 

A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions. 

To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market.  None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.   

Sounds pretty freakin' scary and dystopian to me.
 

If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen?  I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia.  In most places, businesses will risk going out of business if they openly discriminate against homosexuals.

With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes.  I don't think there's going to be any political interest in changing this. 

THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam).  So it's not likely to get worse at least.


Except with the baker case just being decided, there is a judicial precedent for all the people who want to discriminate out there.  All the congress needs to do is pass a law that says "religious Liberty" trumps discrimination law and then a conservative court upholds it.

You sound very much like the old, white, christian, straight, conservative man I was talking to after Trump was elected.  I was very worried about repeal and replace for the ACA and losing all the protections in terms of pre-existing conditions at lifetime limits.  It was when my son was having about a $1Million a year in medical expenses (he had cancer and bone marrow transplant).   The man said acted like I was being hysterical and then said "they won't take those away".   When I challenged him, he replied "they would never do that to people". 

Sure enough, the last version of repeal (no replace in sight) had a provision that left it up to states to make enforcement of the pre-existing conditions protections optional.  Basically taking that protection away for everyone in a red state. 

I don't trust the Republicans not to throw people like my son under the bus the second it is politically convenient.  Stripping rights away from LGBT is the perfect dog whistle to a certain base of people.  We already have a president who thinks nothing of mocking people with disabilities or banning certain LGBT people from the military.

The idea that people like my son don't need their rights inshrined in law, that conservatives actually care about them, (remember Mike Pence - uber Christian anti-gay guy is only 1 fast food induced heart attack away from the presidency) or that just because it is ok now it always will be is naive.