Author Topic: Trump outrage of the day  (Read 449297 times)

Travis

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Re: Trump outrage of the day
« Reply #5100 on: October 29, 2020, 09:47:45 PM »
The Tucker story is getting more comical.

After receiving a lot of criticism for mailing the hard copies of "proof" to LA, he admitted later Wed. night that they did have copies.

After people asked why they mailed paper, instead of email or sftp or VPN cloud, he now claims that they scanned it, put it on a flash drive, and then mailed the flash drive. That's what was lost -- not "those documents" but a flash drive sent via UPS.

No explanation of what's on the "lost" flash drive yet. They must still be working on that part of the serial.

The year 2000 says hello.

nereo

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Re: Trump outrage of the day
« Reply #5101 on: October 30, 2020, 05:15:12 AM »
As we're nearing the date of the presidential election...

Technically, the election will go on until at *least* December 14th.  And Congress won't certify it until January 6th. 

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Re: Trump outrage of the day
« Reply #5102 on: October 30, 2020, 05:39:52 AM »
On Monday Trump said "vaccines are coming momentarily" a flagrant falsehood  for the reason that "momentarily" means imminently, very soon , in the next few minutes, etc.


GuitarStv

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Re: Trump outrage of the day
« Reply #5103 on: October 30, 2020, 05:50:44 AM »
As we're nearing the date of the presidential election...

Technically, the election will go on until at *least* December 14th.  And Congress won't certify it until January 6th.

It's going to take a while for the Supreme Court to decide which legal and valid ballots cast for Democrats to throw out . . .

nereo

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Re: Trump outrage of the day
« Reply #5104 on: October 30, 2020, 06:29:22 AM »
As we're nearing the date of the presidential election...

Technically, the election will go on until at *least* December 14th.  And Congress won't certify it until January 6th.

It's going to take a while for the Supreme Court to decide which legal and valid ballots cast for Democrats to throw out . . .

That's a possibility, but not what I was getting at.  In most elections, SCOTUS has declined to intervene with ballot counting/validation (though see Bush v Gore).
The electors don't meet until December 14th, which is technically when the victor is decided.

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Re: Trump outrage of the day
« Reply #5105 on: October 30, 2020, 07:32:24 AM »
On Monday Trump said "vaccines are coming momentarily" a flagrant falsehood  for the reason that "momentarily" means imminently, very soon , in the next few minutes, etc.

Along with his healthcare alternative to the ACA?

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Re: Trump outrage of the day
« Reply #5106 on: October 30, 2020, 08:10:05 AM »
Another attempt to pack the Supreme Court would be exceedingly controversial. Much worse, if successful it would vitiate the principle of stare decisis  that provides stability, predictability, and reliance on the great body of  fundamental  law   that constitutes  America's  jurisprudential foundation.


"An interpretation [of the fundamental law] to be changed with each change of administration" would eliminate  the rule of law.


In 1937 the Senate Judiciary Committee issued its Adverse Report that resoundingly rejected FDR's Judicial Reorganization Plan also known as his "Court-packing scheme."

This is a bit confusing of an argument to hear from you.  You've repeatedly argued that the political affiliation of conservative Supreme Court justices is unimportant because they'll all preside over cases fairly according to various legal concepts.

It would seem to follow that legally adding liberal leaning Supreme Court justices should result in no additional unfairness.  Since stare decisis exists for expanding (and shrinking) the size of the court there's no valid argument against based upon that.  Your main objection then appears rooted in the assumption that more liberal justices will not be as fair in their judgements as the conservative ones you have been assuring us will be.

Surely, you see how this argument (coming as it does from a self-professed staunch conservative) is rather lacking?

I give the greatest  weight to  the constitutional erudition  and considered opinions of the senators who drafted the Adverse Report. I cannot be persuaded that its conclusions are wrong or cautioning overstated.


The threat  to pack the Court is fueled by a  zealous  desire for a change on the high bench that will result in the overturn of precedents such as Citizen's United.

This threat is  antithetical to constitutional constancy for the Constitution is only as enduring as the fixity of its guarantees, the durability of its precedents.

Seems rather disingenuous.

The constitution isn't at question here in any way.  The constitution does not elaborate the exact powers and prerogatives of the Supreme Court or the organization of the Judicial Branch as a whole.  As in the past, changing the number of Supreme Court justices would therefore not change 'constitutional constancy'.  This is an illogical argument.

I knew   that "constitutional constancy" is not relevant to  the number of justices on the Court because as you correctly posted,  the Constitution is silent as to their number.


You dismissed out of hand many concerns that the current packing of the court with conservative justices would impact abortion rights predominantly by arguing that conservative justices would use stare decisis to preserve decisions previously made. 

Whether predominantly liberal or conservative I do not think of any  Court of nine justices as a packed Court.


Why do you believe that the same would not be used by liberal leaning judges to protect the Citizens United decision that you are so attached to?
Fundamentally, your argument remains unchanged - that liberal judges are less trustworthy than conservative ones.  This is evidence of strong personal bias.

One of the reasons is that Roe has been reaffirmed "many times"  while Citizens United has not and is consistently opposed by the Court's liberal bloc.

"I will tell you what my view now is:[Roe] is an important precedent of the Supreme Court that has been reaffirmed many times." I think Kavanaugh said this during his confirmation hearing.

Another reason is that the Court's conservative bloc has  consistently upheld the First Amendment's right of free speech.




In 2018, on Thanksgiving eve,  C.J. Roberts declared  "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Roberts deserves a scolding (I was of a mind to send him an admonitory  missive)  for insulting the  public's intelligence in general and  Court watchers' in particular for each  knows the Court has a liberal bloc and a conservative bloc and that Roberts himself is  the swing vote  who joins in the opinions of either.


"The primary means to petition the Court for review is to ask it to grant a writ of certiorari. This is a request that the Supreme Court order a lower court to send up the record of the case for review."


"The Court will only issue a writ if four of the nine Justices vote to do so. Justices usually take the importance of a given case and the need to issue a final decision before deciding to grant certiorari. If four Justices do not agree to grant certiorari, the petition is denied."

The justices do have their  predilections, liberal or conservative,   which   are an ingredient in the mix of considerations each of four justices weigh  when deciding to grant  certiorari or not.

I think it is fair to say that a Court packed with justices inclined to align themselves with the liberal bloc is at least a  Court that may tilt in favor of granting certiorari  in cases favorable to liberal causes and denying it in cases favorable to conservative causes.




« Last Edit: October 30, 2020, 08:21:23 AM by John Galt incarnate! »

GuitarStv

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Re: Trump outrage of the day
« Reply #5107 on: October 30, 2020, 08:30:27 AM »
One of the reasons is that Roe has been reaffirmed "many times"  while Citizens United has not and is consistently opposed by the Court's liberal bloc.

"I will tell you what my view now is:[Roe] is an important precedent of the Supreme Court that has been reaffirmed many times." I think Kavanaugh said this during his confirmation hearing.

Still seems rather disingenuous.  In 2003 Kaveneaugh wrote:

"I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so."

- https://int.nyt.com/data/documenthelper/269-kavanaugh-email-re-whether-roe/e6dbbda94dd204fe02af/optimized/full.pdf#page=1

By my current count, there now exist six Justices on the Court who would be happy to override Roe.

WhiteTrashCash

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Re: Trump outrage of the day
« Reply #5108 on: October 30, 2020, 09:11:01 AM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.

former player

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Re: Trump outrage of the day
« Reply #5109 on: October 30, 2020, 12:56:09 PM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

nereo

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Re: Trump outrage of the day
« Reply #5110 on: October 30, 2020, 01:00:30 PM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.

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Re: Trump outrage of the day
« Reply #5111 on: October 30, 2020, 02:20:59 PM »


I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.

If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.


 Under the Exceptions and Regulations Clause  in ARTICLE III, SECTION 2, CLAUSE 2:  "The Supreme Court shall have appellate Jurisdiction...with such Exceptions, and under such Regulations as the Congress shall make."

If the Democrats maintain their majority in the House and win a majority in the Senate  they have the option of exercising their power to limit the Supreme Court's appellate jurisdiction instead of packing the Court.




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Re: Trump outrage of the day
« Reply #5112 on: October 30, 2020, 02:34:45 PM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.

However one chooses to characterize the current Court it's a far cry from the Warren Court.

This is indisputable.

Wolfpack Mustachian

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Re: Trump outrage of the day
« Reply #5113 on: October 30, 2020, 04:34:50 PM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.

Just wanted to chime in and say this was a very interesting thought that makes a lot of sense. Lifetime appointments lend themselves to the SC being more conservative than the population in general.

talltexan

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Re: Trump outrage of the day
« Reply #5114 on: October 30, 2020, 05:05:10 PM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

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Re: Trump outrage of the day
« Reply #5115 on: October 30, 2020, 05:41:40 PM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Neither a president's nor a  justice's party affiliation is any  assurance of how they will rule once they're seated on the Court.

No justice's tenure on the Court more conclusively epitomizes  this verity than that of Chief Justice Earl Warren.

 "The Warren Court has been recognized by many to have created a liberal 'Constitutional Revolution.'"


Chief Justice Earl Warren was nominated by Republican President Eisenhower who later declared Warren's nomination was “the biggest damn-fool mistake I ever made."


Wikipedia

Warren was born in 1891 in Los Angeles and was raised in Bakersfield, California. After graduating from the University of California, Berkeley School of Law, he began a legal career in Oakland. He was hired as a deputy district attorney for Alameda County in 1920 and was appointed district attorney in 1925. He emerged as a leader of the state Republican Party and won election as the Attorney General of California in 1938

Earl Warren...served as the Republican Governor of California from 1943 to 1953 and Chief Justice of the United States from 1953 to 1969.

Warren is generally considered to be one of the most influential U.S. Supreme Court justices and political leaders in the history of the United States.

 The Warren Court has been recognized by many to have created a liberal "Constitutional Revolution", which embodied a deep belief in equal justice, freedom, democracy and human rights.

In July 1974 after Warren died, Los Angeles Times commented that "Mr. Warren ranked with John Marshall and Roger Taney as one of the three most important chief justices in the nation’s history."

 In December 2006, The Atlantic cited Earl Warren as the 29th most influential person in the history of the United States and the second most influential Chief Justice, after John Marshall.

In September 2018, The Economist named Warren as "the 20th century’s most consequential American jurist" and one of "the 20th century's greatest liberal jurists".



« Last Edit: October 30, 2020, 05:50:48 PM by John Galt incarnate! »

sherr

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Re: Trump outrage of the day
« Reply #5116 on: October 30, 2020, 06:32:47 PM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Neither a president's nor a  justice's party affiliation is any  assurance of how they will rule once they're seated on the Court.

Well sure, that was probably true before the Republicans founded the Federalist Society to pre-vet all their judges so that they can be super duper sure that the only judges they nominate for anything are super-duper conservatives.

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Re: Trump outrage of the day
« Reply #5117 on: October 30, 2020, 06:43:17 PM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

FIPurpose

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Re: Trump outrage of the day
« Reply #5118 on: October 30, 2020, 07:47:02 PM »
No, the GOP donors have been extremely happy with all of their justice picks, including Kennedy. They all vote the right way on any vote that affects their pocketbook, and the swinging vote on social issues from a few of the centrist ones keeps bringing in a reliable voter base to keep voting in judges who all reliably uphold corporate interests. Koch et al. could care less if gay marriage is legal.

JLee

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Re: Trump outrage of the day
« Reply #5119 on: October 30, 2020, 07:55:43 PM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.

FIPurpose

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Re: Trump outrage of the day
« Reply #5120 on: October 30, 2020, 08:00:17 PM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.
« Last Edit: October 30, 2020, 08:02:13 PM by FIPurpose »

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Re: Trump outrage of the day
« Reply #5121 on: October 31, 2020, 02:18:43 AM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.
That is generally true of courts, especially higher ones.

First of all the people in there are often quite old, and with age often comes conservatism.
Second, people in a higher court are always those who profited from the existing system, so they see it in a better light than most people.
Third, Judges don't want to set a precedent. It's more work and more enemies.

Keep in mind that all those things work in a subconscious way and as such are hard to pin down, not to speak of activly being aware and countering them in your daily work.

ctuser1

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Re: Trump outrage of the day
« Reply #5122 on: October 31, 2020, 04:22:48 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!
« Last Edit: October 31, 2020, 04:25:05 AM by ctuser1 »

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Re: Trump outrage of the day
« Reply #5123 on: October 31, 2020, 04:29:43 AM »
I really do wonder how far the minority in the country can go in imposing their will on the majority before the majority bring out the torches and pitchforks. Lately, we've started seeing signs that Americans are getting tired of having no voice and are starting to move away from peaceful methods of protest. If the situation continues, I expect protests to become much more violent and destructive.
If Democrats win the Presidency along with majorities in the House and Senate the Supreme Court will be looking isolated.  It will be interesting to see whether the strength of the right wing ideology on the court outweighs common sense.  If it does I would hope the Democrats expand the Supreme Court and the Federal District and Appeals courts to offset McConnell's court packing, and legislate on issues the court might reverse course on such as the right to provide abortion care, gay marriage and so on.

That's the thing about SCOTUS though.... with life-time appointments they're pretty much insulated from the other two branches, and impervious to the political drifts of the country at large.  One could make a compelling argument that SCOTUS en masse has been more conservative than the country as a whole for decades now.
That is generally true of courts, especially higher ones.

First of all the people in there are often quite old, and with age often comes conservatism.
Second, people in a higher court are always those who profited from the existing system, so they see it in a better light than most people.
Third, Judges don't want to set a precedent. It's more work and more enemies.

Keep in mind that all those things work in a subconscious way and as such are hard to pin down, not to speak of activly being aware and countering them in your daily work.

If they were appointed until retirement age, they would not be that old. Here they have to retire at latest at 67 years. Some keep working in the judicial system but not as ordinary judges but as temps. The job of the the judges at our supreme court is to set precedents. If the judges are worried about making enemies, I would be seriously worried about your system to appoint judges and the independence of your courts.

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Re: Trump outrage of the day
« Reply #5124 on: October 31, 2020, 09:14:34 AM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Kennedy's Libertarian streak influenced  him to rule as he did in Lawrence and Obergefell which infuriated Scalia and social conservatives.

Republican John Paul Stevens became increasingly attuned to liberal causes during his tenure on the Court.

 He attributed his metamorphosis to his keen appreciation of the great number of people significantly affected  by the Court's rulings.
« Last Edit: October 31, 2020, 09:22:10 AM by John Galt incarnate! »

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Re: Trump outrage of the day
« Reply #5125 on: October 31, 2020, 09:20:32 AM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.



There's not much comity among the Senators anymore.

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Re: Trump outrage of the day
« Reply #5126 on: October 31, 2020, 09:28:51 AM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

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Re: Trump outrage of the day
« Reply #5127 on: October 31, 2020, 09:30:21 AM »
Counterpoint: only Republican Presidents being allowed to appoint SCOTUS Justices leads to them being more conservative than the country in general.

Well sure, right now in this particular instance. In general, though, Republicans appointing "reliable conservative" justices hasn't really happened at least to Republican satisfaction until very recently. Before, Democrats appointed the Ginsbergs who were reliably progressive and Republicans were, again from a Republican standpoint, hit or miss. Sure, you had a Scalia but you also had a Kennedy. Sure you had a Thomas, but you also had a real flip flop with Souter. So, if we're talking about a general trend over years of conservative justices, having Republican presidents appoint them has been no real indicator of solid conservative justices. I think nereo's point is much more valid from an overall point of view.

Ginsberg was confirmed 96-3 -- completely different story vs what is happening today.

It is interesting that there was a time when people weren't as partisan and voted for justices based on qualifications and not just partisan politics. We are quite divided now.

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Re: Trump outrage of the day
« Reply #5128 on: October 31, 2020, 10:05:58 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
« Last Edit: October 31, 2020, 10:14:16 AM by John Galt incarnate! »

ctuser1

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Re: Trump outrage of the day
« Reply #5129 on: October 31, 2020, 10:35:43 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

My problem with ideologies is when they becomes absolutist - as judicial originalism has.

Un-elected Justices, appointed by minority presidents now have majority on the court. Some of them have decided (unsupported by the plain meaning of the constitutional text) that certain non-obvious extensions of the plain meaning of the words in the constitution are implied and hence sacred, even beyond the reach of democratically elected governments (e.g. "money" == "speech").

Originalism used as a secondary supporting argument on top of other philosophies are likely perfectly fine. Using Originalism as the primary schtick is problematic - because politicians misrepresent. They do so now, and they did so hundreds of years ago when the constitution was framed. They will write or say what they needed to in order to achieve whatever ends they had in mind (and there were enough of dueling ends different framers of the constitution had). What you do have, unquestionably, is the text of what they wrote. Why not restrict themselves within that and leave the rest to the legislature??

Some originalists try to get around this by saying they anchor themselves in the plain text meaning when the constitution was framed. This would be okay if this was not applied hypocritically. The framers of the constitution clearly did not "mean" M18 when they said guns. Did they intend to include those when they framed the constitution? Did they intend nuclear ICBMs? I am not sure we have any definitive way to know. So why not constrain themselves within the text and leave those complicated considerations to the legislature??


What we have now is tyranny of the minority. I'm not sure that is what was intended by any "framer". The framers were very "liberal" for their time. So there are just as many ways to interpret the constitution in liberal ways when you apply "originalist" lens to it - just as they are of interpreting it in "conservative" ways. When a partisan ideological entity pleads their case as one of many such voices - it is great, that's what the freedom of speech is there for. When they attempt to hijack the nation at the behest of a minority - that becomes a problem.
« Last Edit: October 31, 2020, 10:45:33 AM by ctuser1 »

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Re: Trump outrage of the day
« Reply #5130 on: October 31, 2020, 10:39:36 AM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

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Re: Trump outrage of the day
« Reply #5131 on: October 31, 2020, 10:47:44 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

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Re: Trump outrage of the day
« Reply #5132 on: October 31, 2020, 11:17:36 AM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

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Re: Trump outrage of the day
« Reply #5133 on: October 31, 2020, 11:21:45 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?






Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."



 




« Last Edit: October 31, 2020, 11:25:36 AM by John Galt incarnate! »

EscapeVelocity2020

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Re: Trump outrage of the day
« Reply #5134 on: October 31, 2020, 11:28:37 AM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.  They did not predict the future and could not have imagined what social issues face America today.

Quote
When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute? Does prohibiting discrimination based on "sex" now include gay and transgender people? How should we apply today such vague, 18th-century language as "due process," "cruel and unusual," and even "liberty"? Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process. But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people. The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest. Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience? Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.

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Re: Trump outrage of the day
« Reply #5135 on: October 31, 2020, 11:47:04 AM »

 I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.


"We are not final because we are infallible, but we are infallible only because we are final." Justice Robert H. Jackson

The Court's rulings are powerful due to their finality which is salutary.

The finality of the Court's opinions and precedents is necessary  because it fosters   a body of fundamental law that is stable, predictable, and reliable, the indispensable requisites of the rule of law.



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Re: Trump outrage of the day
« Reply #5136 on: October 31, 2020, 12:38:49 PM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.  They did not predict the future and could not have imagined what social issues face America today.

Quote
When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute? Does prohibiting discrimination based on "sex" now include gay and transgender people? How should we apply today such vague, 18th-century language as "due process," "cruel and unusual," and even "liberty"? Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process. But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people. The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest. Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience? Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.

William Falk

Sure, there is certainly validity in the fact that the founders left things sometimes deliberately ambiguous and of quotes such as the one you mentioned of Madison. However, even the most ardent living Constitutionalist could hopefully see that at some point, you would get so far beyond what was written that you're not interpreting anything - you're writing what you want into it (at least I hope they would agree that you could get there, otherwise, they are worse off than I thought). The issue isn't that originalists as I understand it and as I lean believe that 100% perfectly every time you can think, what would all of the founders have perfectly meant here. It's just that they lean towards looking at things from the standpoint of when they were wrote, what they really meant, whereas living constitution people lean towards the side of more of reinterpreting it for the ages. Sure, could you go to extremes either way? Absolutely. Does the simplicity of at least the arguments of originalists (if not their interpretation) mean that they are inherently flawed - certainly not.

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Re: Trump outrage of the day
« Reply #5137 on: October 31, 2020, 12:40:19 PM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

We have juries that require unanimous decisions, and even in hotly debated scenarios they tend to make a decision most of the time. Right now the decisions that are 5-4 are basically winner-take-all, the author of the decision gets to write all of the precedent that gets used in future cases and direct the country's legal decisions.

There are countries whose highest court must make unanimous decisions. Either that comes through extended deliberation, finding what middle ground there is, making trade-offs. We need something that ends this lifetime power cliff at the 50% mark.

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Re: Trump outrage of the day
« Reply #5138 on: October 31, 2020, 01:41:53 PM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.

So how does an 'originalist' respond to the fact even the Founders argued amongst themselves and recognized the need for the Constitution to be a living document.
They did not predict the future and could not have imagined what social issues face America today.


I do believe that the Constitution "lives and breathes." When I argue with those who say it doesn't or shouldn't I say to them: "Why then, did the Framers provide for amending the Constitution?" In the natural world things that live and breathe
get taller, bigger, longer, etc. The Constitution of 2020 is longer  than    when drafted, a metaphorical manifestation that it is a living, breathing document.There are also Court-established, fundamental  rights not enshrined in the Constitution that are just as foundational to liberty as the enshrined rights.



 

Quote
When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute?

Under Heller, "Arms" means arms that are in common use such as the AR-15 and its variants.


Does prohibiting discrimination based on "sex" now include gay and transgender people?

Yes, but currently there is more protection  for rights of gay people than for transgender people. I expect litigation of issues of a transgender person's rights among  future  litigation Gorsuch mentioned  in Bostock.


How should we apply today such vague, 18th-century language as "due process,"

The long-standing  essence of "due process of law" is a person's  opportunity to receive notice of actions the government is taking against them and to prepare for and present a defense in criminal matters or counterargument in civil matters.

 (See Judge Friendly's stellar  explication of the meaning of due process of law).


 "cruel and unusual," and even "liberty"?

Under the 8th Amendment, "cruel" means barbarous or torturous such as execution by pouring molten lead into the eyes, nostrils, ears, and mouth of a condemned convict. "Unusual" means a disproportionate punishment such as a $10,000 fine for spitting on the sidewalk or a 30-year sentence of a person for stealing a bicycle (no prior convictions).

Here is the meaning of liberty under the 14th Amendment's Due Process  Clause. 

Poe v. Ullman (1961)


Justice Harlan's Dissent

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.

This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,...and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Due process has not been reduced to any formula; its content cannot be determined by reference to any code.The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.


Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process.

I largely disagree.  For instance, under the Exceptions and Regulations Clause Congress has power to change the "appellate Jurisdiction" of the Supreme Court. There is NO ambiguity about this power; it is as plain as the nose on one's face.


But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people.
The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

Construing constitutional guarantees as written preserves them and effectuates their permanence. (See my signature line).

Here is information about the two  oaths taken by justices of the Supreme Court:


"Unlike the Presidential Oath of Office, the wording of the Supreme Court Oath is not explicitly defined in the text of the United States Constitution. However, according to Article VI of the Constitution:"

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States."
In 1789, Congress sought to remedy this omission by drafting an official oath. This first version was used until 1861. The text was short, a single sentence. It read:

"I do solemnly swear (or affirm) that I will support the Constitution of the United States."
The text now reads:

"I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

This office, much more specific and lengthy than the original, is now used by every federal office investiture except for the office of the President.

The Second Oath
Appointees to the Supreme Court Bench must not only take the oath listed above, but a second oath. This statement is called The Judicial Oath. The Judiciary Act of 1789 established the federal judiciary. The Act set the number of Supreme Court Justices at six (five Associate Justices and one Chief Justice). It also mandated that for the Supreme Court Justices to begin serving, they must swear a second Oath of Office. The original text of this was:

"I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."
This oath was used until 1990 when the Judicial Improvements Act replaced the phrase beginning with "according to the best of my abilities..." to "under the Constitution." This language proved reasonably more effective in tying the decisions of the judiciary to the authority of the United States Constitution.

Frequently, Supreme Court Justices have elected to take a Combined Oath which brings the two affirmations together in one statement.

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest.
Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience?

Every human has their predilections and judges and justices do observe differing modes of constitutional adjudication. It cannot be otherwise.

 Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.
William Falk

Have you read the list of liberty-enhancing precedents I've posted a few times?
It starts with Meyer and ends with Obergefell. The list is a *continuum of rationales, transformational stepping stones that form a path of the individual liberty of family matters lived by free people in civil society.

*My version of Justice Harlan's   "rational continuum" is his dissent in Poe.




« Last Edit: October 31, 2020, 05:41:20 PM by John Galt incarnate! »

ctuser1

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Re: Trump outrage of the day
« Reply #5139 on: October 31, 2020, 02:24:22 PM »
Under Heller, "Arms" means arms that are in common use such as the AR-15 and its variants.

Scalia and other justices overturned 200 years of jurisprudence to arrive at their fantastical decision that the commonly understood meaning of the plain text does not matter.

One such unanimous decision that 5/4 Heller overturned:
https://en.wikipedia.org/wiki/United_States_v._Miller

I'm not sure this is in keeping with your claim that "originalism" as practiced by the federalist society members is good for stability.

The actions of the "originalists" appear very reactionary to me on the merits of their decisions alone.
« Last Edit: October 31, 2020, 02:27:29 PM by ctuser1 »

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Re: Trump outrage of the day
« Reply #5140 on: October 31, 2020, 02:44:36 PM »
Do you really have to go much further than Bush v Gore? Kennedy practically decided the presidency for the GOP, where the court would 4-5 today rather than the 6-3 it is now. (It would be 2-7 if we had a Gore presidency along with no Merrick obstruction). And who knows what other disasters we got because Kennedy was a reliable conservative vote. Would we have avoided the Iraq war? Probably not. But would we have had the Weapons of Mass Destruction fiasco? The 2008 melt down directly caused by GOP policies? The continued empowerment of large corporations and their ability to bank role politicians with unlimited resources?

Any anger about Kennedy or Roberts is a complete farce and is only meant to stir up evangelical voters to the polls.

It's almost like you're deliberately trying to be obtuse. Did Kennedy make some significant conservative rulings such as the one you're talking about with Bush/Gore - certainly. I commented that he was not a reliable conservative voter, and I stand by that. Reliable means consistency. You can't with a straight face imply that Kennedy was as reliable of a conservative voter as Ginsburg or Sotomayer or Kagan was/is for the liberal side. You also didn't address Souter at all.

The fact of the matter is, my point is really unassailable. The numbers don't lie. 16 out of the last 20 justices were appointed by Republican presidents. 9 out of the last 13. And yet we have had rulings legalizing same sex marriage, not overturning the ACA (so far), not overturning Roe v Wade, etc. etc. If Republicans consistently appointed justices that were as reliably conservative as Thomas and Alito, things would certainly have been different.

That's all that I am saying. I'm not angry about Kennedy or Roberts, but it would take someone blindingly partisan to imply that either one is as consistent of a conservative vote (as defined as what conservatives would want rulings to be versus what liberals would) as liberal justices appointed by Democratic presidents have been consistently liberal. We've likely entered an era where this has changed some due to the Federalist society vetting people and other reasons, but that's a relatively new situation.

I didn't mean that you are angry. I meant that there is a GOP narrative that somehow Roberts or Kennedy aren't real conservatives (which is why they continually claim that the court had a liberal leaning to it). This also feeds into the "Bork" narrative, because conservatives want to re-imagine that Kennedy was never actually a conservative and has always been a RINO.

The truth is that it wasn't until 2006, or so that Kennedy really started being the middle vote in a lot of cases. Before 2006 Kennedy's record is just as reliably conservative as the rest of them (about 75% on close rulings). I think we're seeing the same thing with Roberts today. Once a justice sees himself as the deciding vote, suddenly they have to some extent take on personal responsibility for the consequences of that ruling. I would not be surprised if continuing forward we see not just Roberts but also Gorsuch (or Barrett?) voting with the liberal bloc on certain social issues.

https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

Kennedy was the deciding vote on maybe 4 or 5 big cases in the past decade? You can also find a handful of cases where Scalia was the only justice to side with the liberal bloc as well, but we don't re-imagine him as a moderate simply because those cases weren't nearly as high profile.

The main issue I think here is that there is too much power is invested in 5-4 decisions. We need stronger decisions, if not unanimous, we need the justices to force stronger decisions that can't just be wiped out by a single president appointing certain people in a single 4 year period.

I mean can we consider that basically our entire judicial structure could be flipped upside down by a single terrorist attack on the supreme court and then our constitution says that the president gets to appoint all the lifetime replacements. Today 6-3, next year, it could be 0-9. The system is so fragile and so much is built into the court making certain decisions. We've had multiple presidents assassinated for the purpose of making the VP president (Lincoln, Garfield). It just seems blatantly obvious to me that either the court needs to reform itself through forcing unanimous decisions, or be reformed by the legislature.

Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.

Also, I had never thought about what could happen if something happened to the Supreme Court as a whole, and it is a good thought experiment into the power that a president could potentially have.

The court certainly does have significant powers. I don't really know what could be done to generate more consensus verdicts, though, or to legislatively fix it. Ultimately, conservatives and liberals - you and I for example, likely have wildly divergent views on what the Constitution means and how it should be interpreted. Of course, the founders worded things with deliberate vagueness at times because they didn't agree on it all either. I truly just don't know how there could be any consensus on these significant issues that have been decided by 5-4 decisions or way to redo things where there still wasn't a bitter divide between people's interpretation of what the Constitution should and should not say or a way to restrict what the Supreme Court could do  to make their decision less powerful.

We have juries that require unanimous decisions, and even in hotly debated scenarios they tend to make a decision most of the time. Right now the decisions that are 5-4 are basically winner-take-all, the author of the decision gets to write all of the precedent that gets used in future cases and direct the country's legal decisions.

There are countries whose highest court must make unanimous decisions. Either that comes through extended deliberation, finding what middle ground there is, making trade-offs. We need something that ends this lifetime power cliff at the 50% mark.

The correlation to criminal juries is an interesting one. I still don't think that the highly contentious issues would be unanimous, but I may be wrong.

That being said, I'd be interested in how you think the nuts and bolts of such decisions would be made. To me, if it happened, the most logical thing would be for it to come down to the states making legislative decisions and no sweeping national verdicts - so for gun control for instance, previous state laws that the SC struck down for significant limitations on guns in places like Chicago would be allowed, but national legislation would not be? Also, who would be the arbiter of said decisions?

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Re: Trump outrage of the day
« Reply #5141 on: October 31, 2020, 03:50:40 PM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?







Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."
But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

John Galt incarnate!

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Re: Trump outrage of the day
« Reply #5142 on: October 31, 2020, 04:37:32 PM »


Sure, there is certainly validity in the fact that the founders left things sometimes deliberately ambiguous and of quotes such as the one you mentioned of Madison. However, even the most ardent living Constitutionalist could hopefully see that at some point, you would get so far beyond what was written that you're not interpreting anything - you're writing what you want into it (at least I hope they would agree that you could get there, otherwise, they are worse off than I thought). The issue isn't that originalists as I understand it and as I lean believe that 100% perfectly every time you can think, what would all of the founders have perfectly meant here. It's just that they lean towards looking at things from the standpoint of when they were wrote, what they really meant, whereas living constitution people lean towards the side of more of reinterpreting it for the ages. Sure, could you go to extremes either way? Absolutely. Does the simplicity of at least the arguments of originalists (if not their interpretation) mean that they are inherently flawed - certainly not.


How should  a justice rule when pressed to establish  a particular new right when there is no nexus between the desired  right  and the words of the Constitution?

Should  they invoke judicial restraint, and consequently, in deference to Congress and State legislatures wait for those bodies  to exercise their power to enact the new right?

Or should the justices  themselves exercise their power to establish the new right "even if the broader public disagrees and even if the legislature refuses to act"?

If the justices  do so  is their  exercise of judicial power an undemocratic usurpation of the legislative power   that "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves"?

The competing arguments are clearly  presented in Obergefell.



OBERGEFELL et al. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.
2015



Justice Kennedy delivered the opinion of the Court.

There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate.

The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage.

In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.

An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.


Justice Scalia, with whom Justice Thomas joins, dissenting.

 I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

 The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

 So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

« Last Edit: October 31, 2020, 04:40:19 PM by John Galt incarnate! »

John Galt incarnate!

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Re: Trump outrage of the day
« Reply #5143 on: October 31, 2020, 05:03:10 PM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?







Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."
But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

Here's an even  stickier wicket for the most adamant originalists:

Under the First Amendment's Religion  Clauses "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

Suppose I establish the "Sect of the Moon Worshipers."

One of its rituals is to sacrifice the first born of any congregant on any  night the moon is full.

Doesn't no  mean that the Free Exercise Clause protects the sacrificial ritual?

"Squirm you terrible, wrongheaded originalists."

Ha ha!
« Last Edit: October 31, 2020, 05:06:43 PM by John Galt incarnate! »

PKFFW

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Re: Trump outrage of the day
« Reply #5144 on: October 31, 2020, 05:29:29 PM »
Thanks for the explanation and link. It was an interesting read. I do very much agree that when people become the swing vote, they tend to weigh their decisions differently, and I could definitely see Gorsuch being that new swing vote at times.
Or to put it another way, when they believe they can somewhat abrogate personal responsibility for their decision by being simply one in many, they disregard the Constitution and decide an issue based on the way they personally want the world to be.  When they feel they can not do so, they more carefully consider what the Constitution means and how it actually applies to real people.

An interesting situation for a country to be in when 9 people hold such power over the lives of 300 odd million.
« Last Edit: October 31, 2020, 05:39:23 PM by PKFFW »

nereo

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Re: Trump outrage of the day
« Reply #5145 on: October 31, 2020, 06:51:35 PM »
I think we’ve strayed off-topic for this off-topic topic.

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Re: Trump outrage of the day
« Reply #5146 on: October 31, 2020, 07:30:54 PM »
I think we’ve strayed off-topic for this off-topic topic.

Haha we've made it to the point of the election where I try not to think about the election for the next couple days.

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Re: Trump outrage of the day
« Reply #5147 on: October 31, 2020, 08:31:39 PM »
The politicization of the courts is as much at the feet of the justices themselves as the politicians irrespective of the self-serving platitudes from Roberts.

As far as I can see, 6 of the currently 9 members of the court are members of The Federalist society. This is an explicitly ideological and partisan organization.

Imagine the counter-factual scenario where 6 out of 9 justices were members of, and endorsed by "The Marxist Society" or "The Communist Society" or something such!

The originalism promulgated by the Federalist Society advantages the ordinary citizen because originalism anchors the rationale undergirding an opinion to  the meaning of the words in the Constitution that the public can  easily understand in the first instance as opposed to it attempting    to  divine the meaning of an abstruse mode of constitutional adjudication.


I think of originalism as the "lazy jurist's " method of interpreting and applying the Constitution.

Originalism obviates the need for volumes and volumes of byzantine dicta that is inexplicable to the ordinary citizen.

I am an originalist.
The Constitution specifically mentions an army and a navy.  How does originalism allow for an air force?

Apart from maybe WWII, has the US Air Force been used for defence?  The role it seems most often to take is an aggressive foreign role, not a national defensive one.



Under ARTICLE 1, SECTION 8, "The Congress shall have Power To lay and collect Taxes...to...provide for the common Defence...of the United States."


The Constitution's silence as to  other types of military forces  does  not bar their establishment.

An air force is indispensable to "the...Defence...of the United States."
But the words of the Constitution, as meant by its writers, cannot have been intended to mean "defence in the air".  Originalism is just a way to justify a desired result, and is consistent only in being based on the premise that the founders must have been socially conservative and therefore referring to what they meant justifies being socially conservative today.

OzzieandHarriet

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Re: Trump outrage of the day
« Reply #5148 on: October 31, 2020, 10:38:10 PM »
To get back on topic ... this is pretty fucking outrageous, both the incident itself and even more Trump’s obvious approval.

Really worrisome where all this could be heading.

https://www.cnn.com/2020/10/31/politics/biden-bus-2020-campaign-texas-trump-supporters/index.html

Feivel2000

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Re: Trump outrage of the day
« Reply #5149 on: November 01, 2020, 01:42:05 AM »
Slowing the bus down, maybe trying to push the bus from the road?

I guess an appropriate response would have been to open fire with semi-automatic guns.