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SCOTUS Decisions - The Good, The Bad, and The Ugly


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#141 Rich T Bikkies

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Posted 25 February 2020 - 12:03 PM

This gives the Border Patrol the right to do it again. For fun, even. But CMIIW.
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#142 JackD

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Posted 25 February 2020 - 12:03 PM

If they get the chance, the Democrats should stack the court without apologies to anyone. This court sucks!

#143 golden_valley

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Posted 04 March 2020 - 06:00 PM

Chief Justice Roberts issues a statement condemning Senator Schumer's words. He found them threatening I guess.

#144 JackD

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Posted 04 March 2020 - 07:38 PM

I think Schumer was entirely right to tell Roberts he was out of line.

#145 Probabilistic

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Posted 05 March 2020 - 09:08 AM

Schumer's words are dangerous. At best, clearly he got carried away. What kind of consequences should the two justices face? Political consequences are beyond Schumer's reach. He doesn't have sufficient votes, nor would he ever have, to impeach and remove the justices for ruling against his chosen positions. The only remaining consequences are social ostracization of or intimidation by threat of physical violence against the justices and their families. Wholly uncalled for. In fact quite harmful to the rule of law and institutions. Such emanations are more suited as Trumper tantrums.

#146 JackD

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Posted 05 March 2020 - 09:26 AM

Stacking the court, should the Democrats regain the Senate. The Congress, should it desire to do so, can also restrict the court's jurisdiction.

#147 LFC

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Posted 05 March 2020 - 10:28 AM

 Probabilistic, on 05 March 2020 - 09:08 AM, said:

Schumer's words are dangerous. At best, clearly he got carried away. What kind of consequences should the two justices face? Political consequences are beyond Schumer's reach. He doesn't have sufficient votes, nor would he ever have, to impeach and remove the justices for ruling against his chosen positions. The only remaining consequences are social ostracization of or intimidation by threat of physical violence against the justices and their families. Wholly uncalled for. In fact quite harmful to the rule of law and institutions. Such emanations are more suited as Trumper tantrums.

Agreed. This comes across too much like a veiled threat that those who disagree will come for them. Much too Trumpian / Republican for my tastes.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

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#148 JackD

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Posted 05 March 2020 - 10:35 AM

As Dahlia Lithwick (I believe) pointed out, Schumer's words directly paralleled Kavanaugh's during his confirmation hearing with no comment from Roberts. Nor did Roberts comment when his fellow Republican justices criticized Democratic senators. Balls and strikes, my eye! The notion that Schumer was threatening physical harm or encouraging it is absurd.

#149 LFC

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Posted 05 March 2020 - 10:43 AM

I would never make the case that Roberts isn't a partisan hypocrite, just that Schumer should have chosen his words more wisely.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#150 Probabilistic

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Posted 05 March 2020 - 10:44 AM

 JackD, on 05 March 2020 - 09:26 AM, said:

Stacking the court, should the Democrats regain the Senate. The Congress, should it desire to do so, can also restrict the court's jurisdiction.

Such an action would discredit whatever trust people have remaining in the justice system's ability to adjudicate fairly. I understand some people believe we are way past such a mark, however stacking courts would not restore trust.

#151 golden_valley

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Posted 05 March 2020 - 10:53 AM

 JackD, on 05 March 2020 - 10:35 AM, said:

As Dahlia Lithwick (I believe) pointed out, Schumer's words directly paralleled Kavanaugh's during his confirmation hearing with no comment from Roberts. Nor did Roberts comment when his fellow Republican justices criticized Democratic senators. Balls and strikes, my eye! The notion that Schumer was threatening physical harm or encouraging it is absurd.

Yeah but he was yelling at a rally. Only Trump is allowed to do that.

#152 JackD

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Posted 05 March 2020 - 11:06 AM

Discrediting the trust people have remaining in the system's ability to adjudicate fairly. When it comes to the Supreme Court as opposed to the trial courts, at least when working with juries, (not the Courts of Appeal), that ship sailed long ago and McConnell's refusal to give Garland a hearing was simply an exclamation point. Roberts' job is to pretend the Court is fair and unbiased. The electorate's job is to not believe him.
Remember when Roosevelt tried to stack the Court? The Senate wouldn't let him but the Court got the message and changed its patterns of decisions. There's nothing illegal or unconstitutional (at least until the Roberts Court considers the matter) about stacking the court.
The notion that the Court is non political is, of course, a fairy tale. If the Court wants trust, it has to demonstrate that it deserves it.

#153 Probabilistic

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Posted 05 March 2020 - 11:35 AM

 JackD, on 05 March 2020 - 11:06 AM, said:

Remember when Roosevelt tried to stack the Court?

No. Neither I nor my parents were yet born. ;)

I don't see stacking as a corrective action. I see it as endangering the Court by further politicizing it - use of brute political force to get one's way.

#154 JackD

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Posted 05 March 2020 - 01:50 PM

I assume you'll concede that it happened. You don't think the Republicans are using brute political force to get one's way? Unilateral disarmament anyone?

#155 Probabilistic

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Posted 05 March 2020 - 02:40 PM

 JackD, on 05 March 2020 - 01:50 PM, said:

I assume you'll concede that it happened. You don't think the Republicans are using brute political force to get one's way? Unilateral disarmament anyone?

Win and deprive the Republicans the mechanisms they currently control to extend their mal-influence. The cure to Republican malfeasance is not a Democratic one. It's not about unilateral disarmament. Keep any eye on the big picture. Work towards re-establishing Court's legitimacy over time, rather than demolishing it entirely. Too many countries suffer from lack of judicial independence. Schumer's words were meant to intimidate judges in to submission. Not prudent.

Ironic to find myself on the opposite side of this argument with a lawyer who's advocating manipulating the composition of courts till we get verdicts we like.

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#156 JackD

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Posted 05 March 2020 - 03:05 PM

We gain nothing from pretending the Court is unpolitical. We lose a great deal by just being quiet and waiting for the disease to heal by itself. As things presently stand, we face generations of partisan decisions from this Court. If we make no effort to hold the Court accountable for its behavior, it will just go its merry way. Roberts has already indicated he is concerned for his and his Court's reputation and "legacy". We should use that concern and be sure he knows that. people know who they (the justices) are and what they are doing.

As to what this lawyer is advocating, I am advocating treating a political institution like the institution it is. There is no magic about courts that isolate them from politics. If you suggest to any practicing litigator, or transactional lawyer for that matter, that the courts, and the Supreme Court in particular, are not political entities influenced and often controlled by politics, he or she is likely to laugh in your face until he or she catches himself or herself and realizes that is not polite to do so.

As I pointed out earlier, political manipulation of the Court is not only legal but has been practiced for years. Giving this bunch a pass would be irresponsible, particularly for lawyers who, along with political science types, know exactly what this institution is and how it operates.

My parents were alive when Roosevelt tried to pack the court.

Harrumph!

#157 Probabilistic

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Posted 05 March 2020 - 03:56 PM

As is wont of a lawyer, you're arguing against a straw man. The claim is not that the Court hasn't been politicized to some degree, in fact increasingly become more ideological. No one is naive about it. However the harm can't be lessened by transforming it to an entirely political institution - captive to the whims and fancies of constantly changing political winds.

The solution for an institution whose efficacy is entirely dependent on its perceived legitimacy, and which has suffered a decline in legitimacy, is not to destroy its legitimacy entirely. That would cause more harm.

What does it mean to hold the Supreme Court accountable? It's supposed to be the final arbiter of the law. What are the legitimate mechanisms avaialble which balance the Court's independence and responsiveness to the broader polity? In my opinion Court packing does not balance those two equities.

#158 JackD

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Posted 05 March 2020 - 04:25 PM

"It's supposed to be the final arbiter of the law"

Tell it to Andy Jackson. Tell it to the women worried abut the fate of Roe v. Wade. Tell it to the families of the Japanese internment program (see Korematsu and Hirabyashi Supreme Court opinions). Years and years of administrative law are about to be overturned by McConnell's political ploy. Letting only one side play hard ball doesn't balance equities either. What do you find illegitimate about Court packing? Are you aware that it has occurred several times in the past. Actually occurred; not just attempted.
Your method of addressing the problem which you seem to acknowledge, while calling it a straw man, by inference seems to be to hope it goes away and not talk about it.

#159 LFC

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Posted 05 March 2020 - 04:34 PM

 JackD, on 05 March 2020 - 04:25 PM, said:

What do you find illegitimate about Court packing? Are you aware that it has occurred several times in the past. Actually occurred; not just attempted.

FMI other than Republicans during the Clinton and Obama years can you provide more details? I literally know nothing about this and find it rather fascinating to look at this kind of behavior from a historical perspective.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#160 D. C. Sessions

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Posted 05 March 2020 - 05:05 PM

 JackD, on 05 March 2020 - 03:05 PM, said:

We lose a great deal by just being quiet and waiting for the disease to heal by itself. As things presently stand, we face generations of partisan decisions from this Court.

You might explain what would happen were the Court to reverse Reynolds v Sims. And don't try to pretend that Roberts wouldn't if he could -- after Shelby County.
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