The Supreme Court discussion thread
So it now seems absolutely certain that the court will end up hearing an abortion related case sometime in the future. How should they adjudicate these new laws?
FWIW, I've always thought that the decision in Roe is worth reading, because it makes an interesting legal and philosophical argument in support of the compromise the justices reached, attempting to balance the the constitutional "right to privacy" which entails women's right to self-determination and the "legitimate state interest" in regulating abortion, e.g.
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.... As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
This balancing of interests leads them to make the viability of the fetus an inflection point with regard to when the state may legitimately assert an interest in requiring that the life of the fetus be protected.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Does the compromise outlined in Roe still make sense?
I also think there's probably room for a discussion about the role of the courts more generally, here, and particularly the way they are becoming politicized simply because the appointment process is so heavily politicized, i.e. the refusal to hold a vote on Merrick Garland, the Kavanaugh hearings, etc. But then one of the criticisms of Roe itself is that the compromise they reached might have been more appropriately reached via a legislative process, rather than by the courts. I've always thought that would have been optimal, but then I would not have traded the "optimal" legislative process for abortion being illegal the last 50 years either. So I am a supporter of Roe.
They are declaring war
Newt Gingrich
@newtgingrich
Chief Justice Roberts and his colleagues should accept immediate review on any number of emergency petitions filed by the Justice Department on behalf of the President and the American people and reverse the outrageous district courts immediately--but do so in very broad language that directs the district court judges to stop meddling in the operation of the executive branch where, under the separation of powers doctrine,
You must be pleased.
hm no I would be pleased with SCOTUS fixing the disastrous use of nationwide injunctions, the abuse of putative classes by district judges, forum shopping and so on.
that would be winning.
Destroying the system is an option that has to be kept to be used only when facing no avenue for redress within the system, and they are far from having exhausted all available in-system options.
hm no I would be pleased with SCOTUS fixing the disastrous use of nationwide injunctions, the abuse of putative classes by district judges, forum shopping and so on.
I've told you several times that forum shopping isn't nearly the problem that you think it is. And I've explained why. Why do you think it is a big problem? How would you fix the problem?
What is your specific complaint about U.S. class actions?
I've told you several times that forum shopping isn't nearly the problem that you think it is. And I've explained why. Why do you think it is a big problem? How would you fix the problem?
What is your specific complaint about U.S. class actions?
I don't recall that specific conversation but while I agree it isn't usually a big problem for the end result legally, it is when forum shopping allows to delay nationwide implementation of time sensitive executive choices.
imagine the OSHA vaccine mandate was in fact legal and republicans had found a district judge willing to write an injunction against it in 24 hours, just to give an example.
imagine some of the money Trump is trying to impound ends up, it could actually not be spent if that's his choice .
you order to spend it and then when you try to recoup it it's gone.
that's irreparable damage basically, which in theory is what injunctions should prevent, never cause.
the problem of federal forum shopping is easily fixable the same way you fix the problem of which judge exactly oversees a case among a pool of judges in the same area: you randomize.
basically for any case that has nationwide implications you randomize nationwide among district judges. so you can't even "forum shop" the court of appeal of your preference.
None of this gibberish answers Rococco’s question and your last sentence seems to bemoan that it is hard to forum shop at the district judge level.
I would contend the opposite is true: it is easy to “forum shop” for the appellate court of choice than trial court judge given the marked difference in the appellate courts decisions.
I don't recall that specific conversation but while I agree it isn't usually a big problem for the end result legally, it is when forum shopping allows to delay nationwide implementation of time sensitive executive choices.
imagine the OSHA vaccine mandate was in fact legal and republicans had found a district judge willing to write an injunction against it in 24 hours, just to give an example.
imagine some of the money Trump is trying to impound ends up, it could actually not be spent if that's h
You don't get to choose your judge when you file a lawsuit in federal court. I don't why you believe that is the case. I have told you a million times that you are just as likely to end up with a Trump appointee as a democratic appointee.
You don't get to choose your judge when you file a lawsuit in federal court. I don't why you believe that is the case. I have told you a million times that you are just as likely to end up with a Trump appointee as a democratic appointee.
afaik you get randomized within the district which means you can get your chances over 80% of having a democrat appointed judge if you are suing a republican administration (and viceversa).
Maryland where the venezuelan deportees sued is 9 democrats vs 1 republican. ND Texas is 10 republicans vs 1 democrat.
Then ofc actual experts will know if some judge is too centrist so not a guaranteed ally, or even if he slipped to the other side with regards to the specific topic you are suing about. I suppose they have detailed file on every single sitting judge and choose the venue accordingly.
Not sure what I am missing when you can file in the district of your choice
afaik you get randomized within the district which means you can get your chances over 80% of having a democrat appointed judge if you are suing a republican administration (and viceversa).
Maryland where the venezuelan deportees sued is 9 democrats vs 1 republican. ND Texas is 10 republicans vs 1 democrat.
Then ofc actual experts will know if some judge is too centrist so not a guaranteed ally, or even if he slipped to the other side with regards to the specific topic you are suing about. I suppo
Are you talking about forum shopping generally or only constitutional challenges against the federal government?
If the latter, I am more sympathetic to your point. But you must be super mad about conservative activists filings lawsuits constantly in Amarillo, Texas, which is a single judge district.
Rococo,
I am semi-grunching this thread. But I take it, you:
a. Dont have any problems with all the judicial rulings blocking Trump's executive decisions?
and
b. Aren't worried this is opening a pandora's box if/when a Democrat takes control of the executive branch again?
Rococo,
I am semi-grunching this thread. But I take it, you:
a. Dont have any problems with all the judicial rulings blocking Trump's executive decisions?
and
b. Aren't worried this is opening a pandora's box if/when a Democrat takes control of the executive branch again?
There is already widespread precedence from both Democrats and Republicans attempting to and succeeding in the use of injunctive relief to challenge certain aspects of executive branch policies. And it should be the case that judges should use a court order to block certain executive actions if the argument is made that by not blocking them then when there is a prima facie case for irreversible harm can be made.
For instance, the use of judicial order to block certain debt cancellations were likely due to the fact that the cancellation could cause immediate harm to the parties that held the debt, and reversing such a cancellation would be more difficult and cause undue burden to those parties.
The Biden administration's sweeping student loan forgiveness plan was temporarily blocked again Thursday by a Missouri judge, just one day after a federal judge in Georgia said he would let a restraining order against the relief expire.
St-Louis-based U.S. District Judge Matthew Schelp, an appointee of Republican former President Donald Trump, issued the latest preliminary injunction against Biden's relief plan.
As a result of the order, the U.S. Department of Education is again barred from forgiving people's student loans until Schelp has a chance to rule on the case.
The latest order capped 24 hours during which federal student loan holders were subjected to judicial whiplash, as a lawsuit challenging Biden's aid package, brought by seven GOP-led states, bounced from Georgia to Missouri courts.
The states bringing the suit — Alabama, Arkansas, Florida, Georgia, Missouri, North Dakota and Ohio — allege that the U.S. Department of Education's new debt cancellation effort is illegal.
On Wednesday, U.S. District Judge Randal Hall in Georgia found that his state lacked standing to sue against the relief plan, and therefor his court could not be the venue for the case.
Hall directed the case to be transferred to Missouri, because the states claim that Biden's plan would most harm student loan servicer Mohela, or the Missouri Higher Education Loan Authority.
I mean I’m not a lawyer but it seems to me that the courts will apply injunctive relief when there are at least two necessary conditions: that there is a prima facie case that the actions are outside of the constitutionally prescribed power of the executive; and that if the injunction is not placed that the parties seeking relief will have a tangible harm placed on them due to those actions.
In the case of for instance blocking deportations, the harm of being deported without a hearing is extremely burdensome, as it would undermine the right of due process that is provisionally given to migrants and could have the effect of reducing everyones constitutional rights. So the conditions are met.
And we also have to remember that a preliminary injunction doesn’t mean that you have no more recourse. You can also appeal those injunctions and receive relief from higher courts blocking those injunctions and remanding them back down to lower courts to proceed with the rest of the action sans the injunction. See this article for an example:
Lastly an injunction doesn’t mean that the suing party will win the case. It just means that until the case is settled, whatever action is being said to cause the burden can’t proceed. And remember, if it was so egregious these matters can be heard by appeals courts and even taken up by the SC if needed. If the SC had a problem with this practice, they can also rule on the practice more generally as well. That they haven’t ruled ln the practice in a way that restricts it beyond the tests that are in place in the given jurisdiction is a tacit affirmation that these are legitimate actions of the court. I don’t see why we would worry about some future possibility of abuse when that would entail that the entire system must be rotten for it to get to that point, which if that’s the case then you certainly must already think it’s rotten given the widespread use and acceptance of the practice even applied to the executive branch.
Rococo,
I am semi-grunching this thread. But I take it, you:
a. Dont have any problems with all the judicial rulings blocking Trump's executive decisions?
I would have to look at each ruling individually. But I suspect that I would agree with the reasoning in the large majority of cases.
Aren't worried this is opening a pandora's box if/when a Democrat takes control of the executive branch again?
The pandora's box already is open. But I'm not terribly concerned about retribution. Democratic presidents in my lifetime (and Republican presidents other than Trump) historically have avoided doing a bunch of blatantly unconstitutional stuff. There always will challenges, and some actions always will be deemed unconstitutional. But Trump is the first president in my lifetime to issue a flurry of orders with no regard for their legality.
I don't recall that specific conversation but while I agree it isn't usually a big problem for the end result legally, it is when forum shopping allows to delay nationwide implementation of time sensitive executive choices.
imagine the OSHA vaccine mandate was in fact legal and republicans had found a district judge willing to write an injunction against it in 24 hours, just to give an example.
imagine some of the money Trump is trying to impound ends up, it could actually not be spent if that's h
It doesn’t follow that from the fact that injunctive relief is designed to prevent irreparable harm that it will never cause irreparable harm. Obviously the party arguing against the injunction will often claim that it will cause irreparable harm to them, and they might be right about that. In those cases, a judge would have to appeal to other factors, such as whether the injunction is narrowly tailored towards remedying the harm of the party requesting the injunction, the strength of the case against such actions taking place, past precedence on when to apply the relief, whether one party’s burden is greater than another’s, and probably more factors.
The point is that just arguing irreparable harm is going to underdetermine whether the injunction is invalid. Rather the test is a “balance of the equities” test that the court used.
You can read more on irreparable harm on page 58 of the court filing, and they also give their reasons for granting relief, what the relief specifically entailed, and the exact standards they used and relevant case law to those standards.
You’ll note one of the reasons for granting relief is that Musk was doing immense reputational damage against individuals within the agency by calling it evil and other such hyperbole.
[...]But you must be super mad about conservative activists filings lawsuits constantly in Amarillo, Texas, which is a single judge district.
This what this entire tangent boils down to, isn't it?
If I hold a standard to be only for everybody else, then it isn't a standard. I'm just being partial.
This what this entire tangent boils down to, isn't it?
If I hold a standard to be only for everybody else, then it isn't a standard. I'm just being partial.
I don't know why you imagine i don't want forum shopping to be solved for every party (not only political party, every party in the judicial process), when i proposed to randomize nationwide when you file in federal court i thought that was implicitly obvious.
And btw there isn't only hyper-partisan testing of the limits of the constitution at play.
There are stuff like patent litigation which were insane, like 25% of national cases were tried by a single specific judge in Waco, Texas recently, before they started to randomize inside that district (among 12, better than nothing).
I would have to look at each ruling individually. But I suspect that I would agree with the reasoning in the large majority of cases.
The pandora's box already is open. But I'm not terribly concerned about retribution. Democratic presidents in my lifetime (and Republican presidents other than Trump) historically have avoided doing a bunch of blatantly unconstitutional stuff. There always will challenges, and some actions always will be deemed unconstitutional. But Trump is the first president
In some areas yes, in others not so much. Biden was advised very clearly by legal experts *on his side* repeatedly about the massive, transparent, obscene unconstitutionality of significant portions of his debt relief package and he went away with it anyway.
The attempt of course was to test the limit of what he could do, that's not different from what trump is doing to test the constitutionality of impounding & unitary executive theory, and the limits of the application of some rarely-used laws that delegate huge (for me excessive) powers to the executive, that are in the books and weren't tested extensively in courts.
Perhaps the most blatant attempt to violate the constitution by trump is the birthright citizenship EO. But again that's a clear cut case where courts can stop the effects immediatly during litigation (and keep in mind even rabid critics on the right didn't denounce those injunctions as a violation of judicial powers) , and we just need SCOTUS to express itself one time in very clear terms about the meaning of "under the jurisdiction" and we are done there.
I would have to look at each ruling individually. But I suspect that I would agree with the reasoning in the large majority of cases.
The venezuelan deportees case lingers basically on if Trump can invoke the Alien Enemy Act or not absent a war, with the law saying invasion or incursion qualify as well. That's the sort of thing judges shouldn't be allowed to evaluate in the injunction phase i guess.
But at least stopping people from being deported for a while isn't irreparable damage for the government (aside from the small, for a gvmnt, money paid to keep them here while we wait for litigation), unlike forcing it to pay billions to parties before litigation which won't be recouped in case the government wins in court (the case that went to SCOTUS which you followed in detail and that you explained to me in it's passages).
They are going truly crazy
Post
See new posts
Conversation
Benjamin Weingarten
@bhweingarten
The chief irony of Chief Justice John Roberts’ tenure at the Supreme Court is that the man so doggedly devoted to defending the judiciary has done so much to undermine it. In so doing, he has threatened not only the court’s legitimacy but the republic itself.
His latest such act wasn’t an abomination of a ruling on the level of Obamacare, the census citizenship question, or DACA; a faulty probe into a devastating leak; or a defense of the indefensible censorship-industrial complex. It was a terse three-line statement that may prove the most consequential — and corrosive — move of them all.
I explain in a new piece
@FDRLST
Lol, how many garbage accusations can you fit in an opinion piece.
They are going truly crazy
Post
See new posts
Conversation
Benjamin Weingarten
@bhweingarten
The chief irony of Chief Justice John Roberts’ tenure at the Supreme Court is that the man so doggedly devoted to defending the judiciary has done so much to undermine it. In so doing, he has threatened not only the court’s legitimacy but the republic itself.
His latest such act wasn’t an abomination of a ruling on the level of Obamacare, the census citizenship question, or DACA; a faulty probe into a devastati
Remember when Biden introduced SC reform and the Republicans said he was trying to destroy the independence of the court? lol
The "faulty probe into a devastating leak" was the most insane one, as if it was Roberts personal responsibility to find the leaker of the roe reversal opinion, like in a c series tv show where the character becomes a lead investigator and is smarter than the best professionals and finds the guilty parties.
Anyway, that's the mood on the "actually rightwing" side since ACB was the fifth vote for the recent SCOTUS decision that forced trump to pay the 2 billions
Remember when Biden introduced SC reform and the Republicans said he was trying to destroy the independence of the court? lol
Well the code of conduct proposal was non-sensical, for it to be binding it would require another institution to adjudicate failures to abide to it which , in fact, would mean SCOTUS losing it's independence.
The "18 years term limit", and every president has 2 appointment makes sense on paper but transitioning to it is impossible in a sense if you aren't making the court from scratch, i am not sure what the transitory proposal about that was. How to reach the point where every appointed judge is term limited and a slot opens every 2 year from where we are now? very unclear.
Companies that I have worked for and with have made numerous, costly mistakes when setting arbitrary rules on retirement or tenure. Sometimes it simply repeated a mistake it had made previously. Others were new follies that would not have been attempted if the guy that hatched the idea was more seasoned.
I don't like the idea of arbitrary limits as a result.
The "18 years term limit", and every president has 2 appointment makes sense on paper but transitioning to it is impossible in a sense if you aren't making the court from scratch, i am not sure what the transitory proposal about that was. How to reach the point where every appointed judge is term limited and a slot opens every 2 year from where we are now? very unclear.
Simple, it would just change it so that there wasn’t a set limit to the amount of sc justice and they wouldn’t be appointed based off of that time frame and not upon death.
I mean it would just be another check on the sc presumably? Checks and balances are all over the constitution. Just like impeachment/conviction is in the hands of the legislative branch.
