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.
Doesn't seem that difficult to me - just make the longest serving justice retire, one every two years, until no one has been there more than 18 years. If one dies or voluntarily retires in the previous two years, don't force anyone out that time.
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.
I didn't realize that you were making this proposal for all types of cases, and that you basically wanted to entirely rewrite the rules on personal jurisdiction in federal cases. On balance, I suspect that corporate defendants would hate your proposal. Generally speaking, the last thing they want to do is litigate in some backwater where they do little or no business.
I didn't realize that you were making this proposal for all types of cases, and that you basically wanted to entirely rewrite the rules on personal jurisdiction in federal cases. On balance, I suspect that corporate defendants would hate your proposal. Generally speaking, the last thing they want to do is litigate in some backwater where they do little or no business.
i mean I am very open to suggestions if you have another way to avoid forum shopping for federal cases, but yes I think it's obscene you can forum shop GIVEN for some kind of issues you know some judges are 80%+ of ruling in your favor and others are 20% or less.
ofc corporate would hate me they have their specific jurisdiction dissected and ready to try their cases more favourably than a random district judge would.
that's a deep violation of the actual concept of the rule of law in my mind.
my model here doesn't want to optimize for corporate, we need to build a robust system that is optimized to deal with a radicalized society trying to dismantle the rule of law, that's the core issue.
we are talking making the already incredibly solid American system even better to resist attempts to dismantle it. I am thinking in the really long term (centuries)
Doesn't seem that difficult to me - just make the longest serving justice retire, one every two years, until no one has been there more than 18 years. If one dies or voluntarily retires in the previous two years, don't force anyone out that time.
so you pass the amendments and then every republican in SCOTUS retires (let's say) and trump can reappoint all of them, how do you stagger them? some of them have like 8 years limits only? how do you write the transition amendments to deal with this possibility?
try to think every participant is hellbent on doing literally everything he legally can to maximize his tribe wins (that's how an Italian would think), how do you write the rules in a way they can't abuse them in the transition?
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.
pls elaborate the bold I am not sure what you mean there.
so you pass the amendments and then every republican in SCOTUS retires (let's say) and trump can reappoint all of them, how do you stagger them? some of them have like 8 years limits only? how do you write the transition amendments to deal with this possibility?
Dude, it's not that hard. There are nine designated terms. Sitting judges are placed by seniority to each term. If someone resigns the new justice only fills the remaining part of the term and can't be reappointed. There would also need to be a rule that nominees receive a straight up/down vote within 30 days of being nominated to prevent any shenanigans like we saw previously.
Dude, it's not that hard. There are nine designated terms. Sitting judges are placed by seniority to each term. If someone resigns the new justice only fills the remaining part of the term and can't be reappointed. There would also need to be a rule that nominees receive a straight up/down vote within 30 days of being nominated to prevent any shenanigans like we saw previously.
help me understand. you want 18y limits (like the Biden proposal).
Thomas has been in the court for 33 years,
Roberts for 19 years, Alito for 18.
let's say your Biden 18y limit becomes the law tomorrow.
What happens?
they should be grandfathered in and the SC can just have weird numbers of seats sometimes. it happens.
they should be grandfathered in and the SC can just have weird numbers of seats sometimes. it happens.
ok so how do you get the " free slot every 2 years" starting from the grandfathering?
you add slots? that's the idea? so basically it will never be agreed upon by the party that doesn't get to sit those judges right? that was my pragmatical objection
ok so how do you get the " free slot every 2 years" starting from the grandfathering?
you add slots? that's the idea? so basically it will never be agreed upon by the party that doesn't get to sit those judges right? that was my pragmatical objection
Doesn’t have to be a free slot, as there is currently no constitutionally prescribed number of SC justices. So it would just be 10+ judges until the currently appointed justices all end up dying out and then it would normalize back to 9 or less.
The only thing worse than a 5-4 decision from this court would be a 5-5 or 4-4 non-decision stalemate. Odd numbers only imo.
The only thing worse than a 5-4 decision from this court would be a 5-5 or 4-4 non-decision stalemate. Odd numbers only imo.
why do people say this? a non-decision doesn’t mean nothing will be decided, it will just be remanded to a lower court most likely. and there have been plenty of times where the court was not odd numbered.
so you pass the amendments and then every republican in SCOTUS retires (let's say) and trump can reappoint all of them, how do you stagger them? some of them have like 8 years limits only? how do you write the transition amendments to deal with this possibility?
try to think every participant is hellbent on doing literally everything he legally can to maximize his tribe wins (that's how an Italian would think), how do you write the rules in a way they can't abuse them in the transition?
No one has ever done that in the past, but you would just have fewer than 9 justices if more than two died or left in a single term.
help me understand. you want 18y limits (like the Biden proposal).
Thomas has been in the court for 33 years,
Roberts for 19 years, Alito for 18.
let's say your Biden 18y limit becomes the law tomorrow.
What happens?
It likely wouldn't start until the following presidential term, but if it had been passed under Biden -
Thomas and Roberts forced to retire at the beginning of this year, Trump nominates two new judges.
Alito gets four bonus years, not a big deal. If he or any other justice retires or dies in the next four years, the court only has 8 members until 2029.
help me understand. you want 18y limits (like the Biden proposal).
Thomas has been in the court for 33 years,
Roberts for 19 years, Alito for 18.
let's say your Biden 18y limit becomes the law tomorrow.
What happens?
This is seriously simple. Whatever the schedule that is part of the law, Thomas gets put in the initial two year slot. The rest slotted in by seniority. It doesn't take too much imagination to come up with a variety of ways to make the transition. Are you being intentionally dense?
Doesn’t have to be a free slot, as there is currently no constitutionally prescribed number of SC justices. So it would just be 10+ judges until the currently appointed justices all end up dying out and then it would normalize back to 9 or less.
I am willing to bet that the 2+2 poker brain trust can’t come up with any term limit legislation that 9 Supreme Court Justices and their Ivy League clerks can’t defeat and stay in power.
I am willing to bet that the 2+2 poker brain trust can’t come up with any term limit legislation that 9 Supreme Court Justices and their Ivy League clerks can’t defeat and stay in power.
We’re just talking about what the term limits would look like. Rest assured there is no way a constitutional amendment will happen for a long time.
This is seriously simple. Whatever the schedule that is part of the law, Thomas gets put in the initial two year slot. The rest slotted in by seniority. It doesn't take too much imagination to come up with a variety of ways to make the transition. Are you being intentionally dense?
no I am asking how you convince a party to accept any transition that helps the other party (in order to pass an amendment) that is in power and will fill the slots.
you need a vast bipartisan agreement for any modification of the structure right? give me a path toward that , that is sensible and will find agreement
Doesn’t have to be a free slot, as there is currently no constitutionally prescribed number of SC justices. So it would just be 10+ judges until the currently appointed justices all end up dying out and then it would normalize back to 9 or less.
ok so one parttt will have to agree to give 2 more SCOTUS judges to the other, because when the transition will happen there will be two slots to fill.
that is simply impossible, it will never happen, no party will ever give the other any such advantage, and no party has the what it is, 35 states, to pass an amendment.
you need to write down a transition that doesn't punish either party.
because the transition can mean 5, 10, 20 years of rulings that solidify into law one party judicial philosophy against the other.
who is gonna pay that price?
Now you're making a completely different argument. No one said this would be easy to pass.
ok so one parttt will have to agree to give 2 more SCOTUS judges to the other, because when the transition will happen there will be two slots to fill.
that is simply impossible, it will never happen, no party will ever give the other any such advantage, and no party has the what it is, 35 states, to pass an amendment.
you need to write down a transition that doesn't punish either party.
because the transition can mean 5, 10, 20 years of rulings that solidify into law one party judicial philosophy
We’re just talking about what the term limits would look like. Rest assured there is no way a constitutional amendment will happen for a long time.
Anyway that’s not really how the court has worked historically. A certain party can appoint judges but they don’t fall cleanly on one side of the spectrum or another. The most liberal court was chock full of Republican appointments.
Anyway that’s not really how the court has worked historically. A certain party can appoint judges but they don’t fall cleanly on one side of the spectrum or another. The most liberal court was chock full of Republican appointments.
in the semi-recent past for some time the two parties didn't divide under clear ideological lines yes.
but people learnt and nowadays nominees will be fully loyal tribe members dedicated uniquely flto further their tribe success.
nowadays if you agree with a republican on a controversial topics you literally can't be a democrat and viceversaz and it applies to judicial opinions as well.
