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.
the lack of any concept of originalism is my point. they just made a very obvious textually self executing section of an amendment non-self executing because they didn't like the idea of the result. i don't even think the outcome was wrong in terms of real world effect, but it's very obvious that: "No person shall.... But Congress may..." is self executing text.
There is no self execution if the criterion isn't objective. The age criterion is objective. Can't self-execute until you have a clear definition of what an insurrectionist is, which might or might not apply to Trump for example.
Who gets to decide who is an insurrectionist was the question.
There is no self execution if the criterion isn't objective. The age criterion is objective. Can't self-execute until you have a clear definition of what an insurrectionist is, which might or might not apply to Trump for example.
Who gets to decide who is an insurrectionist was the question.
even if that were the case. congress decided by a majority vote in both houses that Trump incited an insurrection. the text says nothing about being found guilty or impeached or any such language.
even if that were the case. congress decided by a majority vote in both houses that Trump incited an insurrection. the text says nothing about being found guilty or impeached or any such language.
I never mentioned a guilty convinction being required, nor SCOTUS did.
But something, some entity, must certify the "insurrectionist" status right? so there is no automatism. The question was "which something?" and the answer is congress by passing a law, not by counting votes during an impeachment proceedings, according to this SCOTUS. 9-0, so all the range of judicial philosophy.
How that's against originalism, you tell me.
I never mentioned a guilty convinction being required, nor SCOTUS did.
But something, some entity, must certify the "insurrectionist" status right? so there is no automatism. The question was "which something?" and the answer is congress by passing a law, not by counting votes during an impeachment proceedings, according to this SCOTUS. 9-0, so all the range of judicial philosophy.
How that's against originalism, you tell me.
you want me to tell you how adding extra steps into the language of the constitution that weren't thought to be needed at time of drafting isn't originalism?
you want me to tell you how adding extra steps into the language of the constitution that weren't thought to be needed at time of drafting isn't originalism?
isn't textualism, but it can be originalism.
Originalism isn't textualism.
Originalism means "you have to interpret the text everytime it's not-obvious , as it would have been interpreted by the people who wrote it and who voted on it".
here a paper explaining the difference between the 2
isn't textualism, but it can be originalism.
Originalism isn't textualism.
Originalism means "you have to interpret the text everytime it's not-obvious , as it would have been interpreted by the people who wrote it and who voted on it".
here a paper explaining the difference between the 2
its neither. the drafters didnt need it to be interpreted. they knew. zebulon vance was barred from office until amnesty was passed. they didnt need an extra determination.
Another 9-0 decision on a other fairly complex topic, this time the right (or lack thereof) of a politician (or public official in general) to block people on social media.
Looks like the kind of nuanced, well thought opinion we do expect by actual experts on an actually unclear topic constitutionally
https://www.scotusblog.com/2024/03/publi...
So much for polarization in everything I guess
Another 9-0 decision on a other fairly complex topic, this time the right (or lack thereof) of a politician (or public official in general) to block people on social media.
Looks like the kind of nuanced, well thought opinion we do expect by actual experts on an actually unclear topic constitutionally
https://www.scotusblog.com/2024/03/publi...
So much for polarization in everything I guess
9-0 decisions are much more common than the general public imagines.
the case against mifepristone seems doomed, but it will be very relevant anyway depending on if/how scotus will address several questions arising from this case
This is good
https://unherd.com/newsroom/will-the-med...
And my Facebook and Twitter feeds were full of people blaming the conservative court for the Trump decision
This is good
https://unherd.com/newsroom/will-the-med...
And my Facebook and Twitter feeds were full of people blaming the conservative court for the Trump decision
This is your proof? A few liberals and a staunch conservative predicting before the decision that Trump would lose? (FWIW, I never agreed with Luttig on this point.)
I can't speak to your Facebook friends and the people you follow on Twitter, so whatever as to that point.
I didn't see any SCOTUS commentators blaming that decision on a "conservative" Court.
We don't even know if the SCOTUS will decide to hear the case. If it does, there is some chance that the SCOTUS will somehow narrow the DC Circuit's reasoning. But there is virtually no chance that the SCOTUS will hold that Trump is protected from prosecution on grounds of double jeopardy or presidential immunity.
The best case scenario for Trump is that he loses 7-2, and a 9-0 opinion against him is infinitely more likely than the Court ruling in his favor. I honestly think that Trump's chan
Still convinced of this rococo?
Yep. I said there was some chance that the SCOTUS would narrow the DC Circuit's reasoning. After the argument, I would rate that possibility as more likely than not. I still think there is a 100% chance that the Court will reject the argument that Trump advanced in the lower courts that a president enjoys blanket immunity for all actions taken during the time that he is president. I haven't read a transcript, but based on the reporting, it sounds like Trump's attorneys more or less have conceded this point.
I do think there is an excellent chance that the ruling will result in delay because there are likely to be additional decisions at the lower court level about whether specific allegations relate to "official acts." But there is zero chance that the SCOTUS rules in a way that substantively eviscerates the prosecution's case.
Trump's argument below was that presidential immunity meant that he couldn't be prosecuted even if he shot his secretary in the head five minutes before he left office. There was no way that the Supreme Court would ever endorse that view of presidential immunity.
well if part of the indictment gets thrown off because some of the alleged acts are covered by presidential immunity that's not just a narrow decision on the scope of presidential immunity that doesn't affect trump, that's material to trump case and not only because of delay, it gets off some charges.
ofc the full immunity from everything done in the 4 years was never going to exist, but let's see what's if anything, the court decides is covered by actual immunity.
all Public communication might for example (or not).
btw the "can't be prosecuted for anything" was just one of many lines of the defense
well if part of the indictment gets thrown off because some of the alleged acts are covered by presidential immunity that's not just a narrow decision on the scope of presidential immunity that doesn't affect trump, that's material to trump case and not only because of delay, it gets off some charges.
It depends.
all Public communication might for example (or not).
Very unlikely imo.
btw the "can't be prosecuted for anything" was just one of many lines of the defense
I know. I'm the one who actually read the DC Circuit opinion, not you.
Unfortunately many people underestimated the partisan ship of the current court. (I didn't.)
Trump could shoot someone on Fifth Avenue and at least 4 SC justices would use any excuse they could to let him off.
Just heard excerpts of the recent SC hearings on the trail.
The main Trump lawyer said that the president may be immune from assassinating his political opponents!
President Biden should immediately order the assassination of that lawyer, seems like that would send a good signal to get the SC back into the real world. If it seems necessary that more is needed, tell the "justices" appointed by Trump that he will have their grandchildren tortured in front of them if they rule that the president can do anything he likes.
Supreme Court 'openly colluding' with Trump
The one thing I find so difficult to stomach in all of this -
is the self-satisfied, smug, 'you can't touch us', expressions on these men's faces.
It says everything about how they see themselves - not an once of humility or
grace in any of them. Jurors they may be, servants of the constitution, they are not.
The last king that believed in total immunity was separated from his head in 1649.
