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.
And the fifty years of following starie decisis? Were those acts that treason by the court members that deserve the harshest possible punishment?
fifty years of leftists agreeing with leftists have 0 value for non leftists.
no treason, all legal.
you just reverse it and then if the People, the only actual sovereign which should make all the calls, want a right to privacy in the constitution, they amend the constitution, which is or should be the ONLY way any significant change happens in society rules.
in a perfect world SCOTUS decisions are never significant, never change anything big, ever.
Since, Nixon, 13 of the last 17 supreme Court justices were appointed by Republicans. So rail all you want about the leftists, the courts that upheld stare decisis until the clowns took over after the Trump Appointees were conservatives.
Since, Nixon, 13 of the last 17 supreme Court justices were appointed by Republicans. So rail all you want about the leftists, the courts that upheld stare decisis until the clowns took over after the Trump Appointees were conservatives.
Burger was appointed by Nixon but was the most radical leftist of them all, and people on the left celebrate the Burger court "successes" at raping the constitution in every possible orifice.
the Burger court should have started by reversing every major outrageous decision by the Warren court if it was even centrist.
they never did.
the Burger court allowed systemic racism (affirmative action) in colleges with Bakke, as per leftist ideology.
helped the deep state coup against Nixon in US vs Nixon.
raped the 1st amendment with Miller (yes leftists were social conservatives on some matters at the time)
yes they reversed / clarified the Fulman death penalty moratorium insanity in Gregg v Georgia
Burger was appointed by Nixon but was the most radical leftist of them all, and people on the left celebrate the Burger court "successes" at raping the constitution in every possible orifice.
the Burger court should have started by reversing every major outrageous decision by the Warren court if it was even centrist.
they never did.
If you believe that Burger was the "most radical leftist" in the history of the SCOTUS, you are very mistaken.
fifty years of leftists agreeing with leftists have 0 value for non leftists.
no treason, all legal.
you just reverse it and then if the People, the only actual sovereign which should make all the calls, want a right to privacy in the constitution, they amend the constitution, which is or should be the ONLY way any significant change happens in society rules.
in a perfect world SCOTUS decisions are never significant, never change anything big, ever.
Aren't we supposed to preserve what's worked? Even if something was decided wrongly, after 50 years of people getting used to it and not causing people outrage, seems like a good case for letting the ruling stand. Otherwise it sounds just like the supposed sins of progressivism, ruling to get an outcome one prefers without regards to the wisdom of society.
Aren't we supposed to preserve what's worked? Even if something was decided wrongly, after 50 years of people getting used to it and not causing people outrage, seems like a good case for letting the ruling stand. Otherwise it sounds just like the supposed sins of progressivism, ruling to get an outcome one prefers without regards to the wisdom of society.
define worked.
societal outcomes don't matter in the slightest to define what works legally.
adherence to the actual law is the ONLY thing that matters.
you don't need to keep the outrageously wrong judicial decision in place if it worked very well btw: people can change the constitution!!!!!!!! it's allowed, it's encouraged, it's what founding fathers did themselves with the bill of rights!
you know what the point is. simple majorities of the population (and/or of states) would agree with something, but not enough people/states to amend the constitution.
so you are sad something 54 or 59% of American want, can't become the law of the land.
guess what, super majorities requirements to change the rule of the land exist as a feature not as a bug. it's good, really good, that simple majorities can't get what they want easily. it's a fundamental feature to make it far harder to get a "dictatorship of the majority".
and so you have to preserve that essential element everywhere. including with stuff you think is proper and moral but "only" 29 states agree with it, or 56% of the population.
that's the price to pay to avoid 26 states waking up wanting to murder the other 24
(btw I am strongly in favour of a constitutional amendment that forces the filibuster as a rule for the Senate).
progressive judicial philosophy disregards the existential risks of allowing a simple majority to change the rules of the land.
oh btw I would also be in favor of 6-3 needed in SCOTUS to overturn a SCOTUS precedent
William Brennan wasn't appointed by Nixon, but he was on the court through 1990. I can assure you that he was far, far more liberal than Warren Burger.
man them all, the 17 nominated since Nixon.
i was answering a post claiming 13/17 were nominated by republicans since Nixon, and that according to jijou means the court is right-wing since 1968.
Yeah, all the leftist Reagan/Bush appointees really expanded the Constitution in Citizens United.
Yeah, all the leftist Reagan/Bush appointees really expanded the Constitution in Citizens United.
it was the literal only decision I listed above which people might find issues with (I don't, I love the first amendment).
can you come up with like 25 more to make even with what the left did since korematsu?
it was the literal only decision I listed above which people might find issues with (I don't, I love the first amendment).
can you come up with like 25 more to make even with what the left did since korematsu?
I know you love the Korematsu case as your Lozen whataboutism response but the case never faired well after it was issued in 1944. You sure have to dig deep for such an example. How about naming another "leftist" decision that trampled on the individual rights from the last 80 years.
Who cares what the founding fathers meant about the 2nd amendment, 75 years before the Gatling gun. I donÂ’t think asking what they would do about ak47s, hand grenades and drones firing missiles gives you the answers to such modern day issues.
Yeah, that is where they don't want to use original intent. The founders could not have meant that it must be legal to own any kind of weapon that didn't exist at the time.
But of course, if they didn't want to consider that (and they wanted to ignore the part about a well regulated militia), then why shouldn't civilians be allowed to own tanks and bomber jets and nuclear bombs and ICBMs?
They're all "arms", right?
I guess it's just a coincidence that the SC has decided that any weapon the gun lobby likes is legal, while those other things are illegal.
I know you love the Korematsu case as your Lozen whataboutism response but the case never faired well after it was issued in 1944. You sure have to dig deep for such an example. How about naming another "leftist" decision that trampled on the individual rights from the last 80 years.
All the commerce clause insanities starting with Wickard v Filburn (1942).
The individual right not to be regulated in your economic activities by the feds, and so to be free to move in the state that most came close to your preferred rules, got annihilated by that chain of SCOTUS decisions.
With an overarching unavoidable regulatory framework working for all the nation, against the division of power of the constitution, by abusing a clause intended uniquely to force a state to allow goods and services produced in other states to be sold there, and to REDUCE frictions to internal trade, people lost a ton of freedom.
States competing with each others for business and taxpayers previously made it impossible to regulate too much.
With that judicial coup states were stripped of most of their autonomy and the federal government gained immense power at their expenses. And as with all centralization of power, individual freedoms suffered immensely as a consequence.
Most of the New Deal was blatantly unconstitutional, the FDA is unconstitutional, the war on drug (domestically) is unconstitutional, EPA is unconstitutional and so on and on.
The federal government has no enumerated power to regulate production of anything.
Commerce means trade in the constitution
it was the literal only decision I listed above which people might find issues with (I don't, I love the first amendment).
Sure, strict scrutiny used to give corporations more rights than citizens and their elected representatives to control dark money in elections reflects the the intent of the framers.
All the commerce clause insanities starting with Wickard v Filburn (1942).
The individual right not to be regulated in your economic activities by the feds, and so to be free to move in the state that most came close to your preferred rules, got annihilated by that chain of SCOTUS decisions.
With an overarching unavoidable regulatory framework working for all the nation, against the division of power of the constitution, by abusing a clause intended uniquely to force a state to allow goods and ser
So that is none?
The battle between the state and federal governments using the commerce clause are are not examples of the left trampling in the individual rights enumerated in the Constitution. But you have all the post Mapp and Miranda cases and now Dobbs championed by the right wing nutters.
Sure, strict scrutiny used to give corporations more rights than citizens and their elected representatives to control dark money in elections reflects the the intent of the framers.
The outcome of a decision doesn't matter in any way or form when you discuss it's constitutionality.
The framers had no intention to allow government to ban the publication of a book if it talked in favour of a candidate and the publication was close to the elections.
Which is what instead the government claimed in the oral arguments.
Freedom of the press isn't limited to a single individual activing privately. It encompasses associations of individuals (unions as well, not only corporations, and others).
It's incredible there are rules in the first place about which political communication is allowed.
You should focus on the tax exemption though, that has nothing to do with the constitution. Free press doesn't mean tax subsidized press.
You want to limit "dark money" constitutionally? remove the tax exemption for political donations in full, for everyone.
So that is still zero cases since Korematsu?
No one is asking you to how to fix our dark money issues.
So that is none?
The battle between the state and federal governments using the commerce clause are are not examples of the left trampling in the individual rights enumerated in the Constitution. But you have all the post Mapp and Miranda cases and now Dobbs championed by the right wing nutters.
Lol? state rights are individual rights, i explained why. Individuals lose the right to have states competing on freedom for their tax dollars. Giving the feds the power to abuse everyone with regulations is a trampling of individual rights not to be regulated by people not living in their state, as stated in the 10a.
In general, of individual rights not to give a **** about the political opinion of people living in another state, because outside of very few things the constitution doesn't give the federal government generic power over americans. The vast majority of the laws, of the freedom limitations, that have to apply to people should be decided by the state not by the federal government, according to the constitution.
The 10a is in the bill of rights for a reason, because it's the overarching individual right protection. Violations of the 10a are some of the worst possible violations of individual rights.
Dobbs doesn't touch any enumerated right, there is no right to abortion in the federal constitution.
We disagree that States rights are the same as individual rights nor do I know of any constitutional scholars who would agree with this claim. Being controlled by a state govt or a federal govt has little to no difference - just a different elected body telling you what to do.
Obviously, Dobbs shot down the 50 years of cases based on stare decisis of the penumbra of privacy. No claim was made that abortion was an enumerated right. So your point on Dobbs was what?
We disagree that States rights are the same as individual rights nor do I know of any constitutional scholars who would agree with this claim. Being controlled by a state govt or a federal govt has little to no difference - just a different elected body telling you what to do.
Obviously, Dobbs shot down the 50 years of cases based on stare decisis of the penumbra of privacy. No claim was made that abortion was an enumerated right. So your point on Dobbs was what?
Tha dobbs didn't remove any right because there wasn't any right to begin with. Dobbs removed a limitation of state rights in deciding how much to allow abortion. And you can move to where the state regulates abortion in a way you like.
Something you can't do to avoid the effects on your life of commerce clause abuses.
the difference is enormous, and you know it. California wants to ban fossil fuel cars? they do, Texas (for ex) doesn't, you can move. EPA decides to ban fossil fuel cars, no way to avoid that. Totally different and you know it. A smaller elected body in competition with 49 other elected bodies over citizens results in at least one state being very very close to your preferences, much more than it can be possible with only one elected body as the decision maker.
The freedom to vote with your feet is one of the most fundamental freedoms in the USA, and commerce clause abuses infringe on that.
Keep in mind that it works for abortion as well, under the leftist abusive reading of the constitution, they can ban abortion drugs nationally do you realize that? which they shouldn't be allowed to do, constitutionally.
If states rights and individual rights are the same thing, why do state constitutions mimic the Federal Constitution and give the same individual rights. Seems like we have an amendment that also deals with this issue....
