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 SCOTUS is neither as a apolitical as you would like to believe nor as obscenely political as some critics would have you believe.
There are boundaries to the influence of politics on SCOTUS decisions no matter who is on the court. Also, many cases before the Court do not have an overt political component. For those reasons, it isn't that unusual to see 8-1 or 9-0 decisions, although it is less common than it was 40 years ago.
This SCOTUS isn't a-political, it's that rightwing politics adhere to the constitution a lot more than leftist politics.
This was political as most 2a decisions are. The 5th threw the ball politically and this SCOTUS correctly said lol no (same as with the abortion drug decision)
This SCOTUS isn't a-political, it's that rightwing politics adhere to the constitution a lot more than leftist politics.
This was political as most 2a decisions are. The 5th threw the ball politically and this SCOTUS correctly said lol no (same as with the abortion drug decision)
And you cite the Lochner era decisions for that principle? That's a two-fisted head grabber.
And you cite the Lochner era decisions for that principle? That's a two-fisted head grabber.
I cite the lochnet era decisions for that principle for the commerce clause. I agree on the rest with you wrt expansive readings of the 14a.
The expansive reading allowed blocking economic-limitating decisions of STATES, that i agree wasn't the textual proper reading of the constitution.
But the federals can't regulate anything in the constitution in a restrictive sense with the commerce clause which is (was) only about not letting a state block stuff produced in another state.
Like the commerce clause literal reading doesn't allow any federal regulation to commerce which limits any activity of producers at all.
Regulating TRADE (that's what commerce means in the constitution) means state regulations can't interfere with the flow of goods between states, production methods, workers right and so on don't even enter the picture, ever, at all.
Lochner era starts with SCOTUS killing a Louisiana regulation (under the 14a). That's an expansive legislation from the bench sure.
But saying to the federal government regulating trade doesn't mean you can regulate anything that in any way or form affects the production of goods, only against that which would restrict it or it's flow between states, is the only proper reading of the plain text of the commerce clause.
So back to my claim, in the Lochner era the commerce clause specifically (not the whole constitution) was applied as written & intended by founders, unlike in the following decades with the abusive disasters of leftist legislating from the bench.
So it is *not true* that the USA became a superpower thanks to an all-powerful federal regulatory state, as the claim that i responded to insisted.
The USA became a superpower without almost any federal regulatory power in place (except antitrust) . So massive centralized regulatory powers objectively played no role in the USA becoming a superpower.
I don't my argument was that the commerce clause made the US a superpower, as I relate that term to nuclear weapons and military projection around the globe. What I meant was a strong federal govt lead to the rise of the US as a nation as it rejected the idea of states rights being controlling at the national level.
So are you arguing the expansive use of the commerce clause was a leftist operation that you find fault with?
I cite the lochnet era decisions for that principle for the commerce clause. I agree on the rest with you wrt expansive readings of the 14a.
The expansive reading allowed blocking economic-limitating decisions of STATES, that i agree wasn't the textual proper reading of the constitution.
But the federals can't regulate anything in the constitution in a restrictive sense with the commerce clause which is (was) only about not letting a state block stuff produced in another state.
Like the commerce cl
You need to wrap your head around the notion that those Lochner era decisions had very little to do with a restrictive reading of the Commerce Clause.
And during the Lochner era, the Commerce Clause was not interpreted in the way you imagine.
You need to wrap your head around the notion that those Lochner era decisions had very little to do with a restrictive reading of the Commerce Clause.
And during the Lochner era, the Commerce Clause was not interpreted in the way you imagine.
Really?
https://www.oyez.org/cases/1900-1940/247...
Facts of the case
The Keating-Owen Child Labor Act prohibited the interstate shipment of goods produced by child labor. Reuben Dagenhart's father -- Roland -- had sued on behalf of his freedom to allow his fourteen year old son to work in a textile mill.
Question
Does the congressional act violate the Commerce Clause, the Tenth Amendment, or the Fifth Amendment?
Conclusion
Sort: by seniority by ideology
5–4 DECISION FOR DAGENHART
MAJORITY OPINION BY WILLIAM R. DAY
The Keating-Owen Child Labor Act was outside the Commerce Power and the regulation of production was a power reserved to the states via the Tenth Amendment
The bold is LITERALLY what i have been talkign about. Simply not a federal power. Not the fed business.
Reasonable people can disagree about the wisdom of reading implicit rights into the Constitution, but there is no way to interpret Lochner and its progeny as anything other than an example of exactly that.
Robert Bork called Lochner "the symbol, indeed the quintessence, of judicial usurpation of power".[6] In his confirmation hearings to become Chief Justice, John Roberts said: "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law."
Really?
https://www.oyez.org/cases/1900-1940/247...
Facts of the case
The Keating-Owen Child Labor Act prohibited the interstate shipment of goods produced by child labor. Reuben Dagenhart's father -- Roland -- had sued on behalf of his freedom to allow his fourteen year old son to work in a textile mill.
Question
Does the congressional act violate the Commerce Clause, the Tenth Amendment, or the Fifth Amendment?
Conclusion
Sort: by seniority by ideology
5–4 DECISION FOR DAGENHART
MAJORITY OPINION BY
You of course can find some decisions from the first half of the 20th century that invalidate legislation based on the Commerce Clause. Schecter is another such decision. But by and large, the Lochner line of cases are cited for an expansive reading of the 14th amendment.
And I assure you that the Commerce Clause was not interpreted in the 1920s and 1930s as narrowly as you imagine.
Viceversa, the case which is used to consider the Lochner era finished, is... a commerce clause case.
The "switch in time that saved nine" was throwing the only proper interpretation of the commerce clause to the wind in the attempt to save the court from the assault of FDR .
It wasn't West Coast Hotel Co. v. Parrish (the STATE min wage case, which was going back to the proper reading of the 14a), rather National Labor Relations Board v. Jones & Laughlin Steel Corporation (same year, 1937)
Facts of the case
With the National Labor Relations Act (NLRA) of 1935, Congress determined that labor-management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the national government. The National Labor Relations Board (NLRB) charged Jones & Laughlin Steel Co. the country’s fourth largest steel producer, with discriminating against employees who were union members.
Question
Was the NLRA consistent with the Commerce Clause?
n an opinion written by Chief Justice Charles Evans Hughes, the majority found that companies cannot discriminate against employees for exercising their fundamental right to unionize. The Court upheld the Act, reasoning that it was narrowly constructed so as to regulate industrial activities which had the potential to restrict interstate commerce. The majority stated that any significant effect (direct or indirect) on interstate commerce allows Congress to regulate an activity under the Commerce Clause. While the manufacturing process or relationships between labor and management may not have a direct impact on the flow of goods, they have an aggregate impact on commerce. In this case, the potential secession of manufacturing activity due to conflicts between management and labor could potentially impede interstate commerce. However, Hughes carefully limited the opinion to exclude situations in which an activity had such an inconsequential or remote impact on interstate commerce that it exclusively impacted local matters.
In dissent, Justice McReynolds questioned Congress's enhanced power under the Commerce Clause.
The bold was the complete raping of the clause
Reasonable people can disagree about the wisdom of reading implicit rights into the Constitution, but there is no way to interpret Lochner and its progeny as anything other than an example of exactly that.
again can you please talk *exclusively* about the commerce clause? i haven't claimed lochner era didn't include a lot of judicial activism and i already agreed wrt 14a expansive readings.
For the commerce clause the lochner era was the only one when it was properly applied as intended.
You of course can find some decisions from the first half of the 20th century that invalidate legislation based on the Commerce Clause. Schecter is another such decision. But by and large, the Lochner line of cases are cited for an expansive reading of the 14th amendment.
And I assure you that the Commerce Clause was not interpreted in the 1920s and 1930s as narrowly as you imagine.
The above isn't a corner case of strange applicability, it's the clear cut declaration that the commerce clause doesn't allow ANY say in the production process. At all.
What's more black & white than child labor laws? if the federal government can't regulate that in the production process, it can't regulate anything that isn't trade-related.
For the commerce clause the lochner era was the only one when it was properly applied as intended.
And for the thousandth time, even during the Lochner era, the Commerce Clause was the basis for a lot of legislation that did not obviously deal with what you would think of as interstate commerce.
In any case, at least for now, I'm done arguing with you about U.S. constitutional law with you. Believe what you want.
And for the thousandth time, even during the Lochner era, the Commerce Clause was the basis for a lot of legislation that did not obviously deal with what you would think of as interstate commerce.
In any case, at least for now, I'm done arguing with you about U.S. constitutional law with you. Believe what you want.
The only (apparently) extended applications of the commerce clause during the lochner era were about the Sherman act.
But conspiracies to reduce the amount of trade are, in fact, about trade (ie commerce), so covered by the commerce clause in it's original meaning.
If you have other decisions on mind 1897-1937 pls name them
the court just made some veeeeery interesting choices about several important cases (no I don't agree with them all), the tl dr is Gorsuch is one of the best judges in the history of humanity, and this court is very very very very VERY weird.
Already better than Scalia.
I think no one would have predicted a 5-4 with 4 conservatives + Jackson deciding ANYTHING. I surely wouldn't.
but it happened for a very interesting case (Purdue bankruptcy legal shield).
and many other very interesting decisions including the first nail in the coffin of the horrible, monstrous, horrific, and completely unconstitutional regulatory federal state which ideally should he completely dismantled , but you have to start somewhere.
SEC vs Jarkesi is awesome, it reversed s total rape of the constitution from 50y ago, and re instated the basic, uncompromised principle that only the judiciary can punish you for alleged violations of rules or laws.
anyway Gorsuch incredible, a unique specimen, a hero.
Barret terribad, she loves the state too much.
kavanaugh as bad as expected: the bootlicker of bureaucrats which can side on the law and principle at times but just a zombie paper shuffler.
Jackson far far better than expected, shocking even.
Even her dissents were sharp as hell and thought provoking for people who disagree. awesome for a leftist, shocked really at her , and the team she picked.
many headlines on media are totally wrong. the 1a social media case has been sent back for lack of standing, SCOTUS did Not rule in favour of government censorship for example.
the EPA is unfortunately still alive even if by a thin margin they kept it at bay when it tried blatantly outrageous abuses.
emergency abortion isn't allowed by law unfortunately (in hospitals taking medicare/medicaid money), again a case sent back to lower courts.
Judges aren't necessarily all objective. There can be a pattern of trying to stretch the law to achieve political outcomes.
That's what leftists judges do BY DESIGN TRANSPARENTLY every single time they have the chance to be clear, that's their explicit judicial ideology. That trying to achieve a social justice outcome from the bench is always moral, and an imperative, the law can be damned. And they have shown it like, now, again, 3 votes to allow the ATF to make up the law because they think th
Luciom, most people usually claim to be objective. Judges are particularly required to interpret and follow the law objectively. I don't find left or right affiliated judges to be any more or less than objective as they're all required to be. Of course, what or who is or isn't being “objective” is dependent upon who's doing the evaluation.
From the tone of your post, I doubt if I would consider your evaluation of who's a leftist judge, or the objectivity of their manners of presiding in their courts, or their determinations, to be objective evaluations.
But I suppose even if you knew me well, you're unlikely to consider my opinion as an objective opinion. Respectfully, Supposn
I am using the standard definition, linked to the president who nominated them.
Neutral commentators consider the current court to have 6 conservatives and 3 liberals.
Ofc there is a lot of nuance among them , especially in this term, where we saw mamy "crossovers" of political lines
I think no one would have predicted a 5-4 with 4 conservatives + Jackson deciding ANYTHING. I surely wouldn't.
but it happened for a very interesting case (Purdue bankruptcy legal shield).
This doesn't surprise me much. As I have said a million times, not all cases have an overt political dimension.
Jackson far far better than expected, shocking even.
Even her dissents were sharp as hell and thought provoking for people who disagree. awesome for a leftist, shocked really at her , and the team she picked.
What do you mean by the bolded? Are you referring to her clerks? I'm sure that her clerks were excellent law students (it's a a job requirement), but other than that, I don't know anything about them, and I highly doubt that you do either.
And... the regulatory horrors of the leftists who raped the constitution for decades stop NOW.
Bye bye Chevron.
Now we need a very much expanded application of the non delegation doctrine and we are good.
And... the regulatory horrors of the leftists who raped the constitution for decades stop NOW.
Bye bye Chevron.
Now we need a very much expanded application of the non delegation doctrine and we are good.
so you dont believe its congress and the people elected that should makes the laws but the judges ?
how was the constitution raped ?
so you dont believe its congress and the people elected that should makes the laws but the judges ?
how was the constitution raped ?
in the USA specifically, it's mostly state legislatures. not the federal congress whose powers should be, according to the constitution, strictly limited to what is expressely listed, every other power staying with the states (10 a).
if the federal congress can regulate something, they should do it's not delegate it generically to a new entity outside the direct control of voters every two years (executive one with civil unelected servants empowered in any way to decide what's legal and what is not). those entities can only exist as mere executors of the will of the people with no agency.
when the federal congress can regulate something , and it decides to delegate the execution of those regulations in a strict way to a entity created for the purpose, and there is any ambiguity about the details of the applicability of the statute, it's courts that have to determine what is what, never the agency itself.
we solved the last part, we still need to solve the other 2.
the constitution was systematically raped when vague statutes were allowed to be used by unelected civil servants working in executive agencies as excuses to regulate what they wanted the way they wanted.
An horror show of abuse of the separation of powers
why cant we have congress check and balance agencies?
i don't think private nor just judicial should have 100% sway and lay rule. however its nice to have peopel who know their craft and know their profession to have a say as long as they aren't bought..
for example, I am slightly uneasy about BOEING just being able to regulate themselves more so than in the past
if this is a serious question. in my slightly educated but definitely not authoritative or experienced explanation.
there was a 40 year precedent that the judiciary should defer to agencies about their own rules since it was highly likely that the agency understood their own rules and regulations as subject matter experts better than random politically appointed judges. it was called chevron deference based on a 1984 case Chevron v Natural Resources Defense Council. it allowed federal agencies to basically fill gaps in the laws passed by congress. so if there was a hypothetical law that said "you can't pollute rivers" the EPA could then set standards like if you dump more than 35parts/million of chemical A into a body of water you are in violation and subject to fines. when someone challenged that the court would defer to the EPA that they understand the standards that need to be set(that 35parts/million was a correct limit) better than relitigating it in court.
conservatives hate all regulations so they have decided to take the approach that the constitution didn't entitle congress to delegate that authority. which would require congress to write infinite numbers of minutiae focused laws to outline every little detail themselves or it was entirely unenforceable.
striking it down basically makes the country a much crappier and unsafe place for people and a much better place for corporations to do whatever they want. the Supreme Court has essentially empowered article 3 judges to review any and all agency regulations and decide them on a whim individually and without order or balance. ~890 judges will be putting out who knows how many contradictory rulings as they see fit to interrupt agency rules and regulations. as Kagan put it, "the majority has turns itself into the country's administrative czar."
conservatives will argue that administrative agencies were over reaching, but that just simply isn't true in reality and there was still recourse for when you ran afoul of agency rules. even in chevron deference cases the government had something like a 70% win rate.
conservatives will also say that "we shouldn't let unelected administrative officials make regulations" but their answer to that is apparently to pass that authority to equally UNELECTED JUDGES....
free market absolutists/libertarians like the Italian will say silly things like "well people will stop buying from company A if they pollute the rivers so the market will make them not pollute". and that simply isn't based in any reality. we are absolutely in for worse water, air, and harmful environmental pollutants and that's just the start.
there are/WERE whole semester long classes taught about chevron deference in some law schools. full disclosure i did not take one and i do not practice admin law. my buddy that does practice admin law for a federal agency was basically like "i dont even know what we are supposed to do on monday now.. i guess we have to halt absolutely everything to assess the damage"
why cant we have congress check and balance agencies?
i don't think private nor just judicial should have 100% sway and lay rule. however its nice to have peopel who know their craft and know their profession to have a say as long as they aren't bought..
for example, I am slightly uneasy about BOEING just being able to regulate themselves more so than in the past
Because it worked so well in the past unconstitutional model?
And btw it isn't about Boeing "regulating itself".
