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.
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
If the people want this, it will happen. Why? Both Republicans and Democrats like getting elected.
If the people want this, it will happen. Why? Both Republicans and Democrats like getting elected.
is a majority of the people like it in 38 states or whatever it is to pass an amendment yes.
try to convince the median voter in Tennessee of a transition which doesnt help the republican party, or the median voter in Maryland of a transition that doesn't help the democratic party.
good luck
Under the system I described, I don't see how it would favor one party over the other. I don't think either party knows right now who is more likely to win the next presidential election.
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.
as much as people love to crap on the SC and they certainly deserve it at times I still believe that they have strong independence and Roberts is doing the best he can in a tough situation. I also think that they have found common ground and progress on a number of issues like civil asset forfeiture and qualified immunity. maybe more niche and less sexy but that’s what allows it to go under the radar for the masses.
Under the system I described, I don't see how it would favor one party over the other. I don't think either party knows right now who is more likely to win the next presidential election.
you need the Senate to sit a judge and the best predictor of who will have a Senate majority in the future is the current majority
you need the Senate to sit a judge and the best predictor of who will have a Senate majority in the future is the current majority
So you think that Republicans would be in favor of this change, but Democrats would not?
That does not seem at all apparent to me, but clearly there would also have to be rules against not even allowing a confirmation hearing to take place, like happened in 2016. I would prefer a deadline like if no one has been confirmed by the time of the next SC session, confirmation would not be necessary.
So you think that Republicans would be in favor of this change, but Democrats would not?
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the way I understand your own proposal yes republicans might be inclined to vote in favor (unless they think they are even better off under current arrangements).
but in general the idea is that either party will never vote in favour of a change that doesn't benefit... the party, so you will never have the votes for an amendment.
removing senate role from the process is always possible through an amendment but I don't think it would be easy to sell, and clearly it would be against one of the. most crucial elements of the constitution, the checks and balances of power
is a majority of the people like it in 38 states or whatever it is to pass an amendment yes.
try to convince the median voter in Tennessee of a transition which doesnt help the republican party, or the median voter in Maryland of a transition that doesn't help the democratic party.
good luck
In politics, things stay the same until they change rapidly. 20 years ago who would have thought that Donald F Trump would be elected president, lose the next election, and then win the presidency back?
In politics, things stay the same until they change rapidly. 20 years ago who would have thought that Donald F Trump would be elected president, lose the next election, and then win the presidency back?
things can change rapidly at the margin especially when majorities are thin like today, but things rarely change rapidly when it's about supermajorities requirements.
IF i am correct and republicans will feel disadvantageous to reform SCOTUS in the proposed way because they think the current system and setup of the court is better for them than the proposed alternative, i don't see which kind of "rapid change" would make 38 states vote for that proposal when like 30 or more have republican majorities.
Now i mean, the republican party could collapse in most of the country in theory, but if that happens you are describing a totally different country in which case in a completly different political landscape with changes more dramatic than any other since the civil war, yes that reform and many others could maybe pass.
things can change rapidly at the margin especially when majorities are thin like today, but things rarely change rapidly when it's about supermajorities requirements.
You are assuming that voters think about what is good for their party (here's a tip - almost no one is actually a member of a party). They don't - they think about what is good for them personally. Or at least, what they think will be good for them. It doesn't take to much imagination to see a future where most voters want court reform. Not saying it's probable, just that it's possible.
You are assuming that voters think about what is good for their party (here's a tip - almost no one is actually a member of a party). They don't - they think about what is good for them personally. Or at least, what they think will be good for them. It doesn't take to much imagination to see a future where most voters want court reform. Not saying it's probable, just that it's possible.
Wait, it's legislatures of the states that ratify amendments not the popular state vote through a proposition.
I don't know if democrats ever controlled 38 state legislatures. They currently control 18
Again, you are the king of missing the point.
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
Thanks.
Whether future regimes will do blatantly unconstitutional stuff, it does take a lot of time and resources to go through litigation process. So it does seem this could be opening a Pandora's box where executive actions could essentially be filibustered through judicial activism. And justified or not, I guarantee Republicans will expect their judges to act similarly by questioning the constitutionality of executive actions by a future Democrat administration.
Part of this concern probably comes because in the state I live in it is very hard for govt to do anything, because of al the lawsuits flying from every different direction following any executive and legislative action. Seems like it would be a bad thing if this happened at the national level.
Thanks.
Whether future regimes will do blatantly unconstitutional stuff, it does take a lot of time and resources to go through litigation process. So it does seem this could be opening a Pandora's box where executive actions could essentially be filibustered through judicial activism. And justified or not, I guarantee Republicans will expect their judges to act similarly by questioning the constitutionality of executive actions by a future Democrat administration.
Part of this concern proba
Well i think in california case a lot of it if not most of it is on purpose. Lawsuits are filed because laws do give that possibility to plenty of actors and the process is made incredibly hard on purpose , sort of a built in status quo bias against development of infrastructure or real estate in general, not as an offshot of people stretching the letter of the law though or because of judicial activism "innovating" in that sense, rather because the political will of legislators at the local and state level for decades has enshrined those principles into state law and local regulation.
The federal use of nationwide injuctions we are seeing currently is a different beast.
non delegation case just got accepted by SCOTUS, a man can dream
non delegation case just got accepted by SCOTUS, a man can dream
So do you and others supporting this believe that the President should be allowed to delegate his decision-making authority? If so, why should it be different for the executive branch?
So do you and others supporting this believe that the President should be allowed to delegate his decision-making authority? If so, why should it be different for the executive branch?
The explicit constitutional powers of the president shouldn't be delegated. He can ask for counsel from anyone for example but he cannot delegate the picking of a SCOTUS nominee to anyone else, he has to sign the paper with that name on himself.
Congress could create an agency that generates a text for regulation and then rubber stamp it, but the act of giving power to those lines of text cannot be delegated.
Not a single line of regulation or law should ever become the law of the land without explicit congressional approval after the text has been produced.
Think at the extreme: can congress in your model create an agency that can declare war or pass the budget without explicit congressional approval of the declaration of war, or the text of the budget? if it can't, then why should it be different from all other congressional powers?
Non-delegation is about giving up on the last , definitive word before an act has legal consequences.
My understanding is that many important decisions are made by presidential appointees without the explicit agreement of the president.
I don't know offhand if the power to make all those decisions are specifically given to the president in the constitution though.
I know congress is given the power to declare war, but that's proven to be a meaningless formality since it hasn't been done since 1942, while the US has done a large number of extended military operations since then.
They do have to pass the budget, but that's also a formality given that few (if any) members of congress have read the entire budget before voting to pass it.
They have effectively delegated the authority in both of the areas you mention. If every proposed regulation was required to be voted on by congress, the only way it could ever happen would be for a yearly tome to be passed around by some congressional staff members and then it would be voted on without the members having read the entire thing, just as happens now with the budget. It seems silly to me to require the extra time and expense to do things that way, when congress can already overturn any particular regulations with which they disagree.
If every proposed regulation was required to be voted on by congress, the only way it could ever happen would be for a yearly tome to be passed around by some congressional staff members and then it would be voted on without the members having read the entire thing, just as happens now with the budget. It seems silly to me to require the extra time and expense to do things that way, when congress can already overturn any particular regulations with which they disagree.
they read and discuss and use their power against or in favor what they care about within those regulations or budget proposals. that's when they represent their constituents (which remember, aren't "the American people" but exclusively the people living in their district, within the framing of the constitution).
and they need 60 freaking votes in the Senate to pass them which is why the left wants delegation, it's basically a removal of the filibuster for regulation, and why people who want a smaller state want non delegation, do you see it now?
the harder it is to pass any new rule the better the country is for us. and the fact that the constitution actually is on our side is a significant plus.
the "silly tome that requires signatures" would prevent regulation that can be spinned as inimical to interest groups an easy pass. and that's the vast majority of regulations.
only rules that a significant super majority of Americans agree with should have the force of the law in the USA. that's what the filibuster is about.
it should NOT to be easy to ever impose literally anything on the American people with simple majorities.
but anyway this isn't about preferences, but I wanted to clarify that what you see as a silly impediment would be an improvement in my eyes. if even one less regulation gets passed that's a win basically. we would need a complete moratorium on the totality of regulation for some decades and all efforts spent to remove existing regulations for decades to even try to have a chance at getting back to normal (regulations were already exceptionally oversized in the 60s).
30 years of absolutely no new federal regulation about literally anything (not a single line limiting any freedom currently exiting for anyone or any company anywhere in the nation in any sector with absolutely no exceptions including new future sectors) with 80-90% of existing regulations being removed would make America normal again.
but again that's not a legal take, rather a political one to answer your political feeling it would be a silly impediment with no effects.
if it was for me I would apply constitutional amendment thresholds to pass any law or regulation limiting any freedom, AND having automatic mandatory sunset clauses, and simple majorities to remove them
https://x.com/bhweingarten/status/190681...
Senate Judiciary Committee Chairman Chuck Grassley has just introduced the "Judicial Relief Clarification Act of 2025" to rein in the scourge of universal injunctions currently fueling a constitutional crisis.
According to a fact sheet associated with the bill, it:
-Forbids federal courts from issuing sweeping relief against the government to persons not before the court -- ending the practice of universal injunctions and diminishes the incentive to forum shop for a sympathetic judge.
-Requires parties seeking universal relief against the government to use the class action process to show that class-wide relief is proper
-Makes temporary restraining orders (TROs) immediately appealable, strengthening appellate review
-Amends the Administrative Procedure Act (APA) and Declaratory Judgment Act to clarify that courts may only issue relief under those statutes to parties before the court
https://x.com/bhweingarten/status/190681...
Senate Judiciary Committee Chairman Chuck Grassley has just introduced the "Judicial Relief Clarification Act of 2025" to rein in the scourge of universal injunctions currently fueling a constitutional crisis.
According to a fact sheet associated with the bill, it:
Well it just seems like anytime the GOP doesn't like something they go to the Texas Court and when the Dems do not like it its off to the California courts. Maybe the solution is requiring the Dems to go to the Texas courts and the GOP to the California courts
The amount being spent on the Wisconsin Supreme court race is criminal . Elon alone 20 million donation
https://x.com/bhweingarten/status/190681...
Senate Judiciary Committee Chairman Chuck Grassley has just introduced the "Judicial Relief Clarification Act of 2025" to rein in the scourge of universal injunctions currently fueling a constitutional crisis.
According to a fact sheet associated with the bill, it:
It's a real study in social media manipulation to see how worked up you guys are by injunctions against the federal government. For my entire lifetime, federal courts have had, and exercised, the power to issue injunctions against the federal government. It happened several times during the Biden administration and the Obama administration. But it didn't show up in your social media feed so you didn't care.
Well it just seems like anytime the GOP doesn't like something they go to the Texas Court and when the Dems do not like it its off to the California courts. Maybe the solution is requiring the Dems to go to the Texas courts and the GOP to the California courts
The amount being spent on the Wisconsin Supreme court race is criminal . Elon alone 20 million donation
+1
I agree and to show you I’m not always against you 😀
It's a real study in social media manipulation to see how worked up you guys are by injunctions against the federal government. For my entire lifetime, federal courts have had, and exercised, the power to issue injunctions against the federal government. It happened several times during the Biden administration and the Obama administration. But it didn't show up in your social media feed so you didn't care.
You can’t blame the people for not watching fake news !
It's a real study in social media manipulation to see how worked up you guys are by injunctions against the federal government. For my entire lifetime, federal courts have had, and exercised, the power to issue injunctions against the federal government. It happened several times during the Biden administration and the Obama administration. But it didn't show up in your social media feed so you didn't care.
When i will be able to i will source you the data on nationwide applicable TROs to presumtpive classes historically, and you will see the vast majority of them had been issues by judges appointed by democrats presidents in the last 10 years, like a lot more than half the total since your country exists.
Which cases do you have in mind for ex under the Biden admin of district court level TROs applying nationwide to a presumptive class?
You smarter than this, you know the topic is specifically one or 4 guys suing and obtaining a decision that interrupts the application of a federal law or executive order nationwide to anyone in a vaguely similar condition to them. No one is contesting the power of the court to specifically interrupt the application of an EO or law to the plaintiff waiting for further judicial consideration or whatever.
