All Things SCOTUS

[Irish#1]

I hope they run it through as fast as they can just like the previous 3. Im sure Mitch will make up some other rule why it cant be done and Chuck Schumer will let it happen lol.

They will and that's okay.

 

[Irish#1]

For whatever reason, I am disgusted whenever Joy Behar opens up her mouth. She gets under my skin like no other.

You know what Joy Behar and Einstein have in common? Nothing.

 

[ab2cmiller]

I'm assuming that some Republican Senators will pose the question. "If confirmed, would you deem it legal for companies to only hire certain genders or members of a certain race for an open position and to exclude those applicants that don't meet the gender or race criteria?"

 

[Whiskeyjack]

Harvard law professor Adrian Vermeule just published an article in the NYT titled "The Supreme Court Is on the Wrong Path":

Justice Stephen Breyer last week announced that he will retire at the end of this Supreme Court term. If the recent past is any guide, whoever is nominated to replace him will face a barrage of attacks from political opponents. Every Supreme Court nomination is now a battleground, featuring slander and even angry demonstrations, as when protesters of Justice Brett Kavanaugh’s nomination invaded the Senate building and attacked the very doors of the court.The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.

On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases. Consider the strange 2020 decision in Bostock v. Clayton County. Some of the court’s self-described originalists provided the necessary votes to read the Civil Rights Act of 1964, implausibly, to protect sexual orientation and even transgender identity — quite obviously parroting the orthodoxy of the present.

Bostock was a crucial test of method: The decision was written by arguably the court’s most strident originalist, Justice Neil Gorsuch, and explicitly called for reading statutes (not just the Constitution) in light of their original public meaning. Yet at a key moment, Justice Gorsuch wrote that the law should be read at a remarkably abstract level of generality, sufficient to encompass protections that would have seemed risible in 1964 had they been imaginable at all, based on a contestable view of the equities of the issue; according to Gorsuch, following the original expectations of the legislators in 1964 “would tilt the scales of justice in favor of the strong or popular.” Bostock exposes that originalism betrays its own promise to leach arguments about justice out of interpretation.

Neither progressivism nor originalism has proved capable of transcending partisanship to produce solidarity and community. Every June, the Supreme Court breaks down largely along ideological lines — precisely in the great cases that attract the most public attention and concern, and that inevitably symbolize our national commitments. We lack an overarching legal framework to help all Americans argue over principles while still retaining the sense that they are participating in a common enterprise.

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.

One needs no sectarian or contentious conception of the common good to think that America in 2022 desperately needs healing of the public community. Americans’ life expectancy is now roughly five years below that of people in comparable countries. Overdosing, rural despair and politicized anger are not hallmarks of a flourishing community in any reasonable view of what the common good means. Stable families, material security, dignified work and a sense of social harmony are objectively good for all. We may disagree on how precisely to achieve these ends, but denying they are something to aspire to as a community is irrational, and the laws should be interpreted accordingly. In hard cases, where legal sources are conflicting, ambiguous or unclear, the common good and its subsidiary ideals serve as principles for interpreting the laws.

American judges in the classical legal tradition applied the common good with a healthy measure of deference to the reasonable decisions of public authorities. In important cases from the past few decades, this approach would have changed both reasoning and outcomes. One example is the 2002 case Ashcroft v. Free Speech Coalition, in which Justice Anthony Kennedy, writing for a majority, struck down a federal law that barred the creation of virtual child pornography — images of people who appear to be minors, engaging in sexually explicit conduct, that were generated by computer or by adult actors posing as children. Justice Kennedy wrote that the law was “overbroad” because it prohibited speech “that records no crime and creates no victims by its production.” This neglects the diffuse harms to the community and the broader corrosion of the social fabric that occur when virtual child pornography is available. The law is a teacher of virtue, and it should not teach that animated or simulated child porn is somehow a victimless crime.

Likewise, the court erred in the recent decision in National Federation of Independent Business v. Department of Labor that, in effect, barred the Occupational Safety and Health Administration from requiring vaccination (or a test-and-mask regimen) in large workplaces. The safeguarding of public health is a core duty of governance, and Supreme Court precedent long ago established that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The court held that because the relevant laws gave OSHA the power to regulate workplace safety specifically, it could not regulate more general public health risks, like Covid, that also have important effects in and through the workplace — a libertarian non sequitur. The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench.

Finally, the court also erred in the landmark 1992 decision in Lujan v. Defenders of Wildlife, which required plaintiffs to show a personal “injury in fact” in order to challenge inadequate enforcement of environmental laws in federal court — even if, as the Court recently clarified, statutes create a right to sue. This constitutional requirement of a private stake to bring suit is backward. The law should encourage, not hamper, those who wish to articulate public interests in legal proceedings, especially where the health of the natural environment is at stake — the ultimate common good.

All officials are duty bound to consider the common good. As Justice Antonin Scalia once put it, governmental decisions are subject to “the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest.” Common-good constitutionalism urges that this principle be remembered and renewed to heal the ills of our law. One hopes that Justice Breyer’s replacement can transcend the tired opposition of progressivism and originalism, and revive the orientation to the common good that was once central to the American legal tradition.

 

[RDU Irish]

"The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench"
So not allowing an ineffective broad mandate (that ignores natural immunity) is equal to being "ruled"? Hope the author didn't throw their back out on that reach.

Also for the enviro nuts - CoMmON gOOd!!!! as legal authority for filing suit is just asking for trouble when we have activist judges littering the landscape.

Courts should be the last line of defense in protecting personal autonomy and freedom - not surprised a Harvard Law Prof thinks they need to be moving the opposite direction.

 

[Whiskeyjack]

Courts should be the last line of defense in protecting personal autonomy and freedom - not surprised a Harvard Law Prof thinks they need to be moving the opposite direction.

That's what they've been doing consistently for decades now, so you must be happy, right?

 

[RDU Irish]

That's what they've been doing consistently for decades now, so you must be happy, right?

Your article argues that autonomy and freedom should not have been upheld (at least that is my remedial take) - you take no stance but should we not imply you agree since you post without rebuttal? Are you happy?

I find it abhorrent that the courts have not quickly stricken down lockdowns that have been proven ineffective at best. Segregation of communities and families, isolation of individuals, bankrupting thousands of businesses and the resulting economic process of enriching the richest while marching the masses toward serfdom ... yeah I'm ecstatic.

 

[Whiskeyjack]

Your article argues that autonomy and freedom should not have been upheld (at least that is my remedial take) - you take no stance but should we not imply you agree since you post without rebuttal? Are you happy?

Let's talk about the actual cases discussed in the article:

• Ashcroft v. Free Speech Coalition was definitely wrongly decided. Your preferred standard of judicial interpretation, which privileges autonomy and freedom over all else, allows this sort of bullshit to happen all the time. Of course "virtual" child pornography harms any community that tolerates its existence, but we apparently can't do anything about it because of technicalities.
• NFIB v. DoL is more complicated. I agree with him that, in theory, the Feds should have the power to mandate vaccination under certain circumstances. But in this specific case, what OSHA was proposing was imprudent. So I would have ruled more narrowly, but obtaining the same result.
• Having to show an "injury in fact" to seek legal redress is a major hindrance to correcting the bad behavior of all sorts of powerful but mostly unaccountable corporate and government actors. This isn't about wanting to make it easier for environmentalists to legally harass people, but about what we recognize as the legitimate aims of government and the purpose of the courts.

I find it abhorrent that the courts have not quickly stricken down lockdowns that have been proven ineffective at best. Segregation of communities and families, isolation of individuals, bankrupting thousands of businesses and the resulting economic process of enriching the richest while marching the masses toward serfdom ... yeah I'm ecstatic.

You seem to have difficulty separating the principal at issue with the specific topic being addressed (you're not a lawyer, so I don't mean that as a personal slight). I don't disagree with you about the lockdowns causing far more than harm than they avoided, but such policies were prudential decisions made by the executive branch, and SCOTUS has historically been deferential toward their discretion in such matters. Few courts would mandate that a lockdown be lifted during the uncertainty of a global pandemic on constitutional grounds. Now that it's largely passed, what do you want them to do about it? You seem to dislike "activist" court decisions, preferring instead a reactive approach wherein they simply call "balls and strikes" as it relates to individual liberty and autonomy. How does that work in times of war, plague and famine?

 

[RDU Irish]

Let's talk about the actual cases discussed in the article:

• Ashcroft v. Free Speech Coalition was definitely wrongly decided. Your preferred standard of judicial interpretation, which privileges autonomy and freedom over all else, allows this sort of bullshit to happen all the time. Of course "virtual" child pornography harms any community that tolerates its existence, but we apparently can't do anything about it because of technicalities.
• NFIB v. DoL is more complicated. I agree with him that, in theory, the Feds should have the power to mandate vaccination under certain circumstances. But in this specific case, what OSHA was proposing was imprudent. So I would have ruled more narrowly, but obtaining the same result.
• Having to show an "injury in fact" to seek legal redress is a major hindrance to correcting the bad behavior of all sorts of powerful but mostly unaccountable corporate and government actors. This isn't about wanting to make it easier for environmentalists to legally harass people, but about what we recognize as the legitimate aims of government and the purpose of the courts.

You seem to have difficulty separating the principal at issue with the specific topic being addressed (you're not a lawyer, so I don't mean that as a personal slight). I don't disagree with you about the lockdowns causing far more than harm than they avoided, but such policies were prudential decisions made by the executive branch, and SCOTUS has historically been deferential toward their discretion in such matters. Few courts would mandate that a lockdown be lifted during the uncertainty of a global pandemic on constitutional grounds. Now that it's largely passed, what do you want them to do about it? You seem to dislike "activist" court decisions, preferring instead a reactive approach wherein they simply call "balls and strikes" as it relates to individual liberty and autonomy. How does that work in times of war, plague and famine?

A) Ashcroft v Free Speech Coalition was the only good argument of the three - which is why the author led with it.

B) Feds can't be trusted ever, why should they be given such power to force a medical treatment unilaterally across (essentially) all businesses?

C) I just think of what PETA or Greenpeace or any other well funded fringe goofball group could do with this precedent when woke America thinks cow farts and SUVs are literally Hitler killing people.

You are correct and I do not take slight - I am not a lawyer. The courts are a farce only protecting the protected class. Lock downs were not prudent - they were gross overreach and unconstitutional. Just because a vast majority gladly traded freedom for the perception of safety our society was fooked. Two years later we have dipshits like this normalizing this crap. Where are the courts to deliver restitution for the bankrupted? Where are the courts to allow the dying to be visited by loved ones during their final days? Where are the courts to defend our children being deprived their childhood? Fuck the courts - only people who win in court are lawyers.

All you need to do is declare a plague and you claim power - we turned a bad cold season in to a "plague". Now is the most important time to defend freedom and the rule of law. And WAR - yes insurrectionists can be locked up indefinitely! Totally legit! But burn down every major city and the Vice President raises money for your bail. Amazing how a narrative can define your freedom which is why you are better off erring on the side of pedo comic porn than allowing government to infringe on our rights. Don't worry, famine could easily be coming too - fertilizer in short supply, global food stocks at lows (you can thank the greenie weenies). Good to know you support Joe Biden dictating who gets food and who doesn't. Property will be confiscated and redistributed but it's not communism because the courts say so!

95% of the population is bankrupted if they try use courts to defend their rights. Go Fund Me freezes accounts of anyone they disagree with - RIttenhouse now Canadian Truckers - good luck folks. This is no pendulum - it is a bull dozer slowly pushing one way.

 

[BrownerandFry]

"Black community" would be well served to model Clarence Thomas. Maybe Joe nominates Corn Pop to properly represent?

Whoopi really needs to take Covid seriously and lose 100 pounds btw.

Somewhere, Harriet Beecher Stowe smiles, wanly.............

Thomas law clerk was Johnnie Boy "5th Amendement so often I looked like Carlo Gambino" Eastman.

The pride must overflow.............

 

[TorontoGold]

A) Ashcroft v Free Speech Coalition was the only good argument of the three - which is why the author led with it.

B) Feds can't be trusted ever, why should they be given such power to force a medical treatment unilaterally across (essentially) all businesses?

C) I just think of what PETA or Greenpeace or any other well funded fringe goofball group could do with this precedent when woke America thinks cow farts and SUVs are literally Hitler killing people.

You are correct and I do not take slight - I am not a lawyer. The courts are a farce only protecting the protected class. Lock downs were not prudent - they were gross overreach and unconstitutional. Just because a vast majority gladly traded freedom for the perception of safety our society was fooked. Two years later we have dipshits like this normalizing this crap. Where are the courts to deliver restitution for the bankrupted? Where are the courts to allow the dying to be visited by loved ones during their final days? Where are the courts to defend our children being deprived their childhood? Fuck the courts - only people who win in court are lawyers.

All you need to do is declare a plague and you claim power - we turned a bad cold season in to a "plague". Now is the most important time to defend freedom and the rule of law. And WAR - yes insurrectionists can be locked up indefinitely! Totally legit! But burn down every major city and the Vice President raises money for your bail. Amazing how a narrative can define your freedom which is why you are better off erring on the side of pedo comic porn than allowing government to infringe on our rights. Don't worry, famine could easily be coming too - fertilizer in short supply, global food stocks at lows (you can thank the greenie weenies). Good to know you support Joe Biden dictating who gets food and who doesn't. Property will be confiscated and redistributed but it's not communism because the courts say so!

95% of the population is bankrupted if they try use courts to defend their rights. Go Fund Me freezes accounts of anyone they disagree with - RIttenhouse now Canadian Truckers - good luck folks. This is no pendulum - it is a bull dozer slowly pushing one way.

 

[Irish#1]

C) I just think of what PETA or Greenpeace or any other well funded fringe goofball group could do with this precedent when woke America thinks cow farts and SUVs are literally Hitler killing people.

Reminds me of a discussion I had with a PETA rep about 20 years ago. I asked how she would control the racoon population that was getting out of control and ruining bushels of farmers crops, effectively cutting into their ability to make a living and feed everyone. Her reply was to put fences around the fields. When I pointed out that not only would it be cost prohibited to fence in thousands of acres, but that racoons can climb fences without an issue, she replied, "Well that's their problem". I then asked her if she killed flies or mosquitos that get in her house and she said of course. I asked her if that wasn't being hypocritical and her reply was, "Well that's different". Aren't they all Gods creation?

 

[RDU Irish]

Is this your daily affirmation or what?

 

[BrownerandFry]

"The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench"
So not allowing an ineffective broad mandate (that ignores natural immunity) is equal to being "ruled"? Hope the author didn't throw their back out on that reach.

Also for the enviro nuts - CoMmON gOOd!!!! as legal authority for filing suit is just asking for trouble when we have activist judges littering the landscape.

Courts should be the last line of defense in protecting personal autonomy and freedom - not surprised a Harvard Law Prof thinks they need to be moving the opposite direction.

So weak, so helpless.

Riddle me this:

Did John the Baptist have Religious Freedom when he spoke to Herod and later lost his head?

Did Jesus, the Christ have Religious Freedom when he stood mute before Pilate and was then crucified?

Yes or no answers please.

 

[ab2cmiller]

 

[drayer54]

The best part was Senator Sheldon Whitehouse, who is the king of dark money and whites-only beach clubs talking about how she wasn't steered there by dark money, when in fact, Dems spent a shitpot on this.

 

[RDU Irish]

Anyone else surprised the soft on pedos judge is Uncle Joe's first nomination?

 

[Rogue219]

Anyone else surprised the soft on pedos judge is Uncle Joe's first nomination?

What better shot to fire in the culture wars of 2022 than accusing someone of being sympathetic to pedophiles. I'm not old enough to remember when Day Care/Child Care Centers were "communist plots" destroy family values, but it was a thing then just as QAnon and Pizzagate is now.

In 2013 Jackson gave a lighter sentence to an 18-year-old offender who was not a threat to children but had shared two dozen videos of underage teens with an FBI agent, than she did for an older man who sent nude pictures of his 10-year-old and over 100 child porn videos to an agent. Both are crimes, and Jackson sentenced them both, but did so to match the severity of each crime.

Current sentencing guidelines for child porn sharing have been bipartisanly criticized for being too harsh and severe.

Klobuchar just read a letter of recommendation for Jackson that was written by the guy Ted Cruz clerked for. Very little of this has been entertaining but that was kinda fun.

 

[ab2cmiller]

Initially the soft on pedos characterization was concerning. Then I read a little bit more about how very few judges are sentencing anything close to the "recommended" sentencing guidelines.

 

[drayer54]

I won't make up my mind about her until I hear her discuss boofing.

Also-fentanyl as a victimless crime was an interesting perspective.

 

[Irish#1]

I thought the Dem playbook lists everyone as a victim!

 

[ab2cmiller]

The questioning of Supreme Court candidates has become a joke on both sides of the aisle for quite some time. Tons of questions that have very little to do with the candidate, but more about grandstanding for their own constituents and aiming for that "gotcha" moment. No real discourse or even a desire for discourse. Just interested in scoring political points.

The question about the candidates religion was obviously not a serious question about the current candidate, just a way of making a statement that Amy Coney Barrett wasn't treated fairly.

So much theater on both sides

 

[Rogue219]

This woman is more than qualified and the questions being asked have nothing to do with her. It's all about this upcoming November.

How much do you love Jesus on a scale of 1-10 and racist babies. How'd we get here, you might be asking yourself.

 

[drayer54]

The questioning of Supreme Court candidates has become a joke on both sides of the aisle for quite some time. Tons of questions that have very little to do with the candidate, but more about grandstanding for their own constituents and aiming for that "gotcha" moment. No real discourse or even a desire for discourse. Just interested in scoring political points.

The question about the candidates religion was obviously not a serious question about the current candidate, just a way of making a statement that Amy Coney Barrett wasn't treated fairly.

So much theater on both sides

Fair for some. I do think the questions on her sentencing child porno people to well under guidelines and prosecutors ask is very fair.

 

[ab2cmiller]

Fair for some. I do think the questions on her sentencing child porno people to well under guidelines and prosecutors ask is very fair.

I was initially concerned about that as well and those were certainly fair questions.

 

[drayer54]

This too.

 

[ab2cmiller]

Politicians are the worst.

 

[drayer54]

None worse than Senator Sheldon Whitehouse-

Opinion | Sheldon Whitehouse Goes Dark

The Senator refuses to take questions about his own dark-money ties.

www.wsj.com

I would love for him to be asked if this judge would be allowed at his white-only clubs that he enjoys.

 

[Rogue219]

It's now standard practice to casually accuse political opponents of being pedophiles or being sympathetic to pedophiles. The Q Effect.

 

[drayer54]

Is it accusing or asking about her specific relevant actions as a judge?