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ActusRhesus posted:I just have a hard time believing that a Justice of the Supreme Court, any Justice, approaches a case with the conscious objective of "Let's make sure the R's/D's are happy." My feeling is that they don't really go in with that motive explicit, but that it is the motivating factor in some decisions and that if they were sufficiently self-reflective they would realize it. That's why I think that comparing their ideology is useful: if Justice X always rules one way on certain issues and rules that same way on a partisan issue the fairest explanation is ideology, not partisanship. But when they always rule one way on certain issues except when it's a severely partisan issue and then they flip, the only good explanation is partisanship, explicit or not. The distinction between the two is why I'm generally more positive about Thomas than Scalia, despite that they rule virtually identically most of the time. Thomas will stick to his ideology, however much I dislike it, while Scalia will find an exception if he wants one badly enough. I think it's less bad if they do not consciously realize they're making a partisan decision, but I think that's at a minimum a failure to deliberate on the issue in such a way as to force yourself out of making decisions unconsciously and into forcing yourself to confront hidden assumptions. Given that that's their entire job I don't have a problem castigating them for it and I certainly don't agree that we should just accept it.
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Feb 26, 2015 17:27
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I think it's a little disingenuous to say the only way a decision can be considered a politically tainted one is if there's no logical process from the question to the opinion. There's always a logical process and it's often written in rather ponderous language. What is being claimed as evidence is unexplained inconsistency where one would expect predictable doctrine - limited power of the federal government to interfere with state matters for example, and how that limitation applies to guns but not to marijuana.
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Feb 26, 2015 17:29
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My original comments that started this disagreement were centered on the perceptions and incentives created by judicial involvement in the particular issue at hand- not that it was breaking the dam, but would make it worse. The key point is that ideology, theory and partisan bias aren't the same thing, even if they can be hard to identify or distinguish in particular cases. Forever_Peace posted:I actually happen to be a cognitive neuroscientist. In my opinion, the problem in this case isn't that neuroscience is hot or even that it is frequently spurious (which it is!). The problem in this case is that many of the proponents (such as those I bolded) are appropriating the language of science without actually doing science, and that people (such as the judge in the article) are being duped by it. That's awesome(that you're a scientist, not the appropriation). In my work, the problem I'm seeing is other scientists appropriating scan methods or theories and implementing them poorly- but again, I strongly suspect the real hot period of the use of brain scans in court is past, since the expert evidence folks have gotten better at clamping down on it in the literature. Discendo Vox fucked around with this message at 18:57 on Feb 26, 2015 |
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Feb 26, 2015 18:52
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FAUXTON posted:I think it's a little disingenuous to say the only way a decision can be considered a politically tainted one is if there's no logical process from the question to the opinion. There's always a logical process and it's often written in rather ponderous language. What is being claimed as evidence is unexplained inconsistency where one would expect predictable doctrine - limited power of the federal government to interfere with state matters for example, and how that limitation applies to guns but not to marijuana.
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Feb 26, 2015 19:06
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twodot posted:I think Raich was wrongly decided, but comparing it to guns is just bizarre (since guns have their own special amendment). In any case what does it mean for a decision to be "politically tainted"? My best understanding is that it means that a decision was reached because of a desired policy, rather than an application of rules. My problem is that if there is a logical application of rules that reaches the decision, and the person who presented the decision also gave that process along with the decision, it seems silly to speculate whether they thought of the policy or the rules first. Who cares, so long as the rules were properly applied? Because in the next case they'll apply different rules.
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Feb 26, 2015 19:08
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evilweasel posted:Because in the next case they'll apply different rules.
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Feb 26, 2015 19:12
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twodot posted:That's possible, but why is that a bad thing? If we think there is the one true judicial philosophy, it seems like it's our responsibility to write that down somewhere. My dissertation is out in two years. I'll let you know.
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Feb 26, 2015 19:15
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twodot posted:That's possible, but why is that a bad thing? If we think there is the one true judicial philosophy, it seems like it's our responsibility to write that down somewhere. Because when the law says X when a judge wants it to be X but it says Y at all other times, this is very bad because it's not predictable (one of the primary jobs of the Supreme Court is making clear rulings that can be applied to new cases by lower courts), and it's fundamentally unjust. This is easiest to see when the judge's preferences are ones that are unambiguiously illegitimate ("if i rule this way I get $50k" or "he's my buddy, giving this case to him"). It is legitimate for judges to have different judicial philosophies. It's not legitimate for them to switch between them just to get the result they want.
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Feb 26, 2015 19:17
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Can SCOTUS overturn today's FCC net neutrality decision?
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Feb 26, 2015 19:35
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SpiderHyphenMan posted:Can SCOTUS overturn today's FCC net neutrality decision? Not quickly. Verizon will sue based on something, it will go to a district court, then appeals court. It could then go to the Supreme Court but I doubt it, appeals court will probably get the last word.
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Feb 26, 2015 19:42
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Considering the FCC has been wording the changes heavily based on the fact it'd going to be the center of a huge legal battle hopefully things end on their side but if 5+ justices decide "nope internet and cable are special snowflakes the FCC can never touch, also mobile" or whatever then that's the end of it without a massive political shift in the US because there is absolutely zero chance of Congress giving the FCC more authority or outright passing a RFRA-style bill to basically state that the SCOTUS is wrong and the FCC has the authority so deal with it SCOTUS. If it ends up in the same court where Verizon won last time I'd expect the FCC to win there because the changes are pretty much written to follow that court's ruling on how they could've regulated telecomms.
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Feb 26, 2015 19:56
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I think FCC has a pretty good batting average versus industry, but it's really not my area- and the stakes are especially high in this case, of course.
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Feb 26, 2015 19:59
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Discendo Vox posted:I think FCC has a pretty good batting average versus industry, but it's really not my area- and the stakes are especially high in this case, of course. You're comparing to the Lochner era, right?
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Feb 26, 2015 20:02
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FCC has the advantage that "industry" isn't a monolith in this instance
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Feb 26, 2015 20:28
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evilweasel posted:Not quickly. Verizon will sue based on something, it will go to a district court, then appeals court. It could then go to the Supreme Court but I doubt it, appeals court will probably get the last word. Appeals of FCC decisions go straight to appeals courts, assuming there aren't any reconsideration petitions. No stop in district court.
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Feb 26, 2015 20:36
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evilweasel posted:Because when the law says X when a judge wants it to be X but it says Y at all other times, this is very bad because it's not predictable (one of the primary jobs of the Supreme Court is making clear rulings that can be applied to new cases by lower courts), and it's fundamentally unjust. This is easiest to see when the judge's preferences are ones that are unambiguiously illegitimate ("if i rule this way I get $50k" or "he's my buddy, giving this case to him"). As far as bribery or cronyism goes, I agree those are bad, but they are bad because they are a heuristic for predicting invalid opinions. Once you have an opinion in hand, along with a valid legal reasoning, you can't discover that a judge was bribed, and then conclude the opinion is bad due to the bribery. I suppose you're building towards an argument of the form "Judges who have strong policy desires ought to recuse themselves regarding related matters." which seems ok to me. Again, why is it bad when judges switch philosophies to achieve a policy goal, but it's not bad for judges to switch philosophies generally? Using your predictable requirement, a judge that switches philosophies for external reasons would be much more predictable than one who switches for internal reasons. twodot fucked around with this message at 22:07 on Feb 26, 2015 |
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Feb 26, 2015 21:02
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twodot posted:That's possible, but why is that a bad thing? If we think there is the one true judicial philosophy, it seems like it's our responsibility to write that down somewhere. It's less about identifying "one true judicial philosophy" and more about how a justice will give rationale in favor of limited federal power to regulate interstate commerce in an opinion regarding federal gun legislation, in flat contradiction to the rationale when opining in support of broad federal powers to regulate interstate commerce regarding marijuana. One of the things about a lot of those SCOTUS opinions is that it pares the case down to the legal question before the court, and then passes that question against the constitution, precedent, factual aspects of the case, etc. It isn't like there's a prohibition on explaining why the 10th Amendment doesn't empower the government to regulate this interstate trade while it empowers it to regulate that interstate trade, that's exactly why opinions are often big verbose things. It's like the large hadron collider, but for legal questions and logic instead of subatomic particles. They chew on that poo poo endlessly and use a lot of ink (well, sometimes it's a clerk doing the inking) to show everyone why they made the call they made, so that the future cases asking similar questions of the court can draw on that reasoning for precedent and guidance. Reputation-wise, it preserves the integrity of the court to be consistent and clear in your reasoning between cases, even if you recite "around necessary and proper, never relax" on the rosary.
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Feb 26, 2015 22:18
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twodot posted:Wait are we talking about the Supreme Court or lower courts? A partisan Justice should be extremely predictable, and would create clear rulings that lower courts can use. A random judge might be unpredictable if you are expecting them to follow those clear rules and they don't, but that seems to break my "as long as the rules were properly applied" invariant. A partisan Justice ISN'T predictable, though, unless you can predict the issues that they care enough about to deviate from their usual ideology.
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Feb 26, 2015 23:50
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KIM JONG TRILL posted:A partisan Justice ISN'T predictable, though, unless you can predict the issues that they care enough about to deviate from their usual ideology.
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Feb 27, 2015 00:04
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twodot posted:Wait are we talking about the Supreme Court or lower courts? A partisan Justice should be extremely predictable, and would create clear rulings that lower courts can use. A random judge might be unpredictable if you are expecting them to follow those clear rules and they don't, but that seems to break my "as long as the rules were properly applied" invariant. Okay, so you're telling me that lower courts should write opinions like "In Hobby Lobby, the Supreme Court gave a large amount of latitude to what they considered an undue burden on religious belief. But, based on their abortion opinions, it's obvious all that reasoning was merely a fig leaf for punishing sluts. Since the plaintiffs in this case are Native American, we know that the Supreme Court majority hates their religion and will stroke themselves to federal laws that poo poo all over it, so we'll just save everyone some time and hassle and rule against them right now. It is so ordered." It seems like what you are saying is that lower courts should have a habit of openly disbelieving the reasoning given in the established precedent and instead try to divine a ruling based on their estimations of the political leanings of each justice? What's the point of putting the reasoning in the opinion if it's not intended to serve as a reliable guide for future decisions, and only exists to give the majority some plausible cover? If that's the case it would make for a better court system if SCOTUS just laid out their real reasoning and straight-up said "If you're not sure whether a law burdens free exercise, don't look to previous case law or the constitution, just ask yourself which side is closest to our brand of Catholicism" or "gently caress it, anything that punishes sluts is good law." Now there's a clear precedent the lower courts can follow! VitalSigns fucked around with this message at 01:08 on Feb 27, 2015 |
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Feb 27, 2015 00:44
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Discendo Vox posted:I think FCC has a pretty good batting average versus industry, but it's really not my area- and the stakes are especially high in this case, of course. They do okay, but this is an area in which their record is decidedly mixed. I think the challenges have a decent chance of succeeding, though it's going to depend on what exactly the FCC's order says and how it justifies the change. It's most likely going to be a decision that focuses on procedural adequacy and not the substance of whether net neutrality is or is not a good thing. (The stakes really aren't that high, though. Title II isn't going to prevent Comcast from charging by the site - Comcast isn't going to do that because it's a good way to get their franchise revoked in various areas and generally ensure statutory punishments when legislators deal with it. It'd be nice to have it enshrined in law, but not necessary, and title II remains a bad way of going about it for a variety of reasons, including that the FTC just lost any ability to enforce consumer protection rules against ISPs.)
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Feb 27, 2015 08:21
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evilweasel posted:Not quickly. Verizon will sue based on something, it will go to a district court, then appeals court. It could then go to the Supreme Court but I doubt it, appeals court will probably get the last word. Unless they pounce on it before the ruling even comes out and force it the way they want it to go. (pre-emptively bitter about the ACA ruling)
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Mar 3, 2015 21:34
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Have any of our prosecutors read the briefs or transcript in davis v ayala? Interested in how you defend an ex parte batson challenge. I mean, maybe excluding the defendant, but to have the challenge heard in camera, no record, with the defense attorneys excluded in a capital case? That smells fishy. I understand that maybe it's too late on habeas, but what the hell?
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Mar 3, 2015 23:55
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SCOTUSBlog and others see Kennedy voting to strike down redistricting commissions.
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Mar 4, 2015 00:10
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That's really upsetting. Redistricting commissions are (fairly) effective at reducing partisan gerrymandering. From what I can recall that case was solely about redistricting commissions for US House of Representatives seats; presumably SCOTUS wouldn't strike down commissions for redistricting state districts? Another possibility, depending upon how they rule, would be giving the commission the power of veto over legislative plans, since the main objection was divorcing the legislature from the process entirely.
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Mar 4, 2015 00:16
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Again, this is a pretty specific kind of redistricting commission that's completely separated from the legislature.
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Mar 4, 2015 00:18
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The commissions will still be fine for state legislative redistricting though, under most interpretations, correcT?
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Mar 4, 2015 00:19
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Discendo Vox posted:Again, this is a pretty specific kind of redistricting commission that's completely separated from the legislature. It pretty much tells the people of Arizona "Hahah you thought you lived in a Democracy. You idiots, you didn't actually think your votes counted for something did you?" The supreme court of the united states does not believe in democracy. This is a dark loving day in the history of this country.
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Mar 4, 2015 00:27
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Hot Dog Day #91 posted:The commissions will still be fine for state legislative redistricting though, under most interpretations, correcT? Depends on if someone has the balls to try to argue that the clause banning those commissions federally should be incorporated via the 14th. Pretty doubtful though unless state constitutions explicitly have a similar provision to the one in the US Constitution. And it'd probably be okay if the legislature had the prerogative to veto the commission's maps. ComradeCosmobot fucked around with this message at 00:32 on Mar 4, 2015 |
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Mar 4, 2015 00:30
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hobbesmaster posted:It pretty much tells the people of Arizona "Hahah you thought you lived in a Democracy. You idiots, you didn't actually think your votes counted for something did you?" But this isn't a democracy? Voters can't enact unconstitutional laws, even I'd they're the will of the people through direct democracy.
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Mar 4, 2015 00:31
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Hot Dog Day #91 posted:But this isn't a democracy? Voters can't enact unconstitutional laws, even I'd they're the will of the people through direct democracy. The state's argument is that the people cannot act as a legislature.
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Mar 4, 2015 00:32
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hobbesmaster posted:The state's argument is that the people cannot act as a legislature. Ok, so assume I'm just really dense, because I am. How can the people act as a legislature? Isn't that why we have representative democracy?
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Mar 4, 2015 00:37
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hobbesmaster posted:It pretty much tells the people of Arizona "Hahah you thought you lived in a Democracy. You idiots, you didn't actually think your votes counted for something did you?" hobbesmaster posted:The state's argument is that the people cannot act as a legislature. Yeah, that's pretty generally accurate. One of the few near universal consensus points in political philosophy throughout history, including all the major figures and the founding fathers, is that direct, pure democracy is the worst or nearly the worst form of government. Voter referenda are a really crappy and destabilizing way to run things-especially as a means of "getting around" the legislature.
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Mar 4, 2015 00:40
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Discendo Vox posted:Yeah, that's pretty generally accurate. One of the few near universal consensus points in political philosophy throughout history, including all the major figures and the founding fathers, is that direct, pure democracy is the worst or nearly the worst form of government. Voter referenda are a really crappy and destabilizing way to run things-especially as a means of "getting around" the legislature. Well if the Arizona legislature doesn't like referendum power in the constitution, the Arizona constitution has a procedure to amend it, right?
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Mar 4, 2015 01:03
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VitalSigns posted:Well if the Arizona legislature doesn't like referendum power in the constitution, the Arizona constitution has a procedure to amend it, right? Federal legislature, federal constitution. Saying "the state has a referendum procedure" also isn't a great response to "direct democratic systems are universally understood as a bad idea by political theorists". vvvv The controlling law and why. Discendo Vox fucked around with this message at 01:14 on Mar 4, 2015 |
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Mar 4, 2015 01:09
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Discendo Vox posted:Federal legislature, federal constitution. I don't think anyone is arguing that the federal legislature has jurisdiction over redistricting.
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Mar 4, 2015 01:11
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Discendo Vox posted:Federal legislature, federal constitution. The court has traditionally interpreted that broadly though, right? The court has previously held that the sentence at issue in the constitution doesn't empower the state legislature to overrule their state constitution's procedures for passing legislation. The Supreme Court has upheld a referendum adding oversight to redistricting before and also upheld the governor's right to veto a districting plan even though he's not literally a member of the legislature. Discendo Vox posted:Saying "the state has a referendum procedure" also isn't a great response to "direct democratic systems are universally understood as a bad idea by political theorists". That's because "direct democracy is bad" is not a good response to "this referendum was passed according to the state constitution". It would be a good argument to support the state legislature amending their constitution, but they're not doing that.
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Mar 4, 2015 01:22
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VitalSigns posted:The court has traditionally interpreted that broadly though, right? The court has previously held that the sentence at issue in the constitution doesn't empower the state legislature to overrule their state constitution's procedures for passing legislation. The Supreme Court has upheld a referendum adding oversight to redistricting before and also upheld the governor's right to veto a districting plan even though he's not literally a member of the legislature. The state constitution isn't what controls, it's the part of the federal constitution that says the state legislature has to have districting authority. What distinguishes this regime from others is that it completely excludes the legislature (and the the entire representative government regime that is enshrined in the constitution) from that process. My response is because "democracy" isn't an absolute moral good- and because everyone involved in writing the controlling laws involved understood that. Discendo Vox fucked around with this message at 01:33 on Mar 4, 2015 |
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Mar 4, 2015 01:26
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Discendo Vox posted:The state constitution isn't what controls, it's the part of the federal constitution that says the state legislature has to have districting authority. What distinguishes this regime from others is that it completely excludes the legislature (and the the entire representative government regime that is enshrined in the constitution) from that process. My response is because "democracy" isn't an absolute moral good- and everyone involved in writing the controlling laws involved understood that. Right, but the Supreme Court has in the past interpreted "Legislature" to mean the full legislating power of the state. The article I posted cites cases in which the court rejected challenges by state legislatures to a governor's veto or a referendum overseeing the districting. And the legislature should be excluded from the process of influencing the election of their own political party. If we're worried about corruption in democracy, a process that allows a party to pass legislation to skew elections its way is a pretty big one. Are you actually hoping the supreme court will overturn precedent and interpret the word "Legislature" narrowly here? How narrow are you willing to go? Does the Supreme Court even have jurisdiction over redistricting, or was Baker v Carr wrongly decided because after all, the Supreme Court isn't part of the Legislature so going by that one sentence in isolation it seems like they should have no say in districting requirements. VitalSigns fucked around with this message at 01:39 on Mar 4, 2015 |
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Mar 4, 2015 01:36
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Discendo Vox posted:The state constitution isn't what controls, it's the part of the federal constitution that says the state legislature has to have districting authority. Which is the other amazing point about this: redistricting apparently counts as a "manner" of holding elections, which seems specious to me at best. Is there some precedent with which they're ignoring that part? (e.g. the ones giving the governor veto power?)
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Mar 4, 2015 01:41
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