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I think the history books already have a lot to say about Citizens United.
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Mar 4, 2015 19:44
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FAUXTON posted:There's effectively zero chance there's enough of a change in the legislature (state or federal level) to make that kind of outcome after 2016, and the political memory of the country doesn't inspire confidence in it remaining an issue in 2020 or 2022. The Democrats don't need to win the House for it to be an effective campaign tactic, and it would be most effective as a tactic to retake state legislatures, which is necessary in the leadup to 2020.
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Mar 4, 2015 19:45
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Vladimir Putin posted:It would be kind of retarded for them to strike down a law and gently caress over millions of Americans over a typo. What are history books going to say about that? The justices have to know this. This is a court that has a habit of making retarded decisions in that sense.
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Mar 4, 2015 19:46
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Discendo Vox posted:I agree. This long view of legal theory and understanding of his position is what makes Robert so effective and influential as a member of the Court- unlike Scalia, his influence will likely outlast him. He'll be influential if there's subsequent justices to pick up the ball and carry it from there. The reason Lochner v. New York was so influential was the courts used it to get the results they wanted. A court with a couple more Democratic appointees is never going to mention "the equal dignity of the states" again even if they don't go all gently caress stare decisis.
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Mar 4, 2015 19:59
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1337JiveTurkey posted:He'll be influential if there's subsequent justices to pick up the ball and carry it from there. The reason Lochner v. New York was so influential was the courts used it to get the results they wanted. A court with a couple more Democratic appointees is never going to mention "the equal dignity of the states" again even if they don't go all gently caress stare decisis. it is important to remember the EQUAL DIGNITY OF THE STATES while interpreting the 14th amendment which was passed by telling the south that they were going to do what they were told by the north if they wanted back in
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Mar 4, 2015 20:00
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Fried Chicken posted:Idle thoughts brought about by upthread Scalia chat - what happens if, after these hearings, one of the justices just drops dead before they write their opinion. Do they go ahead and issue a ruling on the remaining 8, or do they slider arguments to be reheard as soon as the next person is appointed? I'd assume it's the former, but in that case what if it is split 4-4? If a conservative justice fell over dead right now it'd probably be the single greatest boon for America this decade. The only downside is we'd have 8 justices until 2017 at the earliest or Obama would cut some idiot deal and appoint a center-right justice, because there's no way the current senate would be ok with him appointing another Kagan or Sotomayor because anyone from the GOP who'd back such a person would be facing a hard right primary challenge when they come up for reelection at the very least.
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Mar 4, 2015 20:19
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If it's a 4-4 split it's a meaningless decision until they get back up to 9 and cert another case they can shoehorn a clarification in to.
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Mar 4, 2015 21:00
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I could see this breaking into 3 opinions. A controlling opinion by Kennedy and maybe Roberts, a dissent by the conservatives where they somehow explain why the medicaid case was different, and a reluctant concurrence by the liberals who agree with the decision, but still disagree that unconstitutionally coercive is a thing.
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Mar 4, 2015 23:11
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Northjayhawk posted:I could see this breaking into 3 opinions. A controlling opinion by Kennedy and maybe Roberts, a dissent by the conservatives where they somehow explain why the medicaid case was different, and a reluctant concurrence by the liberals who agree with the decision, but still disagree that unconstitutionally coercive is a thing. Breyer and Kagan joined Roberts in the Medicaid portion of his decision in NFIB. They might agree that it's a thing.
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Mar 4, 2015 23:22
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Northjayhawk posted:I could see this breaking into 3 opinions. A controlling opinion by Kennedy and maybe Roberts, a dissent by the conservatives where they somehow explain why the medicaid case was different, and a reluctant concurrence by the liberals who agree with the decision, but still disagree that unconstitutionally coercive is a thing. I honestly wonder how the coercion argument weighs up against the history of similar tactics using stuff like highway funds, or even that hobby lobby poo poo regarding employer-employee coercion.
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Mar 4, 2015 23:46
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FAUXTON posted:I honestly wonder how the coercion argument weighs up against the history of similar tactics using stuff like highway funds, or even that hobby lobby poo poo regarding employer-employee coercion. If it sticks around it would be an incredibly useful legal device for libertarians of both parties. Roberts is probably aware of this.
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Mar 4, 2015 23:53
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FAUXTON posted:I honestly wonder how the coercion argument weighs up against the history of similar tactics using stuff like highway funds, or even that hobby lobby poo poo regarding employer-employee coercion. The tactics in highway funds was settled in http://en.wikipedia.org/wiki/South_Dakota_v._Dole - it wasn't coercive because 5% of funds was considered small enough. The hobby lobby case has no connection to this
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Mar 4, 2015 23:58
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FAUXTON posted:I honestly wonder how the coercion argument weighs up against the history of similar tactics using stuff like highway funds, or even that hobby lobby poo poo regarding employer-employee coercion. I don't know, this coercion argument is new ground broken in 2012. I guess the court would have to somehow figure out a way to tell the difference between a punishment (or removal of funds) that is horrifyingly coercive to a state and one thats small enough to be no big deal. If this new legal theory sticks, then obviously there could be some pretty big consequences for the current congressional practice of big block grants with strings attached. Its why Verrilli wasn't enthusiastic about helping Kennedy out with it even though it weirdly happened to help the government this time. It normally will be something used to thwart the feds.
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Mar 5, 2015 00:01
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South Dakota v. Dole was published in 1987, not 2012.
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Mar 5, 2015 00:43
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Green Crayons posted:South Dakota v. Dole was published in 1987, not 2012. And the point being that in 2012 SCOTUS dramatically changed their reading of coercion.
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Mar 5, 2015 00:44
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My point being is that that characterization of the NFIB holding is hyperbole.
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Mar 5, 2015 00:48
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Green Crayons posted:My point being is that that characterization of the NFIB holding is hyperbole. Why don't you actually make that point then? Just exclaiming that another case was decided in the past doesn't make for much of a compelling argument. Can you explain how ACA was coercive but highway funds are not?
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Mar 5, 2015 00:52
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"DO X OR" withholding 5% of a state's federal highway funds (South Dakota v. Dole) versus "DO X OR" get no Medicaid funding whatsoever (NFIB) ----- The point that directly responds to Northjayhawk's post is that the concept of "coercion" is not some new theory conjured up in 2012. The point that directly responds to your post is that there's an obvious difference between withholding only 5% of federal highway funds versus withholding all of federal Medicaid funds, so that the holding in Dole was not controlling in NFIB. edited for clarification Green Crayons fucked around with this message at 00:58 on Mar 5, 2015 |
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Mar 5, 2015 00:55
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evilweasel posted:Looking at this, I could see Roberts being unwilling to go for gutting Obamacare instead he and Kennedy use this to reinforce their new "coercion" doctrine. It's a very Roberts thing to do, punting on a specific case to sneak in a doctrine he wants for later use. Let the liberals have their Obamacare, as they unwittingly clear the way for my long term plan to overturn Texas v White  evilweasel posted:it is important to remember the EQUAL DIGNITY OF THE STATES while interpreting the 14th amendment which was passed by telling the south that they were going to do what they were told by the north if they wanted back in 
VitalSigns fucked around with this message at 01:03 on Mar 5, 2015 |
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Mar 5, 2015 01:00
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Is there anything productive I can do to keep from going insane over this until the ruling in June?
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Mar 5, 2015 04:07
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FAUXTON posted:I honestly wonder how the coercion argument weighs up against the history of similar tactics using stuff like highway funds, or even that hobby lobby poo poo regarding employer-employee coercion. Fun fact, that stuff is their next target should the SCOTUS go that route http://www.bloomberg.com/politics/articles/2015-03-04/the-libertarians-who-got-scotus-and-congress-to-consider-the-unthinkable Well, Medicaid and associated acts, not hobby lobby at least SpiderHyphenMan posted:Is there anything productive I can do to keep from going insane over this until the ruling in June? 
Fried Chicken fucked around with this message at 04:14 on Mar 5, 2015 |
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Mar 5, 2015 04:11
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I got no doubts what Robert's attitude towards this will be. He already gave the law a bye in 2012 when he was all like "yea it's written like poo poo and doesn't really work as is butttt if we get all proactive here and pretend the law actually says it's a tax THEN it flies" and now they're coming to him to bail their asses out again. And the state coercion argument is what killed the Medicaid expansion in 2012 so that puts a twist on what Kennedy said, don't it?SpiderHyphenMan posted:Is there anything productive I can do to keep from going insane over this until the ruling in June? Watch more Korra.
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Mar 5, 2015 20:13
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This poster loves police brutality, but only when its against minorities!
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Fried Chicken posted:Fun fact, that stuff is their next target should the SCOTUS go that route http://www.bloomberg.com/politics/articles/2015-03-04/the-libertarians-who-got-scotus-and-congress-to-consider-the-unthinkable I like your choice of drink. You're alright, Fried Chicken. Impeach Fried Chicken
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Mar 5, 2015 20:28
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Seeing Nina Totenberg speak tonight. Going to try to score a Nina Totenbag.
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Mar 12, 2015 12:44
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SpiderHyphenMan posted:Is there anything productive I can do to keep from going insane over this until the ruling in June? Think about Arizona State Legislature v. Arizona Independent Redistricting Commission instead. 
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Mar 16, 2015 23:24
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The court agreed to take up a case on sentencing juveniles to life without parole today. I think on Friday here in FL our state Supreme Court ruled that a juvenile should not be subject to that.
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Mar 23, 2015 15:04
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Also, as noted in the USPOL thread, Frank v. Walker was not, so voter ID will be in effect in Wisconsin for 2016.
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Mar 23, 2015 15:43
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So I pre ordered this today Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted https://play.google.com/store/books/details?id=1zgzBQAAQBAJ It looks to be a history of how the Supreme Court deep dicked the American people for the vast majority of our history. It's probably of about zero use for the lawyers ITT, but I can't be the Layman reading this thread.
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Mar 23, 2015 15:51
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The attorney who signed off on his clients incomprehensible petition for cert on a patent case was not punished. But the court admonished all members of the bar to put their writings "in plain English."
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Mar 23, 2015 15:54
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Hot Dog Day #91 posted:The attorney who signed off on his clients incomprehensible petition for cert on a patent case was not punished. But the court admonished all members of the bar to put their writings "in plain English." Got a link for this? edit: nevermind, the order in full: quote:ATTORNEY DISCIPLINE I predict this will be quite handy for lawyers in the future dealing with difficult clients 
evilweasel fucked around with this message at 16:10 on Mar 23, 2015 |
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Mar 23, 2015 16:08
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Does anyone know what this DirectTV case is about?
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Mar 23, 2015 16:23
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FlamingLiberal posted:Does anyone know what this DirectTV case is about? quote:Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act. To save you the trouble, the answer with this court is always "yes, anything standing in the way of complete licence to set whatever arbitration terms you want is preempted." There is no chance California prevails and this is basically the Supreme Court slapping down the California Supreme Court.
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Mar 23, 2015 16:27
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evilweasel posted:In practice it's if California can invalidate arbitration agreements that apply class-action waivers. Reading a little more closely I won't be disappointed if it the court says they can't. It looks like the argument was as tortuous a reading of the contract as King v. Burwell seeks to be of Obamacare, along the lines of "The contract says California law applies whenever there's a dispute, and California says you can't force arbitration, therefore the federal preemption doesn't apply  "It probably should get smacked down as a "states' rights" issue should be, even if the outcome (and reasoning) is less than desirable. ComradeCosmobot fucked around with this message at 16:36 on Mar 23, 2015 |
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Mar 23, 2015 16:34
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ComradeCosmobot posted:Reading a little more closely I won't be disappointed if it the court says they can't. It looks like the argument was as tortuous a reading of the contract as King v. Burwell seeks to be of Obamacare, along the lines of "The contract says California law applies whenever there's a dispute, and California says you can't force arbitration, therefore the federal preemption doesn't apply Yeah, I think the original decision was an atrociously bad decision but I also don't really agree with this sort of attempt to evade it. But that rule applies generally: if anything seeks to get in the way of a company dictating arbitration terms, it's voided.
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Mar 23, 2015 16:41
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FlamingLiberal posted:The court agreed to take up a case on sentencing juveniles to life without parole today. I think on Friday here in FL our state Supreme Court ruled that a juvenile should not be subject to that. Our state is submitting a pet cert on that issue as well. EDIT: That's not quite what issue is being taken up...addressing whether their existing decisions apply retroactively. (Since it's 8th amendment, they probably do) ActusRhesus fucked around with this message at 17:56 on Mar 24, 2015 |
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Mar 24, 2015 17:54
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evilweasel posted:Yeah, I think the original decision was an atrociously bad decision but I also don't really agree with this sort of attempt to evade it. But that rule applies generally: if anything seeks to get in the way of a company dictating arbitration terms, it's voided. It does look like the CFPB might ban mandatory arbitration clauses (or at least ones blocking class actions) in contracts of adhesion for consumer financial products.
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Mar 24, 2015 21:54
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Shifty Pony posted:It does look like the CFPB might ban mandatory arbitration clauses (or at least ones blocking class actions) in contracts of adhesion for consumer financial products. That'd be pretty huge. I wonder, could such a decision move outward and against arbitration clauses more generally?
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Mar 24, 2015 23:28
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Discendo Vox posted:That'd be pretty huge. I wonder, could such a decision move outward and against arbitration clauses more generally? No, the Board's authority in it comes from 12 USC 5518. quote:The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers. The findings in such rule shall be consistent with the study conducted under subsection (a).
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Mar 24, 2015 23:35
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Discendo Vox posted:That'd be pretty huge. I wonder, could such a decision move outward and against arbitration clauses more generally? No. It would be a regulatory change and only cover things the CFPB can regulate. To move against arbitration clauses more generally you've got to amend the FAA.
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Mar 24, 2015 23:36
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I love this thread, but usually just lurk it. I've wantes to ask this question before, but here goes. For the constitutional lawyers in this thread, which justice would you pick for you from the Supreme Court if you had to pummel your agenda through and that justice would always align to to your politics? In other words, which justice is the most effective if we ignore the ideological differences? Or is this is a question too complicated to answer? If so, I'll take that as an answer, too.
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Mar 25, 2015 12:34
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