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twodot posted:People quote this a lot because it sounds funny, but it was, at that time, factually true right? For that decision, the Supreme Court ruling on factual innocence was novel. Which would have been fine as a historical observation in a concurring opinion, but Scalia was dissenting...
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Jun 6, 2015 19:22
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Bel Shazar posted:Actually, the more I think about it the more I think I would approach it as a violation of the establishment clause. The law merely declaring him real would probably be OK, it's the enabling legislation allowing a raft of additional police powers to ensure compliance with the "naughty or nice" list that might cause trouble. Turning over surveillance data to supernatural foreigners would also be problematic under Curtiss-Wright, though I suppose he and his elves could be granted citizenships and security clearances.
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Jun 6, 2015 19:46
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VitalSigns posted:Which would have been fine as a historical observation in a concurring opinion, but Scalia was dissenting...
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Jun 6, 2015 19:58
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twodot posted:If we think his dissent is wrong, shouldn't we be quoting the parts that we think are wrong, rather than the parts that are objectively true? I consider it beyond dispute that the American legal system has always viewed the execution of someone who is actually innocent as forbidden by the Constitution.
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Jun 6, 2015 20:28
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evilweasel posted:I consider it beyond dispute that the American legal system has always viewed the execution of someone who is actually innocent as forbidden by the Constitution. "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent."
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Jun 6, 2015 20:31
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twodot posted:I think this is a fair argument, but the quote isn't about what the Constitution forbids or even what the "American legal system" views, it's about what the Supreme Court has historically held: It is clearly established constitutional law that the constitution forbids the execution of someone who is innocent. That the Supreme Court had never applied that bedrock principle in a certain specific way is irrelevant: if Scalia were now to write the same passage, but tack on the word "female" to defendant, it would then be technically true in a certain sense since the Supreme Court only held it about a male defendant, and just as insane.
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Jun 6, 2015 20:36
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evilweasel posted:It is clearly established constitutional law that the constitution forbids the execution of someone who is innocent. That the Supreme Court had never applied that bedrock principle in a certain specific way is irrelevant: if Scalia were now to write the same passage, but tack on the word "female" to defendant, it would then be technically true in a certain sense since the Supreme Court only held it about a male defendant, and just as insane.
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Jun 6, 2015 20:39
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twodot posted:Allow me to rephrase, if we think Scalia's dissent is wrong, shouldn't we be quoting the wrong parts and not the parts that are objectively true, even if irrelevant? "There is a true but irrelevant sentence in Scalia's dissent" isn't very damning. They're quoting the part that's wrong. Scalia says there's nothing prohibitng the execution of an innocent person and he is dead (not literally, sadly) wrong on that. Scalia's just a goddamn psychopath.
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Jun 6, 2015 20:46
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Evil Fluffy posted:They're quoting the part that's wrong. Scalia says there's nothing prohibitng the execution of an innocent person and he is dead (not literally, sadly) wrong on that. Scalia's just a goddamn psychopath.
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Jun 6, 2015 20:51
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twodot posted:Allow me to rephrase, if we think Scalia's dissent is wrong, shouldn't we be quoting the wrong parts and not the parts that are objectively true, even if irrelevant? "There is a true but irrelevant sentence in Scalia's dissent" isn't very damning. That is the part that's wrong. It is not "true but irrelevant". It assumes and concludes a number of things are correct that are obviously incorrect: (1) that the question is not "does the Constitution forbid the execution of an innocent man", that (2) the Constitution does not forbid the execution of an innocent man, and (3) that the Supreme Court has never clearly ruled if the execution of an innocent man is repugnant to the Constitution. The quoted phrase is legally wrong, and not only is it legally wrong it makes abundantly clear that Scalia has an abhorrent view of the law and of justice: that the execution of an innocent person is constitutionally permissible provided that specific procedural steps were followed.
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Jun 6, 2015 20:53
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I mean, the basic thing that's wrong is you can write that sentence and not think "my reasoning here has led me to a conclusion so insane that I've clearly erred somewhere, I should go back and find it".
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Jun 6, 2015 21:01
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twodot posted:They are not. The bolded sentence says the Court has never held there's no prohibition. The next sentence says the question is unresolved despite opportunities to resolve it. Scalia's ultimate conclusion is what you're saying, but it's not actually in the quote. He's using that to support his conclusion, he's not just idly musing on it at tea on a summer's day and then somehow it ended up in his opinion, free-floating and unconnected to his argument.
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Jun 7, 2015 11:21
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VitalSigns posted:He's using that to support his conclusion, he's not just idly musing on it at tea on a summer's day and then somehow it ended up in his opinion, free-floating and unconnected to his argument.
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Jun 7, 2015 18:47
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Who said I was trying to engage with Scalia's argument? Someone posted a made up quote. I posted the real quote. Which is so good. I didn't realize that there was a more in-depth conversation about federal habeas proceedings going on where my one-liner really brought down the conversation. Oh wait. edit: if you wanted to have that conversation, I'd say that SCOTUS has unduly narrowed the concept of "clearly established Federal law, as determined by the Supreme Court of the United States," and Scalia's comment of the century is built upon that flawed characterization of the federal habeas statute Green Crayons fucked around with this message at 21:28 on Jun 7, 2015 |
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Jun 7, 2015 21:24
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6-3 in Zivotofsky that the Executive has exclusive authority to recognize a foreign country and thus Congress can't make the State department issue passports with Jerusalem indicated as being Israel. Scalia, Alito, and Roberts are very grumpy about it saying passports are not recognition and Thomas has his own concurring in part opinion which goes into Thomas legal theory land.
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Jun 8, 2015 15:17
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There's also a whole section of both Thomas's and Scalia's opinons about why the other is wrong
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Jun 8, 2015 15:37
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Scalia's dissents contain the best tantrums.
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Jun 8, 2015 15:39
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hobbesmaster posted:Scalia's dissents contain the best tantrums. I enjoy, immensely, that he basically laid out the strategy for gay marriage last round. Part of me wants it to be a masters class in trolling.
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Jun 8, 2015 15:47
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hobbesmaster posted:Scalia's dissents contain the best tantrums. I am so very looking forward to his Obergefell v. Hodges dissent.
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Jun 8, 2015 15:48
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So I am guessing that we won't get Robert's descent into the seventh circle/apotheosis (depending on your view) until later this week?
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Jun 8, 2015 15:51
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Zeroisanumber posted:I am so very looking forward to his Obergefell v. Hodges dissent. I'm expecting a bag of bloody paper shreddings damp with tears and sweat.
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Jun 8, 2015 16:06
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Deceptive Thinker posted:There's also a whole section of both Thomas's and Scalia's opinons about why the other is wrong This is pretty good, you never see this and it's so neat to see them snipe at each other. Also, Scalia does his mad "I dissent" instead of the standard "I respectfully dissent", despite the fact if Bush was still President he'd be on the other side. evilweasel fucked around with this message at 16:25 on Jun 8, 2015 |
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Jun 8, 2015 16:20
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When is the Obamacare decision expected again?
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Jun 8, 2015 16:36
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icantfindaname posted:When is the Obamacare decision expected again? June 29th (because that's the last day to issue orders without extending the term) because the most controversial decisions tend to come out last (because they're contentious and important so everyone wants to polish their opinions as much as possible, and the less charitable interpretation that they want to drop that opinion then get the hell out of dodge ASAP but they'd be stuck in DC if they announced it early). It could, however, be announced at any time.
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Jun 8, 2015 16:40
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What are the current odds that it gets hosed?
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Jun 8, 2015 16:47
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PhazonLink posted:What are the current odds that it gets hosed? The prediction market is giving it a 30% chance that they limit subsidies.
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Jun 8, 2015 16:53
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PhazonLink posted:What are the current odds that it gets hosed? I think, and I think the general opinion is, that the subsidies are more likely to be upheld than not but that it's at most like a 60-40 preposition (edit: guess not!). The reasons the subsidies will likely be upheld are (1) this is a much less plausible argument than the one Roberts blinked at in the first Obamacare case and (2) while Kennedy was gung-ho about killing Obamacare, he has problems with the approach laid out here giving too much power to the Federal government to coerce states just after he scored a significant win on that front with the Medicaid expansion and (3) this is a really, really, really dumb argument and even the conservatives will have some issues keeping a straight face and making sure a decision here wouldn't come back to haunt them next time there's ambiguity in a law. The counter-arguments are: (1) Four conservative justices voted to hear the case, which means one of Kennedy or Roberts wanted to hear it, and that those four justices thought there was a chance they'd win (2) This would let Roberts carve off part of Obamacare without having to sign onto striking down every single word like the rest wanted to do in the previous case (3) Kennedy probably voted to hear this case and his coercion arguments raised at the hearing could just as easily be converted into some way he strikes down the subsidies and then strikes something else down as coercive, or he could just go gently caress it, down with Obamacare.
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Jun 8, 2015 16:56
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Would there be an argument for the four conservative justices wanting to set a precedent that financial/economic incentives via government aren't sufficiently coercive to be considered suit-worthy and therefore they can point back at this ruling for when people bring arguments about financial/economic coercion via corporation and say "we've already gone over the question of whether the dangling of financial incentives before a person is considered improperly coercive and found it not to be even in the scope of the government offering the incentive, it would follow that a corporation, which is not under the constitutional restrictions as a government, is not improperly coercive when they offer incentives for certain behavior and it is the finding that x employee made y choice of free will rather than under financial coercion and is fully liable while their employer is free of liability."
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Jun 8, 2015 17:17
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FAUXTON posted:Would there be an argument for the four conservative justices wanting to set a precedent that financial/economic incentives via government aren't sufficiently coercive to be considered suit-worthy and therefore they can point back at this ruling for when people bring arguments about financial/economic coercion via corporation and say "we've already gone over the question of whether the dangling of financial incentives before a person is considered improperly coercive and found it not to be even in the scope of the government offering the incentive, it would follow that a corporation, which is not under the constitutional restrictions as a government, is not improperly coercive when they offer incentives for certain behavior and it is the finding that x employee made y choice of free will rather than under financial coercion and is fully liable while their employer is free of liability." They just held the opposite to require medicaid expansion to be limited. The coercion issue is the reading advanced by the anti-subsidies people would offer states a pretty coercive choice: make an exchange, or (likely) face a death spiral of your insurance market because all the Obamacare regulations would apply (e.g. guaranteed issue) except the mandate (because there's an exception when there's no affordable policy). Kennedy would not want to give the federal government the power to set such a coercive choice on a state - but he also doesn't want Obamacare to stand. I think the Robertsian thing would be to rule in favor of the government precisely because the anti-subsidies argument is unconstitutionally coercive so the Supreme Court must adopt the alternative response, and have a new weapon to strike down laws as violating "states rights" in the future.
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Jun 8, 2015 17:25
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which is all bullshit anyway because this doesn't even fail Chevron without failing the laugh test
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Jun 8, 2015 17:38
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Shifty Pony posted:6-3 in Zivotofsky that the Executive has exclusive authority to recognize a foreign country and thus Congress can't make the State department issue passports with Jerusalem indicated as being Israel. If a US citizen was born in Jerusalem, and the US doesn't recognize Jersulaem Israel, what does go on the passport then?
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Jun 9, 2015 02:14
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DOOP posted:If a US citizen was born in Jerusalem, and the US doesn't recognize Jersulaem Israel, what does go on the passport then? Probably just "Jerusalem". Comedy option: Aelia Capitolina
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Jun 9, 2015 02:21
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DOOP posted:If a US citizen was born in Jerusalem, and the US doesn't recognize Jersulaem Israel, what does go on the passport then? Jerusalem.
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Jun 9, 2015 02:48
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Solomon Grundy's Temple of the Rock/Al-Rocksa Mosque of Fame
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Jun 9, 2015 03:01
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NY Times posted:FREDERICKSBURG, Va. — Millions of people are waiting anxiously for the Supreme Court to decide the fate of President Obama’s health care law with a ruling this month on health insurance subsidies. But David M. King, a plaintiff in the case, is not among them. I can't even, jesus, what a contemptible piece of poo poo.
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Jun 18, 2015 00:34
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If they somehow punt on standing...
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Jun 18, 2015 00:48
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hobbesmaster posted:If they somehow punt on standing... My thoughts exactly. There is no harm being done.
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Jun 18, 2015 01:04
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There have been more than a few articles on left websites about how none of the plaintiffs have demonstrated valid standing, yet the government hasn't really hit on that so far.
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Jun 18, 2015 01:09
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I seem to remember reading somewhere that all the plaintiffs have similar problems with standing.
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Jun 18, 2015 01:09
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Rygar201 posted:There have been more than a few articles on left websites about how none of the plaintiffs have demonstrated valid standing, yet the government hasn't really hit on that so far. My understanding based on some commentary I recall reading is that the government would rather see the issue dead than to keep fighting it until someone has standing, so they're willfully turning a blind eye to the standing issue.
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Jun 18, 2015 01:12
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