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Samuel Alito posted:“Late at night when I was thinking about cases I would test out my ideas with Zeus. He generally agreed with me,” Justice Alito said. “But if I had a really hard case and I couldn’t figure out what to do,” he had a special way to reach a decision. At least flipping a loving coin has some honesty to it.
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Apr 21, 2017 23:09
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Chief Justice Air Bud is the only way to bring dignity back to the Supreme Court.
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Apr 21, 2017 23:21
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Potato Salad posted:Phone posting, so I'll keep this short: All while ignoring that any violation of the 10th, if it did exist, is superseded by newer amendments so if there's a concern about the 10th being in conflict with the 14th or 15th, the 10th loses. The SCOTUS's involvement in gutting the VRA is the very reason that the Civil War Amendments remove their authority on the matter and Obama, being the meek worthless piece of poo poo he is, just sat there and let it happen instead of calling out Roberts and forcing a showdown by attacking the ruling as illegitimate. The SCOTUS took the case solely because Roberts and the conservatives, but especially Roberts, wanted to destroy the VRA so the right could roll back civil rights and that's exactly what they've been doing ever since. The ruling was as nakedly political as Bush v. Gore and in many ways just as damaging. Roberts deserves a short rope and a long fall. Though so do a lot of others. Really it's Congress who should've stood up and said "uh, no, gently caress you Roberts your ruling means nothing" but since the GOP controlled Congress then and now, that wasn't going to happen. If/when the Dems ever retake both chambers the first thing they need to do is pass a resolution stating that the SCOTUS's ruling on that case is null and void per the 14th and if the SCOTUS doesn't like it well that's too loving bad. This ruling is one of several factors that has helped further cement GOP control over areas they would have a harder time with much like how the 2010 gerrymandering resulted in their current dominance in the House and dozens of states. Main Paineframe posted:Well, technically they can, since it's the Supreme Court that gets to decide what the 10th Amendment and 15th Amendment actually mean for the purposes of US legal interpretation. No, they really don't. If an Amendment says "the SCOTUS has no authority over matters of X" the SCOTUS doesn't get to say "well what that actually means is DERGHJFGOJHRFTXG and therefore we can rule on X." Not that it matters, because if Trump gets to replace Kennedy or a liberal we're going full on fascist theocracy long before Democrats will have the chance to do anything about it.
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Apr 21, 2017 23:38
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" way to interpret it, just a very.....narrow gray line. I think Ginsburg's dissent describes fairly well how cut and dry the case would have been had it been visited in whole, without the bits that actually protect people vacuumed away:
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Evil Fluffy posted:All while ignoring that any violation of the 10th, if it did exist, is superseded by newer amendments so if there's a concern about the 10th being in conflict with the 14th or 15th, the 10th loses. I may very well be making a fool of myself here, but I'm reasonably sure none of this is true - conflicting parts of the Constitution don't automatically resolve in favor of whatever Amendment was passed more recently, and the Reconstruction Amendments don't bar the Supreme Court from interpreting them or ruling on them. I agree that the ruling is bullshit that happened basically exclusively because Roberts hates the Voting Rights Act and there was a conservative majority, but it's because the reasoning was bullshit, not because the 15th is immune to judicial review.
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Apr 22, 2017 02:08
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Wait, is that thing about Alito's dog real? That's not some kind of satire blog post?
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Apr 22, 2017 02:13
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Main Paineframe posted:I may very well be making a fool of myself here, but I'm reasonably sure none of this is true - conflicting parts of the Constitution don't automatically resolve in favor of whatever Amendment was passed more recently, and the Reconstruction Amendments don't bar the Supreme Court from interpreting them or ruling on them. Next up: The 21st doesn't work, alcohol is still illegal.
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Apr 22, 2017 02:39
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hobbesmaster posted:Next up: The 21st doesn't work, alcohol is still illegal. The 21st explicitly repeals the 18th. Not remotely the same.
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Apr 22, 2017 02:42
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hobbesmaster posted:Next up: The 21st doesn't work, alcohol is still illegal. Shhhh gorsuch might hear you and try that plain language poo poo on how the Mayflower Compact didn't say a drat thing about booze
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Apr 22, 2017 02:43
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DeusExMachinima posted:The decision pretty explicitly said that singling out states run by the other party based on 40 year old data was unacceptable and the Dems could've passed universal pre-clearance to avoid that. It could've been done when they had the votes to get the ACA through unilaterally. But they just couldn't lower themselves to being in the same basket as the deplorables so now they got nothing. The VRA reauthorization was done in 2006 by a Republican Congress, and was not overturned until 2013 by which time Democrats had already lost control of the House.
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Apr 22, 2017 03:16
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Main Paineframe posted:I may very well be making a fool of myself here, but I'm reasonably sure none of this is true - conflicting parts of the Constitution don't automatically resolve in favor of whatever Amendment was passed more recently, This is only true because justices will go to almost any length to avoid reading the provisions as in conflict with one another in order to avoid finding implicit repeals. Here's the baseline rule they work from: SCOTUS posted:The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment. Posadas v National City Bank, 296 U.S. 497 (1936). Yeah, it's an old case, but that rule holds up.
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Apr 22, 2017 03:53
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Alternate interpretation: the 10th and 15th do not conflict. Both are short and consistent with each other. Go read them. Done? The 15th specifically delegates voting rights issues to Congress. By the 10th, the states thus do not have any claim here: "The powers not delegated to the United States by the Constitution..." There isn't an issue with amendment supremacy or implied repeal here. Potato Salad fucked around with this message at 04:25 on Apr 22, 2017 |
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Apr 22, 2017 04:23
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Potato Salad posted:Alternate interpretation: the 10th and 15th do not conflict. Both are short and consistent with each other. Go read them. The 15th doesn't have the word delegated in it. Therefore based on a plain reading of the amendment...
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Apr 22, 2017 04:32
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Neil Gorsuch posted:Based on a plain reading of the statute, there's no rule that says a dog can't play basketball
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Apr 22, 2017 04:34
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Main Paineframe posted:I may very well be making a fool of myself here, but I'm reasonably sure none of this is true - conflicting parts of the Constitution don't automatically resolve in favor of whatever Amendment was passed more recently, and the Reconstruction Amendments don't bar the Supreme Court from interpreting them or ruling on them. You are making a fool of yourself, because the later amendments do supersede the earlier amendments. Without this principal, the 14th amendment, arguably the most important amendment and the most important provision of the constitution, would be hamstrung. Also, amendments themselves are immune to constitutional review. The Supreme Court cannot declare an amendment unconstitutional, they can only declare its application unconstitutional. The court cannot say that congress does not have the right to pass laws under the 15th, they just said they can review these laws And there is no reason the 21st actually needed to state it repealed the 18th besides sound drafting EwokEntourage fucked around with this message at 04:41 on Apr 22, 2017 |
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Apr 22, 2017 04:39
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Main Paineframe posted:I may very well be making a fool of myself here, but I'm reasonably sure none of this is true - conflicting parts of the Constitution don't automatically resolve in favor of whatever Amendment was passed more recently, and the Reconstruction Amendments don't bar the Supreme Court from interpreting them or ruling on them. Newer Amendments do in fact supersede older ones and yes, amendments are immune to judicial review unless the country goes insane and passes an Amendment that gives that power to the judiciary. Bush v. Gore was a naked political power grab but in theory still legal, the SCOTUS gutting the VRA was outright illegal and invalid except Obama rolled over because he's meek garbage and the GOP leadership in Congress was A-OK with a ruling, valid or not, that allowed them to start passing discriminatory laws to help prop up their party by minimizing the ability of others to vote them out of office.
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Apr 22, 2017 08:38
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Kalman posted:This is only true because justices will go to almost any length to avoid reading the provisions as in conflict with one another in order to avoid finding implicit repeals. Here's the baseline rule they work from: Maybe I worded it poorly. I wasn't just talking about implicit repeals, I was talking about any conflict at all. For example, what if Congress passed a law (not an amendment) allowing warrantless searches of the homes of anyone accused of holding people in slavery? It would seem to be a law passed in service of enforcing the Thirteenth Amendment, which clearly falls into the enforcement clause of that amendment...But that doesn't mean the Supreme Court is barred from reviewing this obvious violation of the 4th Amendment just because the 13th is newer, as Evil Fluffy seemed to be suggesting! Potato Salad posted:Alternate interpretation: the 10th and 15th do not conflict. Both are short and consistent with each other. Go read them. Sure,, but that doesn't mean that it's illegal for the Supreme Court to review 15th-related cases at all, it just means Roberts made up some arbitrary bullshit in the pursuit of an obviously ideological result - the ruling's implication that laws have some kind of expiration date and weigh more and more heavily on states' sovereignty over time is basically incoherent, and I don't see that getting cited as precedent very often because it makes absolutely no loving sense and is impossible to boil any generally-applicable logic or principles out of. But going from that to "actually, the Supreme Court doesn't have the authority to hear 15th-related cases at all" is a really loving big leap.
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Apr 22, 2017 14:06
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Main Paineframe posted:Maybe I worded it poorly. I wasn't just talking about implicit repeals, I was talking about any conflict at all. For example, what if Congress passed a law (not an amendment) allowing warrantless searches of the homes of anyone accused of holding people in slavery? It would seem to be a law passed in service of enforcing the Thirteenth Amendment, which clearly falls into the enforcement clause of that amendment...But that doesn't mean the Supreme Court is barred from reviewing this obvious violation of the 4th Amendment just because the 13th is newer, as Evil Fluffy seemed to be suggesting! I think that Potato Salad is misstating it. It's not that the Supreme Court has no jurisdiction to hear any cases relating to the Civil War amendments: it is obviously the place of the Supreme Court to strike down state laws and even federal laws that conflict with the Civil War amendments. If a state passes a law banning black people from voting, that law is invalid without the need for Congressional intervention. What it lacks is any authority to tell Congress that the laws it passed to enforce the civil rights amendments aren't appropriate: Congress was given that authority because the Supreme Court was not trusted to be the final word and because states are not trustworthy and need to be blocked from coming near violating the 15th, not just barred from actually passing explicit racial disenfranchisement laws. The Supreme Court's sole role on any law passed under Congress's power to enforce the 15th Amendment is to check to make sure that there is any rational basis for saying it is enforcing the 15th Amendment. If Congress passes a law banning recognition of same-sex marriages under its 15th Amendment powers, the Supreme Court has the right to strike that down. If Congress passes a law that the State of Alabama has been found to be racist because it elected Jeff Sessions and is going under preclearance, then that's within Congress's powers. Hell, putting New Hampshire under preclearance due to a quirk in the VRA was legitimate (New Hampshire basically never had any black people to discriminate against so they had no reason to bother, but it had a literacy test in its constitution since the revolutionary times and a few areas with low turnout, so it got caught up in preclearance) even though there is slim to no evidence NH ever bothered to disenfranchise its like, four black voters. Congress made a rational decision and even though New Hampshire doesn't appear to have been doing anything wrong, Congress was well within its rights to place New Hampshire under preclearance (they were able to bail out eventually precisely because they weren't). But as to the 10th, the history of the Civil War amendments makes abundantly clear that the 10th Amendment's more general "federalism" concerns are right out the window. The Civil War Amendments were part of a restructuring of the United States where states lost a great deal of their earlier independence. They were passed while states were under military occupation. This isn't a case of some potential edge case conflict, this is a case where yes, the "penumbras" of the 10th Amendment were absolutely implicitly repealed. State dignity means exactly gently caress-all if Congress has made the determination that they're violating one of the civil war amendments. They were stripped of that perticular dignity and independence. So it's not a case where you should try to read them in harmony: the history of the civil war amendments makes it clear that the 10th has no role here. evilweasel fucked around with this message at 14:33 on Apr 22, 2017 |
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Apr 22, 2017 14:29
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That thing about New Hampshire is 100% true. How you got placed under preclearance was if you had any of the traditional ways to block voting, like a literacy test, and turnout below a certain level in a handful of measured federal elections, you got put under preclearance. New Hampshire had a literacy test - though not the southern-style literacy test where it was impossible - and is a sparsely populated state, so a chunk of counties just happened to have low turnout because their low population made their turnout more susceptible to random chance depressing it below the turnout cutoff that got you under preclearance. New Hampshire later looked into those counties and found most of them didn't have any black people or had a single black family. So obviously, the low turnout wasn't due to supressing black voters, but that's how the law works, and that meant New Hampshire was under preclearance.
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Apr 22, 2017 14:36
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Main Paineframe posted:Maybe I worded it poorly. I wasn't just talking about implicit repeals, I was talking about any conflict at all. For example, what if Congress passed a law (not an amendment) allowing warrantless searches of the homes of anyone accused of holding people in slavery? It would seem to be a law passed in service of enforcing the Thirteenth Amendment, which clearly falls into the enforcement clause of that amendment...But that doesn't mean the Supreme Court is barred from reviewing this obvious violation of the 4th Amendment just because the 13th is newer, as Evil Fluffy seemed to be suggesting! That's an instance where, because there's no clear conflict in the amendments, there's no clear evidence of repeal so they'd make it fit both (by saying "of course enforcement doesn't extend to violating the 4th.") If it had been an amendment, then they'd have to find implicit repeal even if it purports to uphold the 4th, and because the hypothetical amendment is newer it would control.
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Apr 23, 2017 00:51
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Kalman posted:That's an instance where, because there's no clear conflict in the amendments, there's no clear evidence of repeal so they'd make it fit both (by saying "of course enforcement doesn't extend to violating the 4th.")
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Apr 23, 2017 16:00
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twodot posted:Saying it's obvious that the powers of a newer amendment don't override the restrictions of an older amendment, where there's no explicit text saying either way, looks identical to saying that the ordering of amendments is irrelevant to how they overlap to me. Like maybe there's a deference to new amendments, but if you can make this kind of calculation, it's just a deference. If there's no explicit text either way, then another (higher priority) rule that you construe against constitutional conflicts takes over. That's the rule that says you don't manufacture unconstitutionality if there's a way to avoid it. It's a strong rule with statutes - with amendments, the Court is going to bend over backwards to avoid finding conflicts. It's not actually that hard to understand. You don't read the amendments as conflicting if you don't absolutely have to; if you have to read them as conflicting, then newer takes priority.
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Apr 24, 2017 01:03
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https://twitter.com/jonkarl/status/856203311145504769 So this is weird right?
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Apr 24, 2017 01:29
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e: nm, not actually that funny
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Apr 24, 2017 01:37
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Quick thought regarding the US supreme court and the threat of 'court packing'. Is this actually a legitimate policy a future US presidential candidate and/or party should pursue? I don't mean the whole 'we're going to cancel out the stolen seat, this isn't really court packing but totally non partisan' bullshit that's been mentioned earlier. That's an attempt to preserve the status quo that is a clear invitation to a side that has fewer scruples to engage in far worse court packing the next time they can. I can see the motivation behind such an approach and appreciate it but strategically it will result in the next Republican appointing 5 Originalists to the court in a nakedly partisan move that will really, really damage the SCotUS' legitimacy. I really can't see that turning out any other way. Instead I wonder if a more radical approach might serve to defuse the SCotUS situation somewhat. Currently one of the major reasons a SCotUS appointment is so important is because of how relatively few there are. Any random president gets a pretty random number of appointments in his term and thanks to Republican precedent there's now the potential of a good 11-13 months where they may not get one at all every 4 years. It turns SCotUS into a political football and encourages not only the appointment of more extreme justices (if you're a Republican, the Democrats still don't seem to be willing to play that game hence this idea). A more radical approach might help moderate the court. The basis of the idea would be following through FDR's proposal and expand the court to 21 justices. Obviously this fever dream requires Ds in the Senate and the Presidency, this is easy to spin as partisan court packing so for genius part two. Putting forward a constitutional amendment to change the selection of SCotUS appointees from a Presidential power to one by a committee with a randomly selected representative from each federal court circuit and two from each major political party. They would select a replacement candidate or in case of a failure to get a majority backing after say 2 weeks of consideration, the 2 nominations with the largest plurality would be selected by a tie break vote by the President. The actual mechanism of step 2 is something I have no idea about but I'm wondering as a theoretical exercise in reducing the politicisation of the court if there may be a way forward that isn't picking up the fractured pieces and going 'it's still good! Look we can fix it, it's still good!' or accepting then dehumanising and facing to court packing. I think Dems using the threat of court blocking to effect a structural change has the possibility of working. With the worsening politicisation of the other branches of government I'm not sure if the US system will continue to function well without a serious intervention. I'd hope that the threat of essentially MAD with one whole branch of government would be a big enough threat to engender some level of co-operation.
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Apr 24, 2017 02:37
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You're just going to see the GOP game the system with blind lockstep. Current judges may not participate, but you bet your rear end every conservative appointment afterward would be selected for their capacity to goose step in unison and break whatever mechanics your proposal puts forward.
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Apr 24, 2017 11:19
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Kalman posted:It's not actually that hard to understand. You don't read the amendments as conflicting if you don't absolutely have to; if you have to read them as conflicting, then newer takes priority.
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Apr 24, 2017 17:00
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Wouldn't someone notice the conflict when the amendment was being drafted, realistically? I assume it would get a lot of scrutiny.
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Apr 24, 2017 17:06
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There is never a reason for conflict. Newer amendments take precedence over older ones.
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Apr 24, 2017 17:18
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The explicit text in the Bill of Rights that its amendments restrain only the Federal Government has been superceded by the 14th without the text of the 14th explicitly modifying the Bill of Rights. The 1st Amendment says only that Congress shall not do these things, yet now because of the 14th, neither may states. The inferences from the 14th's broad protections of individual liberty against state (i.e., us state) power trump the limitations of the bill of rights.
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Apr 24, 2017 17:40
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Exactly. The easy way to think about it is this: the constitution is fixed in place with all of the current amendments. A newer amendment is an explicit modification of the previous constitution. Thus any new amendments necessarily supersede older ones.
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Apr 24, 2017 17:54
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Also, nobody is saying the Civil War Amendments overturned the 10th entirely. It's still part of the Constitution. But what they did was replace the strong federalism inferences that the 10th put into the Constitution - that states are independent sovereigns, due full respect as such, and have lost only the rights they granted to the federal government - with the inferences that the Civil War Amendments put into the Constitution: the federal government is supreme and states are subordinate sovereigns, most especially in the area of civil rights. As history books put it, they moved the United States from being an "are" to an "is". Now, certain aspects of the former way of thinking about states still do exist. The federal government is still a government of enumerated powers, and states are still independent sovereigns in certain key areas. But where they are not is the area of civil rights. The Civil War Amendments cleared that particular field completely.
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Apr 24, 2017 18:03
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evilweasel posted:But where they are not is the area of civil rights. The Civil War Amendments cleared that particular field completely. And the VRA patched the capacity for a hostile court to ignore the Civil War amendments -- at least until the game was rigged and dogwhistles appropriately tuned to permit a barely-superficially-if-you-are-predisposed-to-think-blacks-have-unfair-racial-entitlements-to-vote ruling to stand in a nation increasingly warped by talk radio and Chevrolet commercial fantasies. Potato Salad fucked around with this message at 18:12 on Apr 24, 2017 |
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Apr 24, 2017 18:10
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Potato Salad posted:blacks-have-unfair-racial-entitlements-to-vote Sorry to tangent, but this has always bothered me. How can someone legitimately think this is a thing.
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Apr 24, 2017 22:09
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https://twitter.com/lawrencehurley/status/856554845012193282
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Apr 24, 2017 22:58
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hangedman1984 posted:Sorry to tangent, but this has always bothered me. How can someone legitimately think this is a thing. I have wanted to know why the VRA pissed off Roberts too. I've always assumed it was usual FS-type reasoning.
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Apr 24, 2017 23:59
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SCOTUS is likely going to get another crack at killing public sector unions https://twitter.com/josheidelson/status/856634442416349185
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Apr 25, 2017 00:41
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Potato Salad posted:You're just going to see the GOP game the system with blind lockstep. Current judges may not participate, but you bet your rear end every conservative appointment afterward would be selected for their capacity to goose step in unison and break whatever mechanics your proposal puts forward. Like I said, I'm not really sure what kind of mechanism would or even could work. The US system is so heavily appointment led that there isn't really a professional bureaucracy that can be appointed and making a Senate committee might serve to entrench it unless you made it so the President had the power to appoint, positions were awarded in accordance with % of caucus in the senate but 2/3 majority was required for appointments with no discretion over whether or not to hear candidates. It would give the minority an absolute veto but also require they be on the record as voting for or against... Although I guess if you've got Freedom Caucus types or one side only fear primaries it may be the case that they would be willing to leave positions open and disrupt functioning of the court? The main idea though would be increasing the size of the SC and perhaps making it more similar to any other Federal Circuit (with panel hearings and the possibility for en banc hearings) would defuse a lot of the political pressure behind the appointments by virtue of making individual appointments less powerful. It would also increase the chances of Presidents getting a few and so even out influence. I don't think there's any realistic way to simply put the genie back into the bottle in terms of depoliticising the court, the Dems are going to see their agenda damaged by it again and again unless they either drop to the same partisan level (in which case the court will become publicly undermined) or they seek to change the nature of the game. Also the 'later amendments supersede earlier documents' is a pretty common sense aspect of reading regulations. An analogy would be rules for a local library that say "patrons may borrow 5 items for up to 4 weeks simultaneously". Imagine back in the late 90s they get some DVDs which prove very popular but they're expensive and they don't have many so they add a rule that "patrons may only borrow 2 DVDs for a maximum of 1 week simultaneously". Since the second rule is more recent, someone wouldn't be able to argue that since they're entitled to 5 items and a DVD is an item they are allowed 5 DVDs because that's a more recent and specific rule. In the library case you'd probably go back and amend the first rule but as far as I'm aware the Constitution is pretty much as. An amendment that changes core rules is included as an amendment rather than going in and changing the wording of the original document. If that's not an option then allowing people to pick what should apply in cases of a clear conflict would make it impossible to change anything actually spelled out in the document already.
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Apr 25, 2017 01:41
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https://twitter.com/SamHananelAP/status/856912801608196096 Isn't Breyer the one who doesn't (or didn't) even use e-mail. Or am I confusing him with a different Justice?
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Apr 25, 2017 18:05
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Capt. Sticl posted:https://twitter.com/SamHananelAP/status/856912801608196096 I think you're thinking of Souter. I don't know that's true, but Souter is the loner from New Hampshire so it sounds right.
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Apr 25, 2017 18:05
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Capt. Sticl posted:https://twitter.com/SamHananelAP/status/856912801608196096 Missing the crucial detail of what his ringtone was.
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