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Smudgie Buggler posted:He's going to secure the deal by negotiating it in public. It doesn't need to be indivisibly tied. Trump has been spectacularly disinterested in acting consistently with his previous public statements.
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Jun 28, 2018 04:24
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Smudgie Buggler posted:Five hours ago you were taking someone to task for suggesting packing SCOTUS is a terrible idea, so I find it ironic that you're using "but that's not The Done Thing" to help cope here. He's going to secure the deal by negotiating it in public. It doesn't need to be indivisibly tied. I'm not saying it's not possible because it "not a thing that's done". I'm saying it's politically impossible, because Democrats absolutely do not and can not trust Trump (or the Republicans) to keep a deal that requires him to do something later in exchange for something now. And the Republicans aren't going to give something now in exchange for something later from the Democrats, because a) they don't have to, b) it would make them look weak, and c) they don't trust the Democrats either. There's a reason that eliminating earmarks hosed our political process.
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Jun 28, 2018 04:27
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Eh Democrats are dumb enough to do it, they just did it on the budget in return for a promise to fix DACA (which never came). Schumer would so run at that football.
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Jun 28, 2018 04:29
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VitalSigns posted:Eh Democrats are dumb enough to do it, they just did it on the budget in return for a promise to fix DACA (which never came). Well, to be fair, they caved on the budget for a promise to talk about DACA, which the Republicans did. And then didn't vote for it. Great deal-makers.
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Jun 28, 2018 04:33
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Ah technically we only gave Trump the wall in exchange for a talk about nominating a moderate justice. And we did have that talk, and the answer was "haha gently caress no and gently caress you"
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Jun 28, 2018 04:36
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VitalSigns posted:Eh Democrats are dumb enough to do it, they just did it on the budget in return for a promise to fix DACA (which never came). A good point, but I'm skeptical that even Schumer would keep touching that rail, especially when he got hammered so badly last time.
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Jun 28, 2018 04:36
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Trump isn’t going to have a single goddamn thing to do with this, except to inject as much chaos and animosity into the process as possible. He’s going to nominate whatever ghoul Stephen Miller sources from the fevered hive mind of the D-list Republican think tanks.
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Jun 28, 2018 04:45
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Kobayashi posted:Trump isn’t going to have a single goddamn thing to do with this, except to inject as much chaos and animosity into the process as possible. He’s going to nominate whatever ghoul Stephen Miller sources from the fevered hive mind of the D-list Republican think tanks. Trump already has a Supreme Court list, he released it during his campaign as an actual campaign promise. He's simply going to nominate the youngest person on that list.
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Jun 28, 2018 06:20
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Xequecal posted:Trump already has a Supreme Court list, he released it during his campaign as an actual campaign promise. He's simply going to nominate the youngest person on that list. He even has it on the White House site for reference.
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Jun 28, 2018 06:49
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Shady Amish Terror posted:So being a moron with a limited education on judicial matters, are there any good examples of functioning court systems in the world that I should read up on that aren't prone to political misuse in the way ours obviously is and always was? I have trouble imagining a system that isn't a constant ideological battle and inevitably prone to hijacking in this way, but it could be a lack of imagination given the system I grew up under. Depends. There are no "perfect" systems, but a good place to look would be to follow the rule of law index from the World Justice Project: https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2017%E2%80%932018 Just start at number one (Denmark) and work your way down. I guess I could answer questions if you have them, but they might get fairly in-depth and  and I don't know if that would be outside of the scope of this thread. Basically, in my opinion you should mainly look at the WJP list at countries outside the common law tradition.
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Jun 28, 2018 07:53
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evilweasel posted:The number of seats on the Supreme Court is set by law. You just change that law, expanding it from 9 to 11, then fill those vacancies. It just takes a simple majority in Congress (after you abolish the filibuster). Acebuckeye13 posted:Of the three branches the Supreme Court has the least amount of constitutional definition, with no set number of judges and no requirements for justices other than they be nominated by the President with the 'advise and consent' of the Senate. It's been at 9 seats for most of the country's existence out of tradition, however, and when Roosevelt attempted to 'Pack' the court (Via a complex scheme that would have appointed a new justice for every sitting member over the age of 70), he attempted to do it through legislation-which ultimately failed, since it splintered Roosevelt's New Deal coalition between those who supported Roosevelt (despite their misgivings over the plan) and those who outright opposed it. Thanks for the explanation. Guess you guys need to pack those courts first chance you get...
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Jun 28, 2018 08:10
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On the other hand, a better way might be to do it legislatively, since a legislative cap on the number of seats would make it harder for the Republicans to simply pack the court themselves if they got back into power (And could potentially be wrapped within a general expansion of the federal judiciary, both to pack the courts with non-insane judges as well as for the practical purpose that the system simply needs more judges, given the current volume of cases).
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Nice piece of fish posted:Depends. There are no "perfect" systems, but a good place to look would be to follow the rule of law index from the World Justice Project: I posted about this earlier but the US judicial system is an outgrowth that basically papered over the cracks in the Constitution and now that paper has been torn up and fed to frothing at the mouth Heritage Foundation staffers. Basically, even if you could, you can't just replace the judiciary with a better version and fix the problem. Take cases like Roe and Loving. These were, at the core, the judicial system becoming the release valve for unsustainable social tension within America that the political system was incapable of resolving (because the basic building blocks of the system were built in the 1780s). These decisions are the court at its best and brightest: creating and establishing basic rights through jurisprudence and interpreting the Constitution as its best possible form, not its worst possible form. I mean Justice Douglas's "penumbra" is basically a magic trick to create rights that didn't exist but ought to exist. In functional systems, the judiciary doesn't need to enforce fundamental human rights out of whole cloth (at least all the time), because those human rights already exist in them, or the political system is capable of adding them when necessary. Having to go the supreme court of the land has been the atypical way of achieving equal marriage rights. Then it's the judiciary's job to protect and enforce those rights, not bring them into existence. This is all very philosophical of course, but the summary is that - America is exceptional (of course, probably not unique) in having such an extremely powerful SCOTUS - however, during 1950-2000 an extremely powerful SCOTUS was sometimes the only solution to intractable political problems as the political system realigned and the liberal faction of the GOP withered away - however, just like the imperial Presidency, this institution is extremely vulnerable to rollbacks when bad faith actors who don't like human rights take it over
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Jun 28, 2018 09:24
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Sulphagnist posted:I posted about this earlier but the US judicial system is an outgrowth that basically papered over the cracks in the Constitution and now that paper has been torn up and fed to frothing at the mouth Heritage Foundation staffers. Basically, even if you could, you can't just replace the judiciary with a better version and fix the problem. Fantastic point and the focus on enforcement of legislatively founded rights and duties is a key difference between - for instance - the nordic or germanic models of justice and the US. Really, even if you implemented a "proper" supreme court which was mostly only preoccupied with loyally implementing the "will of the people" as expressed through legislation through mostly a call to that authority, it would still not fix the problem of the legislature. It really boils down to that a democracy can't function without the central and most powerful role being that of a functioning and sincere law-giver that accurately represents the will of the people. You can't and shouldn't rely on SCOTUS to "fix" a lack of proper legislation or weigh in on political - as opposed to purely legal - issues mostly de lege ferenda. Only under extreme and unusual circumstances should a supreme court depart from legislative intent into creating new rules, and it's a sorry indictment of the entire legislative system that SCOTUS has taken on this role in the past and continues to do so. Of course, it's not that simple when you mix in the issue of constitutional issues, ad hoc constitutional interpretation (ad hoc argumentation is always bad, folks) and a lack of a quality constitutional convention to repair flaws/omissions in the constitution. Now we're getting into questions of american constitutional law that I'm not remotely qualified to comment on, but I think I can claim that simply the "replacing" of SCOTUS isn't going to fix the issue.
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Jun 28, 2018 10:16
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Several people have brought up Shelby County as a great example of SCOTUS just doing its own partisan thing. I would strongly suggest anyone who's eyes glaze over reading that to go listen to the oral arguments which are on the left hand side of that page. I would love to pick excerpts...but honestly the whole of the oral arguments are damning as hell. It's also pretty damned hard to listen to because you can tell that Roberts doesn't give a poo poo when he flippantly asks General whether it is "the government's submission that the citizens in the South are more racist than citizens in the North?" This is one of those cases people who pay attention to when they say Roberts cares about Stare Decisis because Roberts had a serious problem with the formula being used, General states SCOTUS has upheld that formula four different times before, and Roberts just stays completely unconvinced. Scalia literally argued that the Voting Rights Act doesn't need to exist anymore because no Senator voted against it because they'd be committing political suicide...and thus SCOTUS should just get rid of it to help them save face. Because, obviously, racism is no longer a thing! Kagan rightly points this out near the end that, in effect, the Petitioner was asking for the Judiciary to be the arbiter of whether or not racial discrimination has been solved and that she didn't think that the Judiciary could answer that question. Of course, ultimately, the majority decided they did want to be the people who decided that discrimination had been solved. Anytime someone tells me that Roberts cares about precedent I just point at this case because it's so blatantly loving obvious that he doesn't if it's a pet issue.
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Jun 28, 2018 12:22
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It’ll be nice to see the back of the least principled member of the court. Say what you will about the tenets of Alito’s and Sotomayor’s “my side always wins” jurisprudence, at least it’s an ethos.
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Jun 28, 2018 13:56
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Crashrat posted:Anytime someone tells me that Roberts cares about precedent I just point at this case because it's so blatantly loving obvious that he doesn't if it's a pet issue. Also Roberts is deeply and profoundly conflicted on voting rights. It's almost unbelievable to think that, at 26, he was responsible for the hyper-conservative legal strategy behind Reagan administration's opposition to the VRA and two decades later successfully followed through in the highest court in the land.
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Jun 28, 2018 14:23
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Sulphagnist posted:I posted about this earlier but the US judicial system is an outgrowth that basically papered over the cracks in the Constitution and now that paper has been torn up and fed to frothing at the mouth Heritage Foundation staffers. Basically, even if you could, you can't just replace the judiciary with a better version and fix the problem. This is an excellent post.
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Jun 28, 2018 15:13
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Incidentally, is there any precedent regarding what might happen if anything directly involving Trump - impeachment proceedings, a contested election, whatever I dunno - ends up in front of the Supreme Court? Is there any reason to think people would expect Donald's appointments to recuse themselves?
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Jun 28, 2018 15:15
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Spiritus Nox posted:Incidentally, is there any precedent regarding what might happen if anything directly involving Trump - impeachment proceedings, a contested election, whatever I dunno - ends up in front of the Supreme Court? Is there any reason to think people would expect Donald's appointments to recuse themselves? They'll just cite to bush v gore in all its precedential glory
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Jun 28, 2018 15:19
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How likely do you think it is that when the SCOTUS overturns Roe, instead of deciding that states can outlaw abortion, they rule that it's unconstitutional to allow abortion on 14th amendment grounds or something?
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Jun 28, 2018 16:42
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Zoran posted:How likely do you think it is that when the SCOTUS overturns Roe, instead of deciding that states can outlaw abortion, they rule that it's unconstitutional to allow abortion on 14th amendment grounds or something? Not at all. You might get a concurrence from someone in the majority arguing it, but even that strikes me as questionable.
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Jun 28, 2018 16:47
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How likely is x in general is an impossible question because we have a hellscape funhouse of scotus not seen since before the civil war
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Jun 28, 2018 16:50
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Just realized I want to see a Dick Posner obit for Kennedy’s legal career, given his own crazy trajectory in his final years on the bench.
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Jun 28, 2018 17:15
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Oh man, I posted my late night freakout in the wrong thread. Sorry, Trumpers. I keep hearing Kavanaugh, but I can't find anything (I would consider) definite. In fact... has Trump even acknowledged the Supreme Court yet?
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Jun 28, 2018 17:32
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Zoran posted:How likely do you think it is that when the SCOTUS overturns Roe, instead of deciding that states can outlaw abortion, they rule that it's unconstitutional to allow abortion on 14th amendment grounds or something? It wouldn't happen immediately but it would absolutely start getting litigated once Roe was overturned.
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Jun 28, 2018 17:32
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Spiritus Nox posted:Incidentally, is there any precedent regarding what might happen if anything directly involving Trump - impeachment proceedings, a contested election, whatever I dunno - ends up in front of the Supreme Court? Is there any reason to think people would expect Donald's appointments to recuse themselves? The GOP's long history of not giving a gently caress about anything that doesn't further its own goals. Zoran posted:How likely do you think it is that when the SCOTUS overturns Roe, instead of deciding that states can outlaw abortion, they rule that it's unconstitutional to allow abortion on 14th amendment grounds or something? "Abortion is murder" is going come up in the decision that overturns Roe. Even if it's not signed off on by the entire conservative majority there will be multiple justices writing in concurrence stating abortion = murder and that life begins at conception, which will be used as the foundation to start criminal prosecution of abortion providers and seekers.
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Jun 28, 2018 17:47
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Hieronymous Alloy posted:It wouldn't happen immediately but it would absolutely start getting litigated once Roe was overturned. How? Who could possibly have standing there, how could any case not be moot before it gets to the SC? I mean, the court could allow a federal ban if Congress passed one, but there's no realistic path to them imposing one on their own.
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Jun 28, 2018 17:50
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It’s really hard to see how abortion can be a federal crime. Would anyone other than Alito twist the Lucas line of cases that much?
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Jun 28, 2018 17:53
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Wxhode posted:It’s really hard to see how abortion can be a federal crime. Would anyone other than Alito twist the Lucas line of cases that much? Sure they can, they'll use a civil rights argument if they want to get there
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Jun 28, 2018 17:58
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Spiritus Nox posted:Incidentally, is there any precedent regarding what might happen if anything directly involving Trump - impeachment proceedings, a contested election, whatever I dunno - ends up in front of the Supreme Court? Is there any reason to think people would expect Donald's appointments to recuse themselves?  If anything RBG will be under immense pressure from the right to recuse herself on the grounds that her wearing her dissent collar after Trump won the election shows animus towards him that could impact her ability to be impartial to the facts.
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Jun 28, 2018 17:58
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Wxhode posted:It’s really hard to see how abortion can be a federal crime. Would anyone other than Alito twist the Lucas line of cases that much? Thomas has been laying down concurrences for decades that the penumbra of rights that flow from the due process clause of the 14th are all wrongly decided and unconstitutional. It's pretty easy for anyone to just cite 100% of Thomas' concurrences/dissents as good reason to overturn Griswold, Roe, Lawrence, and so on. That's the reason he's been doing it for so long. It's the groundwork to flip any of that on it's head, and he always has a privileges and immunities justification included for any laws he likes that would be overturned.
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Jun 28, 2018 17:59
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Wxhode posted:It’s really hard to see how abortion can be a federal crime. Would anyone other than Alito twist the Lucas line of cases that much? A Congress inclined that way would likely use the Fetal citizenship route, letting the courts use/twist the 14th and the body of civil rights laws to do the work.
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Jun 28, 2018 18:02
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Nonetheless, murder is a state crime unless it's happening in coastal bodies of water and other places where the federal government has sole jurisdiction. The federal government can consider an abortion murder but can not dictate to states to prosecute it as such.
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Jun 28, 2018 18:08
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Zoran posted:How likely do you think it is that when the SCOTUS overturns Roe, instead of deciding that states can outlaw abortion, they rule that it's unconstitutional to allow abortion on 14th amendment grounds or something? Unnecessary. Congress could easily pass a law banning abortions absent the Roe decision. Blah blah interstate commerce blah blah Raich blah blah Wickard.
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Jun 28, 2018 18:12
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ulmont posted:Unnecessary. Congress could easily pass a law banning abortions absent the Roe decision. Blah blah interstate commerce blah blah Raich blah blah Wickard. Wouldn't the court have to weigh in eventually, even if only to deny cert? If congress passed a law like that, it would challenged the second it made it out the door.
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Jun 28, 2018 18:16
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Thranguy posted:A Congress inclined that way would likely use the Fetal citizenship route, letting the courts use/twist the 14th and the body of civil rights laws to do the work. Yeah, here's what I’m thinking the court could do: ‘We cite Amendment XIV, Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” We find here that unborn fetuses are persons within the meaning of the 14th Amendment; that the Constitution creates an affirmative requirement for the states to outlaw any acts that would deprive a person of their life without due process; that there is no process that could qualify as “due process” for the purposes of killing a fetus; and thus abortion is outlawed forever.’
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Jun 28, 2018 18:18
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Zoran posted:Yeah, here's what I’m thinking the court could do: yeah you could trivially make up a bullshit argument that the states, by legalizing abortion, are violating equal protection by selectively allowing murder of persons and therefore congress, under its authority to enforce the 14th, may ban abortion and a bullshit argument is all scotus conservatives need
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Jun 28, 2018 18:24
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Sulphagnist posted:I posted about this earlier but the US judicial system is an outgrowth that basically papered over the cracks in the Constitution and now that paper has been torn up and fed to frothing at the mouth Heritage Foundation staffers. Basically, even if you could, you can't just replace the judiciary with a better version and fix the problem. I disagree that this is optimal. How do you create a legislative system that automatically respects "rights" without some sort of independent oversight organization tasked with ensuring those rights are respected? You don't - you simply wait for the majority to get off their rear end and respect your rights. Legislative fixes to things like civil rights are suboptimal for exactly that reason, and doubly-so in a country divided in semi-sovereign states. Striking laws on the basis of animus and unequal protection is not some arbitrary system "creating rights" out of thin air - it is fundamentally the principled protection of vulnerable populations from unequal and targeted legislation. Such legislation should have to be defended on merit. I mean, this was the argument in the circuit split of Obgerfell - if you want gay marriage, convince your neighbor to drop their animus. But what the gently caress good is a legislative system if it only sides with the majority? We already have a legislature to do that? That's why I roll my eyes when I see people post things like: Wxhode posted:It’ll be nice to see the back of the least principled member of the court. Say what you will about the tenets of Alito’s and Sotomayor’s “my side always wins” jurisprudence, at least it’s an ethos. There's a big difference between Sotomayor's jurisprudence and Alito's, and it's certainly not "my side always wins". E: If anyone has more information about how other countries deal (or don't) with the issue of legislative animus and legislative protections, I'd be happy to revise my opinion - I'm definitely not knowledgeable about the varieties of legislative systems and their successes/failures. Stickman fucked around with this message at 18:51 on Jun 28, 2018 |
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Jun 28, 2018 18:28
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Stickman posted:I disagree that this is optimal. How do you create a legislative system that automatically respects "rights" without some sort of independent oversight organization tasked with ensuring those rights are respected? You don't - you simply wait for the majority to get off their rear end and respect your rights. Legislative fixes to things like civil rights are suboptimal for exactly that reason, and doubly-so in a country divided in semi-sovereign states. Striking laws on the basis of animus and unequal protection is not some arbitrary system "creating rights" out of thin air - it is fundamentally the principled protection of vulnerable populations from unequal and targeted legislation. Such legislation should have to be defended on merit.
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Jun 28, 2018 19:13
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Wxhode posted:It’s really hard to see how abortion can be a federal crime. Would anyone other than Alito twist the Lucas line of cases that much? Abortion violates the free speech right of the unborn child's potential future earnings.
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Jun 28, 2018 19:16
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