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tagesschau posted:Judicial review is a natural consequence of there being a court of last resort. The claim that this concept didn't exist before 1803 is not drawn from facts. If this is true then why was Marshall so eager as early as possible to establish the precedent that he presided over Marbury vs Madison despite his clear conflict of interest as the Secretary of State who'd sealed and had his brother deliver the confirmation of the Midnight Judges like Marbury?
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May 15, 2022 11:47
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forkboy84 posted:If this is true then why was Marshall so eager as early as possible to establish the precedent that he presided over Marbury vs Madison despite his clear conflict of interest as the Secretary of State who'd sealed and had his brother deliver the confirmation of the Midnight Judges like Marbury? Sounds more like he should have recused himself than that judicial review is not real.
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May 15, 2022 14:05
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forkboy84 posted:If this is true then why was Marshall so eager as early as possible to establish the precedent that he presided over Marbury vs Madison despite his clear conflict of interest as the Secretary of State who'd sealed and had his brother deliver the confirmation of the Midnight Judges like Marbury? The particulars of this case and possible conflicts of interest have absolutely nothing to do whatsoever with the underlying question.
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May 15, 2022 14:06
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"the fact that marbury v madison established judicial review has nothing to do with when judicial review was established," i scraem as i slam a hammer down on my dick and balls again and again (USER WAS PUT ON PROBATION FOR THIS POST)
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May 15, 2022 14:31
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Proust Malone posted:Obama’s real failure was not hanging garland around the GOP’s neck. The whole point of his nomination was that he was someone McConnell had already said would be acceptable. Obama failed to make the case that the GOP was and still is acting in bad faith and that the consequences of that act would be the repeal of Roe where we are now. Really similar to how he folded on single payer so quickly imho No one who doesn't shell out a ton of money in response to panicked fundraising emails will ever care about what happened to Merrick Garland. The damage was done before there was even any chance to spin it. Obama basically was saying that the party itself agreed that to try and put anyone other than white supremacists on the court was inappropriate, that he had gone too far with Sotomayor and Kagan. Hot buttered weakness served with a smile
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May 15, 2022 15:24
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KOTEX GOD OF BLOOD posted:"the fact that marbury v madison established judicial review has nothing to do with when judicial review was established," i scraem as i slam a hammer down on my dick and balls again and again "As soon the U.S. Constitution was ratified, all other law in the United States, including English common law, just disappeared into thin air, and so the fact that Britain had had an effective court of last resort (in the form of the House of Lords) for nearly four centuries is completely irrelevant. I am very smart."
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May 15, 2022 16:29
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KOTEX GOD OF BLOOD posted:"the fact that marbury v madison established judicial review has nothing to do with when judicial review was established," Literally, unironically true. You are talking about one of the most common, accepted, and uncontroversial concepts in the entire world, where almost every country has some form of judicial review over legislation with only a few weird exceptions. The alternatives are stupid. Rigel fucked around with this message at 17:01 on May 15, 2022 |
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May 15, 2022 16:58
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I'm confused by the Marbury v Madison argument. I thought the idea that it established judicial review is one of those technically wrong things you get taught in grade school and really what it did was set precedent that the constitution was binding law and not just a framework. The constitution gives the judiciary the ability to review the legislative and executive branch but the constitution doesn't explicitly lay itself out as a binding law. I think any other reading of it would be hard to justify, where the court doesn't have the ability to rule things unconstitutional. But I thought it was one of those weird technical things.
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May 15, 2022 17:21
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In fairness the post just above indicates that's not so ridiculous. England at the time and now has a court of final resort but being the House of Lords it was basically a subset of the legislature. Creating a wholly separate branch of government meant having to answer a question of where that kind of power resides. There also wouldn't have been an overriding document for laws, the best the courts can do is identify if there's a conflict between 2 laws parliament has passed (in which case typically the newest law holds) or if a law is in conflict with a treaty obligation. Judicial review isn't unintuitive but I don't think it would have been seen as the natural state of how government functions when the court took that role on.
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May 15, 2022 17:25
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MrNemo posted:... Maybe not, but it's still about as settled as caselaw gets. I think a lot of people are so desperate for One Weird Trick that could make the whole situation go poof that we're falling into motivated reasoning. I've absolutely caught myself doing it lately, just not on this particular tack. Like, the decision is so bog-standard and obvious for constitutional democracies, and so foundational to centuries of governance, that getting rid of it officially or otherwise is a little like the political science version of black gay Hitler alt history speculation. It requires positing a political environment and social dynamics so different from where we actually are that it tells us basically nothing about what the real government can, will, or should do. If they were prepared to unwind and redo basically the entire American legal history of the past two hundred years, they could just remake the constitution and be done with it. It would genuinely be simpler.
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May 15, 2022 18:06
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That Thomas comment about Yoo is something else. Buddy to most of the people who know who he is he's "the torture memo guy".
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May 15, 2022 18:07
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Blue Footed Booby posted:Maybe not, but it's still about as settled as caselaw gets. I think a lot of people are so desperate for One Weird Trick that could make the whole situation go poof that we're falling into motivated reasoning. I've absolutely caught myself doing it lately, just not on this particular tack. Ultimately what matters isn't really who gets the final say on legality, what matters is that whoever it is respects the interests of the people.
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May 15, 2022 18:16
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MrNemo posted:Judicial review isn't unintuitive but I don't think it would have been seen as the natural state of how government functions when the court took that role on. https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf It was, in fact, quite common and accepted at the Founding. There are quite a few instances of pre-Marbury judicial invalidation of statutes in the early Republic, and the concept was basically uncontroversial. The modern conception of judicial review is more expansive than the concept at the Founding in terms of how aggressively it’s applied, but the basic concept - judges could overturn laws that were inconsistent with the Constitution, particularly where the inconsistency encroached on the role of the judiciary - wasn’t anything new. Marbury wasn’t even the first SCOTUS case which involved judicial review - Hayburn’s Case preceded it and, per public statements by 5 of the 6 justices, would have struck down a statute via judicial review if Congress hadn’t mooted the case by repealing the law. You also have the fact that James Wilson - probably the leading legal theorist at the Founding, as well as a SCOTUS justice - argued for judicial review being part of the constitution and that the largest colony at the Founding (Virginia) had a well-established tradition of judicial review.
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May 15, 2022 18:31
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*catches up* Yeah, this is an extremely uphill battle for anybody who wants to say that's the Constitution was designed without judicial review in mind. It's as baked-in to the period understanding of constitutional law held by the founders through their regular practice and administration of their own colonies as Roe's understanding of individual privacy. as frustrating as it probably is to have people Kraimer into this thread, make wild assertions, then moonwalk away, this is a situation where a cursory review of historical intent of the jurisprudence of the founders will absolutely find that they understood judicial review to be a concept that existed as a necessity, and that it sits with the highest court by default bear in mind that you can dramatically simplify the issue by thinking of the alternative: would our founders have seated this power in the executive? to think so is silly, on its face Potato Salad fucked around with this message at 22:05 on May 15, 2022 |
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May 15, 2022 21:53
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I think it's a compelling argument just because, from a textualist position, the power of judicial review is as well supported as the right to privacy that underpinned Roe. If you look at the latter and come to the conclusion that there's no underlying right conveyed by some of the more specific ones called out just because it isn't specifically specified, then why not apply that to judicial review? I mean, yes it totally destroys stare decisis and effectively undoes the governing model of the nation but as Thomas says, if that's your only argument from a legal perspective then clearly you've run out of things to say. It's not a particularly good argument to make but I appreciate that it serves as a reductio ad absurdum for the planned overthrow of Roe. People seriously calling for it as a solution are pretty much uninformed or just bomb throwers.
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May 15, 2022 22:21
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HazCat posted:The point about organ donors does not posit that the fetus is an organ. Yes, exactly. The point I was trying to make was that, even if I'm dead and no longer capable of giving any sort of gently caress about what happens to my corpse, I am empowered to say "no, you absolutely may not use a part of my corpse to save someone else's life. I'm not using it, and I'm dead so I'm by definition incapable of giving a single gently caress, but my final wishes are selfish and gently caress whoever my organs could help." Given that's the case, why should a fetus be entitled to chill out in a womb for 9 months if the pregnant person doesn't want it there? The person who could be saved by my hypothetical organ transplant or blood donation has a right to life too, in a philosophical sense, and yet I'm privileged to say that the integrity of my lifeless corpse supersedes that right if I so choose. Should not live women have greater rights to bodily integrity than my lifeless, earthly remains?
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May 16, 2022 00:15
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American law historically distinguishes between action and inaction, with culpability only attaching to action (the classic example being liability attaching to a Good Samaritan who screws up and kills the person while no legal liability attached to someone who walks by someone drowning). Abortion is, in this categorization, an action, while not donating your organs is seen as an inaction. This distinction is totally bankrupt in my mind (and that of many many others) but it is one that runs through a lot of American law, though it’s broken down over time.
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May 16, 2022 03:11
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Groovelord Neato posted:That Thomas comment about Yoo is something else. Buddy to most of the people who know who he is he's "the torture memo guy". He’s also probably at the top of Thomas’s list of people he’d want to take his spot whenever he finally dies/retires.
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May 16, 2022 04:07
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Kalman posted:American law historically distinguishes between action and inaction, with culpability only attaching to action (the classic example being liability attaching to a Good Samaritan who screws up and kills the person while no legal liability attached to someone who walks by someone drowning). Abortion is, in this categorization, an action, while not donating your organs is seen as an inaction. FYI, you’re REALLY overstating this. Leaving criminal law (where liability OFTEN attaches for failing to do something)aside, you can often be liable for poo poo you failed to do. The key concept is duty, and you can have a duty to act as well as not act. For example, you famously have a duty to warn people you know are on your property or can anticipate being on your property of certain dangerous conditions. That duty can even extend to trespassers as long as you know of or anticipate their presence. You’re thinking of the doctrine that American common law does not generally impose a duty to rescue others from danger. But even that doesn’t go too far, you might have a duty to rescue someone if you caused the danger they’re in, or if something about your relationship with the other person creates a duty.
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May 16, 2022 12:37
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And all of those are special cases where the general lack of obligation to act is overridden. The general rule remains no obligation; even the duty to warn cases emphasize that it arises only in special circumstances (hidden dangers, attractive nuisance) and that ordinary visitors to a property don’t get all that much in the way of special treatment. It’s an underlying current in American law (down to the formulation of the Bill of Rights as a series of negative rights barring the government from taking certain actions, rather than formulating it as positive rights the individual has, though that ties into the natural law debate), not a hard and fast rule that is never violated.
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May 16, 2022 13:05
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Self defense. The mother is not consenting to allow the fetus to use their organs and fluids. It's no different than someone aggressively trying to drain your blood or harvest your organs. She tried to flee, but the fetus pursued. If rule of law actually mattered in America and it wasn't just about loving over women, I don't see how self defense laws would not come into play if fetal personhood were declared.
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May 16, 2022 13:19
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RoboChrist 9000 posted:Self defense. The mother is not consenting to allow the fetus to use their organs and fluids. It's no different than someone aggressively trying to drain your blood or harvest your organs. She tried to flee, but the fetus pursued. You'd also need to deal with the large portion of the male population whose understanding of pregnancy is "sperm goes in, 9 months later, baby comes out!"
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May 16, 2022 13:26
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PT6A posted:You'd also need to deal with the large portion of the male population whose understanding of pregnancy is "sperm goes in, 9 months later, baby comes out!" I'm talking about if fetal personhood laws were passed. If abortion were just criminalized on non-specific grounds, then self-defense wouldn't apply, but assuming a fetal personhood law is what gives us the inevitable nation-wide abortion ban, then yeah, in a logical system self-defense would apply. "The deceased was draining my precious bodily fluids. I warned them them to stop, several times. I fled for several hours, and they pursued me the entire time. After literally days of pursuit I was left with no choice but to use lethal force against the deceased." Or if you're in a state without a duty to flee/castle laws; "I felt threatened."
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May 16, 2022 13:45
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An oldie but just popped up on Slate again Former Judge Resigns From the Supreme Court Bar quote:Dear Chief Justice Roberts: https://slate.com/news-and-politics/2020/03/judge-james-dannenberg-supreme-court-bar-roberts-letter.html
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May 16, 2022 14:58
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Gotta love our SCOTUS saying that someone can now "personally loan" their election campaign any amount of money and can then proceed to use their campaign fund as a slush fund for people to bribe them with post election. Also, this: quote:It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his ap plication. Allegedly, the government did so based on a glaring factual error. In circumstances like that, our law has long permitted individuals to petition a court to co nsider the question and correct any mistake.
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May 16, 2022 15:18
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a fun fact about the supreme court bar: the only real requirements are 1. be an attorney for 3 years and 2. pay $200
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May 16, 2022 15:28
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KOTEX GOD OF BLOOD posted:a fun fact about the supreme court bar: the only real requirements are 1. be an attorney for 3 years and 2. pay $200 That's cool. Probably look up the guy first though. Mr. Nice! posted:Gotta love our SCOTUS saying that someone can now "personally loan" their election campaign any amount of money and can then proceed to use their campaign fund as a slush fund for people to bribe them with post election. So at this point you have to be recorded saying "this is a bribe" while handing cash over to a politician right. Groovelord Neato fucked around with this message at 15:41 on May 16, 2022 |
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May 16, 2022 15:29
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Groovelord Neato posted:So at this point you have to be recorded saying "this is a bribe" while handing cash over to a politician at this point right. I’m confused, what part of the constitution did the original law violate? Seems to me the illegitimate Supreme Court is attempting to do the job that belongs to congress and the president. I don’t think this should be allowed to continue given its naked power grab and average folks shouldn’t hold it in any higher regard than poo poo on shoes.
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May 16, 2022 15:40
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Ogmius815 posted:For example, you famously have a duty to warn people you know are on your property or can anticipate being on your property of certain dangerous conditions. That duty can even extend to trespassers as long as you know of or anticipate their presence. while there are vaginas i have known which i would call Attractive Nuisances i don't know if we'll be able to build a case on them
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May 16, 2022 17:01
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On the Cruz decision today: https://twitter.com/ShaneGoldmacher/status/1526215812679442435
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May 16, 2022 17:13
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roberts: 'how could contributing directly to someones bank account cause corruption? the idea is ludicrous.'
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May 16, 2022 17:59
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At first I was like "okay, doesn't sound to stupid.. basically all the money has to be spend on the campaign anyway", but then I learned that the interest rate for private loans to your own campaign isn't fixed and some people are using stupid rates like 18%. So that's obviously bullshit and needs to be fixed (the interest rate thing).
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May 16, 2022 18:05
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Groovelord Neato posted:So at this point you have to be recorded saying "this is a bribe" while handing cash over to a politician right. No, the phonemes consisting of the sounds "I", "am", "taking", "a", and "bribe" are arbitrary and cannot be assumed to correspond to any unique mental state such as intent to give or accept bribes, therefore they cannot be evidence that anything criminal like bribery is actually occurring, read Wittgenstein.
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May 16, 2022 18:11
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The problem, as outlined in the dissent, is that these 'outstanding loans' are an incredibly easy vector for corruption. You spend $1 million of your own funds on your campaign, except you write it up as a 'loan' instead. After the election, someone wants a favor from you and they simply make donations - money is free speech, bitches - which the campaign promptly 'repays' you for. It's a constitutionally protected pipeline straight into your bank account. This was in fact a problem in the past which is why there were restrictions on the practice, but here comes Ted 'loving' Cruz and his backup band the SCOTUS crew taking a stand for corruption.
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May 16, 2022 18:11
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GaussianCopula posted:At first I was like "okay, doesn't sound to stupid.. basically all the money has to be spend on the campaign anyway", but then I learned that the interest rate for private loans to your own campaign isn't fixed and some people are using stupid rates like 18%. It is bad even without the interest.
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May 16, 2022 18:18
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GaussianCopula posted:At first I was like "okay, doesn't sound to stupid.. basically all the money has to be spend on the campaign anyway", but then I learned that the interest rate for private loans to your own campaign isn't fixed and some people are using stupid rates like 18%. The interest is not the problem. If the interest rate were capped at 0% it would still be blatant corruption. It's a court-approved channel for giving unlimited amounts of money directly to elected officials. There is a word for this but the court won't let us use it
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May 16, 2022 18:22
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TheDeadlyShoe posted:The problem, as outlined in the dissent, is that these 'outstanding loans' are an incredibly easy vector for corruption. You spend $1 million of your own funds on your campaign, except you write it up as a 'loan' instead. After the election, someone wants a favor from you and they simply make donations - money is free speech, bitches - which the campaign promptly 'repays' you for. It's a constitutionally protected pipeline straight into your bank account. And done in such a deliberate way to obfuscate the real purpose by "loaning" his campaign a mere $10k more than the cap.
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May 16, 2022 18:24
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Rigel posted:The particulars of this case and possible conflicts of interest have absolutely nothing to do whatsoever with the underlying question. is SCOTUS 2022: The particulars of the case have nothing to do with the underlying question too long or nah
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May 16, 2022 18:24
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Kalman posted:And all of those are special cases where the general lack of obligation to act is overridden. The general rule remains no obligation; even the duty to warn cases emphasize that it arises only in special circumstances (hidden dangers, attractive nuisance) and that ordinary visitors to a property don’t get all that much in the way of special treatment. It is going too far to say there is any general rule that inaction is not wrongful. You’re talking about ONE SITUATION (you come upon someone you don’t have any specific duty to protect in danger you have nothing to do with) and generalizing. But it can’t really be generalized because it’s not actually a rule. There’s just a TON of situations where inaction is clearly wrongful. Because the actual rule is that you have a duty to act as a reasonably prudent person, which is nebulous as poo poo. Ogmius815 fucked around with this message at 18:30 on May 16, 2022 |
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May 16, 2022 18:28
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Mr. Nice! posted:And done in such a deliberate way to obfuscate the real purpose by "loaning" his campaign a mere $10k more than the cap. Really, it's a preview of how legislation is going to work from now on. If you want to update the law, break the existing law and run it up the chain to SCOTUS, where they will strike down the law if you're a republican or expand the law if you're a democrat.
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