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Discendo Vox posted:That would be a bad argument (see: all punishment systems developed during the relevant textual period starting from 1689 and going forward, all the SCOTUS cases saying, "um, what? no"). You know that's the argument that the dissent makes, right? That the death penalty itself is cruel and unusual. Your claim that the death penalty is obviously not unconstitutional, because we allowed the death penalty when we adopted the Bill of Rights, is just wrong. First, the relevant period is now, not the time the amendments were adopted. As the dissent notes, a “claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia, 536 U. S. 304, 311 (2002). Whether the Court would have found the practice constitutional in 1689 is not relevant. The dissent then goes on to note that the Court has declared the death penalty unconstitutional before, only to then reauthorize it in 1976. The reauthorization was based on the idea that the states could repair the constitutional infirmities identified in 1973. Justice Breyer then says that we've had 40 years to find out whether the death penalty is constitutional, and the conclusion he reaches is that it is not. And he is not talking about specific methods, he says the death penalty is likely unconstitutional "in and of itself." Justice Breyer posted:Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. You can think Justice Breyer is making a "bad argument" but you should probably actually engage his argument if you're going to do that.
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Jun 29, 2015 20:15
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Aurubin posted:Has Thomas ever authored an opinion for the majority? You might be kind of joking, but yes, he writes them all the time. I haven't seen final numbers for this term, but last term he wrote 7 majority opinions, all of the other justices wrote either 7 or 8. Keep in mind, the court has a lot of unanimous decisions (48 last term), so there's plenty to go around, and the court tries to equally balance opinion writing workload. You can get all of this information at http://www.scotusblog.com/reference/stat-pack/.
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Jun 29, 2015 20:19
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Discendo Vox posted:In both cases, because human lives don't have infinite moral value. Epistemic uncertainty is not a sufficient justification for inaction- if it were then it could not be used to justify any ethical system. Blackstone also discusses circumstances and standards justifying the death penalty. The choice is not between action and inaction, it is between execution and life imprisonment. Assuming that we should consider this from a utilitarian perspective (which I don't actually grant) execution is only justifiable if the benefit of executing an individual as compared to imprisoning them for life outweighs the increased harm associated with executing an innocent person as compared to imprisoning them for a period until they are exonerated (which may be life in some cases). I would argue that the harm inherent in executing an innocent individual, as compared to allowing them to live, is extremely high (even if it cannot be precisely defined), and therefore the death penalty needs to provide extreme benefits as compared to life imprisonment. I have not seen evidence that it provides those benefits, therefore, based solely on the uncertainty inherent in our justice system, execution should not be preferred to life imprisonment. If you have evidence of some exceptional benefit, I would like to see it. E: GlyphGryph posted:Anti-death penalty arguments are garbage because they assume a life of imprisonment is somehow kinder or more of a mercy than death. But then pro-death penalty arguments are garbage as well, unless you are arguing that we should be reserving life imprisonment for the worst of the worst, and executing the merely terrible as a measure of compassion.
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Jun 29, 2015 23:05
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RPZip posted:It wasn't actually a Supreme Court case that Lincoln ignored, although that's a pretty common misconception. Ex parte Merryman was actually a Federal circuit court ruling, but the circuit court was headed by Chief Justice Taney. Justices also being part of the normal Federal Court structure was apparently not that uncommon back in the day. The case never made it to the actual Supreme Court. Not just not uncommon, Justices were required by law to "ride circuit" until the requirement was eliminated by the Judiciary Act of 1891.
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Jul 30, 2015 20:11
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KOTEX GOD OF BLOOD posted:http://www.nytimes.com/2016/01/07/us/top-alabama-judge-orders-halt-to-same-sex-marriage-licenses.html This is just weird, because I'm not sure what ability the Chief Justice of the Alabama Supreme Court actually has to order Probate Judges to do anything. Yes, he technically oversees the entire court system, but Probate Judges are elected officials, and they don't serve at the pleasure of the Chief Justice, they serve six year terms unless impeached. So, if they disobey Roy Moore's order, what's the consequence. He can't do anything about it. I suppose Roy Moore could file a complaint with the state ethics commission if probate judges disobey him, but that seems unlikely, given that last time Roy Moore tried to stand up to a federal court order the state ethics commission removed him from office.
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Jan 8, 2016 01:39
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eviltastic posted:Upon looking this up, I have learned that Alabama probate judges do not need to be lawyers. Ok then. In my state, the position that performs most of the duties of a Probate Judge is a Court Commissioner, and there is no requirement that a Commissioner be licensed to practice law, only that they be a citizen of the United States. They also aren't elected though, they are appointed by the judges of the county in which they sit, and almost every county has a local rule that requires Court Commissioners be licensed to practice law. Mr. Nice! posted:Aren't those the types that say "appeal me I don't care I'm ordering it this way regardless?" I had a Court Commissioner straight up say, on the record, "I don't care what the rules say, I'm not considering this motion. Find a judge." Fortunately it was a small county and opposing counsel and I were able to find a judge that didn't have anything else going on. E: My state also used to allow unlicensed municipal judges and district court judges to serve in small towns and districts, provided you could pass an exam. That was abolished in 2003, but anybody who took the exam before 2003 grandfathered in. I don't know if there are still any unlicensed judges serving though. Not My Leg fucked around with this message at 21:02 on Jan 8, 2016 |
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Jan 8, 2016 20:54
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Mr Jaunts posted:So according to ScotusBlog, apparently McDonnell's cert was limited to this question: I don't think it would be a commerce clause ruling. Rather it would probably be unconstitutionally vague. Basically, the argument is that the court should interpret this law to only criminalize final government action, but, if the court doesn't interpret it that way, then it should decide that it's unconstitutionally vague because it is too difficult for someone, in advance, to determine whether their planned conduct would be criminal under the law. E: While I'm not necessarily agreeing with the argument in this particular case (I don't know enough about it) vagueness is an important concept in criminal law. Criminal laws should be drafted so that a person (or a person's attorney) can look at the law and say that X either is or is not criminal. Not My Leg fucked around with this message at 00:09 on Jan 16, 2016 |
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Jan 16, 2016 00:00
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TheAngryDrunk posted:Apparently 125 days is the longest ever. Obama has 342 days left. I believe that's the longest between submission of the nomination to the Senate and confirmation. John Tyler has the longest ever, at more than a year, and it was expressly because the Senate wanted to delay confirmation until a new President was elected. Smith Thompson died in December 1843 and his replacement was confirmed in February 1845, one month before Tyler's term ended. Henry Baldwin died in April 1944 and the Senate successfully blocked all of Tyler's nominations. He was replaced in 1946 by a Polk nominee (who also had two other failed nominees for the seat, one of whom refused appointment and the other of whom was defeated). TheAngryDrunk posted:I think thats the longest vacancy. We were discussing longest from nomination to confirmation. I think it's still fair, because Tyler made something like 9 nominations during that time and they kept getting shot down or not receiving a vote. It's not as if Tyler sat on his hands doing nothing.
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Feb 14, 2016 01:15
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Josh Lyman posted:What landmark cases wouldn't have happened if everyone on the Court shared Scalia's originalism and textualism. Miranda E: You're asking what cases wouldn't have happened if the Court was all Scalia's, right? E2: I know Miranda was before Scalia's time, but he would have overturned it in Dickerson v. United States. Not My Leg fucked around with this message at 01:23 on Feb 14, 2016 |
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Feb 14, 2016 01:18
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Mitt Romney posted:I'm with Kalman, I hope Obama nominates Jane Kelly. Seems like she would have a much better chance politically. You lost, you don't get a say.
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Feb 14, 2016 01:33
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I don't think the Senate will politically be able to refuse to act on a nominee for a full year. If they want to prevent Obama from replacing Scalia they'll likely have to actually vote on and defeat one or more nominees. Actually defeating his nominees can be spun as the Senate doing it's job and standing as the will of the people against Obama's attempt to transform America. Sitting and doing nothing is blatantly political and likely won't go over well. I also think the political calculation is interesting for Republicans on whether they should want Obama or the next president nominating a replacement. There are roughly nine competitive Senate seats next election, and 7 of them are Republican. An Obama appointee confirmed by this Senate is probably better (from the GOP perspective) than a Clinton/Sanders appointee confirmed by the next Senate. On the other hand, a Cruz/Rubio/Bush/Kasich nominee confirmed by the next Senate would obviously be better for the GOP even if the Senate flips. The wildcard is Trump, because I don't think Republicans could have any confidence in the ideological consistency of a Trump nominee.
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Feb 14, 2016 01:46
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Mors Rattus posted:A tie would be able to be retried once the seat was filled, wouldn't it? Could be, but probably wouldn't be. It's late enough in the term that it's more likely cases would just be decided 4-4. Not necessarily required, as they could always reset for next term, but it's most likely. Here's the SCOTUSBlog rundown of current close cases. The most interesting one is probably affirmative action. Kagan recused herself from that case, meaning the conservative wing could still have a 4-3 majority.
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Feb 14, 2016 02:18
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