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The Future of the Supreme Court (Page 2)
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subego  (op)
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Jul 10, 2018, 03:46 PM
 
Originally Posted by The Final Dakar View Post
That was addressed under Point 1.
For which I provided a detailed analysis.
     
subego  (op)
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Jul 10, 2018, 03:49 PM
 
Originally Posted by Chongo View Post
And Plessy? Korematsu wasn’t “repudiated” for 74 years.
IIUC, the court unanimously supported the repudiation.
     
The Final Dakar
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Jul 10, 2018, 03:53 PM
 
Originally Posted by subego View Post
For which I provided a detailed analysis.
I haven't had time to read the long entry but your short hit was easily addressed on a phone.

PS input more stock in his record of rulings vs statements, especially if the statement are from before joining SCOTUS
     
Chongo
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Jul 10, 2018, 03:53 PM
 
Interesting section from the “Korematsu” wiki article.

According to Harvard University's Felix Frankfurter Professor of Law Noah Feldman, "a decision can be wrong at the very moment it was decided—and therefore should not be followed subsequently."[8] Justice Anthony Kennedy applied this approach in Lawrence v. Texas to overturn Bowers v. Hardwick and thereby strike down anti-sodomy laws in 14 states. The implication is that decisions which are wrong when decided should not be followed even before the Court reverses itself, and Korematsu has probably the greatest claim to being wrong when decided of any case which still stood.[8] Legal scholar Richard Primus applied the term "Anti-Canon" to cases which are "universally assailed as wrong, immoral, and unconstitutional"[34] and have become exemplars of faulty legal reasoning.[6] Plessy v. Ferguson is one such example, and Korematsu has joined this group—as Feldman then put it, "Korematsu's uniquely bad legal status means it's not precedent even though it hasn't been overturned."[8]
     
The Final Dakar
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Jul 10, 2018, 03:59 PM
 
chongo, what exactly are you arguing here? That stare decisis shouldn't exist? That it's not real? That precedent, in general should be ignored?

I'm just not understanding these plessy mentions
     
subego  (op)
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Jul 10, 2018, 04:04 PM
 
Originally Posted by The Final Dakar View Post
PS input more stock in his record of rulings vs statements, especially if the statement are from before joining SCOTUS
Is there a particular ruling other than Janus? The link provided with the argument was a list of statements.
     
The Final Dakar
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Jul 10, 2018, 04:09 PM
 
Originally Posted by subego View Post
Is there a particular ruling other than Janus? The link provided with the argument was a list of statements.
Some of it was opinions and actions as a government official. Not on the level of jurisprudence but carries more weight than a statement.

What I'm saying is, no one trying to get confirmed is going to admit if they think Roe is overturnable or if they're against. I don't think you're that naive either.
     
The Final Dakar
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Jul 10, 2018, 04:17 PM
 
The alternative theory I'm hearing is roe dies by a thousand cuts but is never truly overturned. Plausible, though for it to be accurate the pace would have to pick up as it's been that way for years.
     
subego  (op)
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Jul 10, 2018, 05:01 PM
 
Originally Posted by The Final Dakar View Post
I don't think you're that naive either.
Was this intended to be incredibly insulting?
     
Chongo
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Jul 10, 2018, 05:10 PM
 
Originally Posted by The Final Dakar View Post
chongo, what exactly are you arguing here? That stare decisis shouldn't exist? That it's not real? That precedent, in general should be ignored?

I'm just not understanding these plessy mentions
Stare decisis seems to be applied only to the left's pet causes.
     
subego  (op)
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Jul 10, 2018, 05:13 PM
 
Oh, jeez.

If that’s the argument, bring up Lawrence or Obergfell.
     
Chongo
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Jul 10, 2018, 05:26 PM
 
Originally Posted by subego View Post
Oh, jeez.

If that’s the argument, bring up Lawrence or Obergfell.
As I posted, Lawerence was in the Korematsu wiki article.
According to Harvard University's Felix Frankfurter Professor of Law Noah Feldman, "a decision can be wrong at the very moment it was decided—and therefore should not be followed subsequently."[8] Justice Anthony Kennedy applied this approach in Lawrence v. Texas to overturn Bowers v. Hardwick and thereby strike down anti-sodomy laws in 14 states. The implication is that decisions which are wrong when decided should not be followed even before the Court reverses itself, and Korematsu has probably the greatest claim to being wrong when decided of any case which still stood.[8] Legal scholar Richard Primus applied the term "Anti-Canon" to cases which are "universally assailed as wrong, immoral, and unconstitutional"[34] and have become exemplars of faulty legal reasoning.[6] Plessy v. Ferguson is one such example, and Korematsu has joined this group—as Feldman then put it, "Korematsu's uniquely bad legal status means it's not precedent even though it hasn't been overturned."[8]
Was or was not Lawerence cited in Obergfell?
     
The Final Dakar
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Jul 10, 2018, 05:29 PM
 
Originally Posted by subego View Post
Was this intended to be incredibly insulting?
No. Sorry, phrasing. I don't believe you're naive enough to believe confirmation statements are the truth.
     
The Final Dakar
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Jul 10, 2018, 05:30 PM
 
Originally Posted by Chongo View Post
Stare decisis seems to be applied only to the left's pet causes.
Well, I'm not informed enough to agree or disagree, but that's an interesting take since the people who keep getting cited for using the term are conservative jurists.

Why do Gorsuch and Roberts et al. seem to mention it so much?
     
subego  (op)
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Jul 10, 2018, 05:43 PM
 
Originally Posted by Chongo View Post
Was or was not Lawerence cited in Obergfell?
I have no idea, and I’m not sure why it matters.
     
Chongo
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Jul 10, 2018, 05:48 PM
 
Originally Posted by The Final Dakar View Post
Well, I'm not informed enough to agree or disagree, but that's an interesting take since the people who keep getting cited for using the term are conservative jurists.

Why do Gorsuch and Roberts et al. seem to mention it so much?
Actually, Democrat Senators are the one who insist that any Republican nominee bow at the altar of Stare Decisis when it comes to Roe. In order to get their votes, they promise to do so. We will see to what level this nominee gets Borked. I'm sure it will surpass the "high tech lynching" Justice Thomas went through.
     
subego  (op)
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Jul 10, 2018, 06:05 PM
 
Originally Posted by Chongo View Post
I'm sure it will surpass the "high tech lynching" Justice Thomas went through.
Pubic hair is low tech.
     
subego  (op)
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Jul 10, 2018, 06:44 PM
 
Originally Posted by The Final Dakar View Post
No. Sorry, phrasing. I don't believe you're naive enough to believe confirmation statements are the truth.
I guess I’m not, but a link with no qualifications isn’t exactly a cue the evidence will only be apparent to those bringing their analytical A-game.

I’ll reread it.
     
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Jul 10, 2018, 07:45 PM
 
Originally Posted by Chongo View Post
Dred Scott was settled law as well.
Originally Posted by reader50 View Post
Beg to differ. Dred Scott was not accepted, it helped trigger a rebellion. And was ultimately overruled with an amendment. It never got the chance to settle.
Originally Posted by Chongo View Post
And Plessy? Korematsu wasn’t “repudiated” for 74 years.
- I don't know those cases offhand. Reserve right to comment.
Originally Posted by The Final Dakar View Post
Slavery never lost in the SCOTUS.
What I'm saying is Dred Scott was not accepted by the country. Yes, SCOTUS ruled. But half the country (the north) ignored it, and presently overruled it with an amendment. The half of the country that accepted it (the south) rebelled, departing the jurisdiction of SCOTUS. So basically, no one lived with it as "settled law".

I'm not sure why my comment was confusing. Settled law implies the country accepted it. The Civil War and the 13th Amendment settled the law the other way.
     
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Jul 10, 2018, 08:25 PM
 
Plessy was the case the upheld “separate but equal” Korematsu was about FDR’s interment.

You do know that nearly one million people descend on DC each January since a Roe/Doe were handed down?

These are from last January’s march


     
The Final Dakar
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Jul 10, 2018, 09:38 PM
 
Originally Posted by Chongo View Post
Actually, Democrat Senators are the one who insist that any Republican nominee bow at the altar of Stare Decisis when it comes to Roe.
This is hilarious. You're blaming the democrats for the answers conservatives give and mocking the notion of precedent, an uncontroversial principle in law.
     
The Final Dakar
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Jul 10, 2018, 09:39 PM
 
Originally Posted by reader50 View Post
What I'm saying is Dred Scott was not accepted by the country. Yes, SCOTUS ruled. But half the country (the north) ignored it
I don't know if that's true, but it became moot when war broke out three years later.
     
The Final Dakar
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Jul 10, 2018, 09:46 PM
 
Originally Posted by subego View Post
My observations.

1) Thank you for making me take a deep dive into this case. I enjoyed it.

2) Kagan’s dissent is Scalia-tier pissy. I can see why he liked her.

3) She’s also a fantastic writer.

4) Alito writes like a wet sack.

5) This decision shows Roberts is willing to shit on stare decisis when the State is compelling behavior.

6) Roe is a case where the State is allowing behavior.

7) It’s possible Roberts is more bothered by the State compelling behavior than allowing it, even if he takes an equally dim view of jurisprudence behind both.

8) I know I’m more bothered by it.

9) Kagan makes a strong argument the jurisprudence behind Abood is sound.

10) I’m still more bothered it

11) I’m pretty much on board with Alito’s wet sack opinion. The State forcing employees to give kickbacks to unions is so at odds with the First Amendment it’s only constitutional if the State can’t function without it.

12) It can.
The state can function without what? Unions? Because the union is crippled by a free rider problem.


5) This decision shows Roberts is willing to shit on stare decisis when the State is compelling behavior.

6) Roe is a case where the State is allowing behavior.
This is a good distinction to make. Unfortunately it doesn't prevent Roberts from flexing in other areas, it just highlights an area where Roberts can be expected to deviate from precedent.

And there's still Points 2-4 after that.
     
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Jul 10, 2018, 09:59 PM
 
Originally Posted by The Final Dakar View Post
This is hilarious. You're blaming the democrats for the answers conservatives give and mocking the notion of precedent, an uncontroversial principle in law.
https://www.gettyimages.com/detail/v...tage/996442184
Senator Schumer emphasizes stare decisis view of unnamed Supreme Court nominee
Senate Minority Leader Chuck Schumer of New York says hours before President Donald Trump announced a nominee to the Supreme Court that will having a litmus test for nominees and choosing from a preapproved list, a judge must prove more than their moderation over stare decisis and respect for the president, a meaningless bar with so many rights and liberties at stake.
     
The Final Dakar
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Jul 10, 2018, 10:02 PM
 
Use your words, give an argument against what I said.
     
The Final Dakar
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Jul 10, 2018, 10:07 PM
 
Brett Kavanaugh to @POTUS: "I have witnessed firsthand your appreciation for the vital role of the American judiciary."
BTW, not a good sign when the nominee is willing to utter such a bald faced lie with the nation watching. No dignity, questionable principles.
     
subego  (op)
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Jul 10, 2018, 10:47 PM
 
Originally Posted by The Final Dakar View Post
The state can function without what? Unions? Because the union is crippled by a free rider problem.
Except in 28 states where free riding is allowed, and the Federal Government, where free riding is allowed.


Originally Posted by The Final Dakar View Post
And there's still Points 2-4 after that.
Hence the discussion we’ve also begun on point 3.

Why am I getting treated like shit for participating?


To clarify, so far I’ve...

1) Had a post dismissed because it didn’t cover point one, even though I extensively covered point one.

2) Got my shit jumped for not realizing I was meant to ignore half the evidence given in a citation.

3) Had a post dismissed because it didn’t cover five separate arguments at once.

I’m flexible, but this is bullshit. Meet me 1/10th of the way.
( Last edited by subego; Jul 11, 2018 at 04:22 AM. )
     
The Final Dakar
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Jul 11, 2018, 10:24 PM
 
The machine is at it.


Obviously none of this matters if all you care about is abortion, but, yeah, this guy sucks.

(He also thinks ISPs have editorial discretion to block content they don't like)
     
The Final Dakar
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Jul 16, 2018, 12:20 AM
 
Originally Posted by subego View Post
Except in 28 states where free riding is allowed, and the Federal Government, where free riding is allowed.
I didn't say it didn't exist I was saying it cripples unions. Those right to work states just coincidentally make less wages than states where unions are stronger.
     
subego  (op)
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Jul 16, 2018, 07:41 AM
 
Woops! Hit the wrong button.
     
subego  (op)
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Jul 16, 2018, 09:20 AM
 
Originally Posted by The Final Dakar View Post
I was saying it cripples unions.
Which is what I was responding to. I disagree. The unions in these 28 states are not crippled. Free riders have not crippled them.

I’ll admit, I didn’t read Alito’s wet sack support for this claim, and I don’t remember if Kagan has a good rebuttal.

I’ll likewise admit I didn’t look at the numbers before I made that post, it was more a hunch on what they’d be if I did look.

A state’s worth of legitimately aggrieved unions can **** some shit up. Since that didn’t happen 28 times over, along with the rest of the game theory not adding up in my head, I felt it likely the numbers wouldn’t justify cracking the lid on the first amendment.

The analysis most hostile to my claim cited on the “right-to-work law” Wiki page found right-to-work incurs an average of a 4.8% penalty in pensions, a 3.2% penalty in wages, and a 2.6% penalty in health benefits.

Of course, I’m more than willing to entertain a different analysis of the data, but this set of numbers is safely below what I’d demand for making an exception to a constitutional amendment, let alone the numbers I need to fully pack the semantic baggage on a word like crippled.
     
The Final Dakar
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Jul 17, 2018, 07:42 PM
 
Originally Posted by subego View Post
Which is what I was responding to. I disagree. The unions in these 28 states are not crippled. Free riders have not crippled them.
Ok, so if I were being precise I'd say they have weakened them and set them on a course for declining membership over time. I'd also say that is the goal of these suits rather than good-faith objections.

Originally Posted by subego View Post
I’ll admit, I didn’t read Alito’s wet sack support for this claim, and I don’t remember if Kagan has a good rebuttal.
I thought you alluded to it earlier and agreed with the premise. Basically if the union lobbies politically with any $ it suddenly becomes coerced speech.

He's also arguing that by negotiating wages increases the costs for the government (impacting the citizens), so the union is political just by acting.

What I read of Kagan was less a rebuttal than criticism. That they ignored stare decisis, and did so because they don't like unions rather than for legal reasons. Sort of searching for reason after settling on the answer.


Originally Posted by subego View Post
A state’s worth of legitimately aggrieved unions can **** some shit up. Since that didn’t happen 28 times over, along with the rest of the game theory not adding up in my head, I felt it likely the numbers wouldn’t justify cracking the lid on the first amendment.
I mean, I don't really but the free speech argument. But if you feel like laying it out, I'm curious.

Originally Posted by subego View Post
The analysis most hostile to my claim cited on the “right-to-work law” Wiki page found right-to-work incurs an average of a 4.8% penalty in pensions, a 3.2% penalty in wages, and a 2.6% penalty in health benefits.

Of course, I’m more than willing to entertain a different analysis of the data, but this set of numbers is safely below what I’d demand for making an exception to a constitutional amendment, let alone the numbers I need to fully pack the semantic baggage on a word like crippled.
I'll admit, whatever analysis I looked when I made the previous posts, I can't find again.
     
subego  (op)
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Jul 18, 2018, 05:31 PM
 
I read Alito’s thesis, part of which is “unions are not substantively damaged by right-to-work”, but he’s so boring I couldn’t get to his evidentiary support of this claim.

Kagan disagrees, and argues unions are substantively damaged. I read her entire dissent, but I (perhaps incorrectly) don’t recall her giving any evidentiary argument to back up her position. She backs it up with reasoning, not objective evidence.

The evidentiary argument I have are those numbers. With acknowledgement those may not be accurate, were they proven correct, are we in agreement they do not show substantive damage?

Why it’s a First Amendment violation seems straightforward to me. The government cannot compel people to personally fund political speech unless the circumstances are extraordinary. A 5% hit isn’t extraordinary.
     
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Jul 18, 2018, 05:49 PM
 
Here's my 2 cents ....

1. Ban all political contributions by any entity or individual that isn't eligible to actually cast a ballot in a given election. This would effectively eliminate unions, corporations, and individuals from influencing any election they don't have a direct stake in with money.

2. Mandate a $1000 maximum political contribution for any given election.

3. Watch the "Right To Work" issue suddenly take care of itself without controversy or consternation.



OAW
     
subego  (op)
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Jul 18, 2018, 06:02 PM
 
I’m all for financing reform, but I’m not seeing the actual problem with right-to-work.

Yes, unions are more effective when they get to legally extort money, but their survival instinct appears to have carried them through the drought.
     
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Jul 19, 2018, 05:50 PM
 
^^^

The issue with "Right to Work" is the "free rider" problem. That's a legitimate concern. That being said, it's essentially a red herring issue. Just like the "free speech" argument on the other side is a legitimate concern but is also a red herring issue. The bottom line here is that the real issue is funding for political activity. Neither corporations or unions can make "hard money" or direct contributions to political candidates or political parties. The battle is being fought over "soft money" contributions to PAC's. The right claims it's about "free speech" but in reality they are attempting to kneecap the ability of unions to compete with corporations financially in the "soft money" game. Their calculus is Weaker Unions = Lower Wages = More Profits. The left claims it's about "free riders" but in reality the are attempting to preserve their ability to compete with corporations financially in the "soft money" game. And their calculus is Stronger Unions = Higher Wages = Less Profits. Asking unions to accept "Right to Work" legislation while still allowing organizations to make unlimited independent political expenditures in this "Citizens United" era is akin to asking them to unilaterally disarm in a gun battle with corporations. So the point of my post is that the solution to this is to change the game entirely. And then the red herring issues will sort themselves out naturally without all the sound and fury.

OAW
     
subego  (op)
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Jul 19, 2018, 08:15 PM
 
Let’s assume this is all valid.

The case has nothing to do with it. The decision only pertains to what the government can do to its employees. That’s the only basis upon which the First Amendment can be invoked.

Private employers aren’t bound by the First Amendment. The conservatives aren’t going to undo that.
     
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Jul 20, 2018, 10:03 AM
 
Originally Posted by subego View Post
Private employers aren’t bound by the First Amendment. The conservatives aren’t going to undo that.
The NFL is a private employer...
     
subego  (op)
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Jul 20, 2018, 10:26 AM
 
You lost me. Can you expand?
     
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Jul 20, 2018, 10:54 AM
 
Sorry, bad comment.
     
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Jul 20, 2018, 11:22 AM
 
Private employers most certainly infringe on people's speech all the time. You have free speech, but still can be fired for it.
     
subego  (op)
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Jul 20, 2018, 03:58 PM
 
And in states where security agreements are legal, private employers may infringe on the free speech of their employees.

For example, they can force them into a security agreement.
     
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Jul 20, 2018, 04:51 PM
 
Originally Posted by subego View Post
Let’s assume this is all valid.

The case has nothing to do with it. The decision only pertains to what the government can do to its employees. That’s the only basis upon which the First Amendment can be invoked.

Private employers aren’t bound by the First Amendment. The conservatives aren’t going to undo that.
Which case are you referencing? "Right To Work" or "Citizens United"?

OAW
     
subego  (op)
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Jul 20, 2018, 04:55 PM
 
Janus v. AFSCME.

https://en.m.wikipedia.org/wiki/Janus_v._AFSCME

The meta question is the grounds upon which the majority, Roberts specifically, ignored stare decisis.
     
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Jul 20, 2018, 05:24 PM
 
Originally Posted by subego View Post
Let’s assume this is all valid.

The case has nothing to do with it. The decision only pertains to what the government can do to its employees. That’s the only basis upon which the First Amendment can be invoked.

Private employers aren’t bound by the First Amendment. The conservatives aren’t going to undo that.
Originally Posted by subego
Janus v. AFSCME.

https://en.m.wikipedia.org/wiki/Janus_v._AFSCME

The meta question is the grounds upon which the majority, Roberts specifically, ignored stare decisis.
The conservatives most definitely are doing that. The case you cite is indeed applicable only to public sector unions. But that's not where the game is being played now. Republican controlled state legislatures have been passing "right to work" legislation that is applicable across the board ... not just the public sector. Take a look at this vote on Proposition A going down in my home state of Missouri on Aug. 7. The GOP controlled Missouri legislature has already passed a "right to work" law in Senate Bill No. 19. Proposition A is the opportunity for Missouri voters to either uphold or reject Senate Bill No. 19.

Ballot Summary

The fair ballot language is as follows:[25]

A “yes” vote will adopt Senate Bill 19 ("right-to-work"), passed by the general assembly in 2017. If adopted, Senate Bill 19 will amend Missouri law to prohibit, as a condition of employment, forced membership in a labor organization (union) or forced payments of dues or fees, in full or pro-rata ("fair-share"), to a union. Senate Bill 19 will also make any activity which violates employees' rights provided by the bill illegal and ineffective and allow legal remedies for anyone injured as a result of another person violating or threatening to violate those employees' rights. Senate Bill 19 will not apply to union agreements entered into before the effective date of Senate Bill 19, unless those agreements are amended or renewed after the effective date of Senate Bill 19.

A “no” vote will reject Senate Bill 19 ("right-to-work"), and will result in Senate Bill 19 not becoming Missouri law.

If passed, this measure will have no impact on taxes.[26]

Full Text

The full text of Senate Bill 19 is as follows:

Senate Bill No. 19

290.590. 1. As used in this section, the following terms shall mean:

(1) "Employer", any individual, organization, partnership, state agency, political subdivision, corporation, or other legal entity which employs or has employed one or more individuals performing services for the entity within this state; and

(2) "Labor organization", any organization of any kind or agency, or employee representation committee or union which exists for the purpose in whole or in part of dealing with employers concerning wages, rates of pay, hours of work, other conditions of employment, or other forms of compensation.

2. No person shall be required as a condition or continuation of employment to:

(1) Become, remain, or refrain from becoming a member of a labor organization;

(2) Pay any dues, fees, assessments, or other similar charges, however denominated, of any kind or amount to a labor organization; or

(3) In lieu of the payments listed under subdivision (2) of this subsection, pay to any charity or other third party any amount equivalent to, or on a pro rata basis, any dues, fees, assessments, or other charges required of members of a labor organization.

3. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed under this section is unlawful, null and void, and of no legal effect.

4. Any person who violates or directs another to violate any provision of this section shall be guilty of a class C misdemeanor.

5. (1) Any person injured as a result of any violation or threatened violation of this section shall be entitled to injunctive relief against any and all violators or persons threatening violations.

(2) Any person injured as a result of any violation or threatened violation of this section may recover any and all damages of any character resulting from such violation or threatened violation including costs and reasonable attorney fees. Such remedies shall be independent of and in addition to the other penalties and remedies prescribed under this section.

6. The prosecuting attorney or circuit attorney with jurisdiction over the location where a violation or threatened violation of this section occurs or the attorney general of this state shall investigate complaints of violation or threatened violation of this section, prosecute any person violating this section, and use all means at their command to ensure the effective enforcement of this section.

7. This section shall not apply:

(1) To employers and employees covered by the federal Railway Labor Act;

(2) To federal employers and employees;

(3) To employers and employees on exclusive federal enclaves;

(4) Where this section conflicts with or is preempted by federal law; or


(5) To any agreement between an employer and a labor organization entered into before the effective date of this section but shall apply to any such agreement upon its renewal, extension, amendment, or modification in any respect after the effective date of this section.
Missouri Proposition A, Right to Work Referendum (August 2018) | Ballotpedia.com

As you can see by the sections highlighted ... this legislation is not just applicable to public sector unions and on top of that explicitly doesn't apply to federal employees.

OAW
     
subego  (op)
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Jul 21, 2018, 12:58 AM
 
That’s all constitutional, right?
     
OAW
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Jul 21, 2018, 09:59 AM
 
^^^

“Constitutional” is whatever the SCOTUS says it is. Their power lies in their ability to make that determination. So you are correct that the case you cited involved public sector unions only. But there’s an old saying ... “If you give some people a rope then they want to be a cowboy!” So given the opening the conservative majority SCOTUS provided by defying precedent in the case you cited ... GOP controlled state governments are going far beyond that and passing “Right To Work” legislation across the board. IOW in the private sector too. The calculus being that in the current political environment it’s better to ask for forgiveness than ask for permission. A lower court could uphold the law when it inevitably gets challenged. And if not and it makes its way to the SCOTUS then there’s a good chance the current (and likely even more solid in the near future) conservative majority will uphold the legislation thereby deeming it to be “constitutional”.
     
subego  (op)
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Jul 21, 2018, 07:31 PM
 
States are passing right-to-work legislation in the private sector because that’s been legal since 1947.

They need not ask for either forgiveness or permission.
     
subego  (op)
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Jul 22, 2018, 06:35 PM
 
Originally Posted by The Final Dakar View Post
Point 4. Roberts won't flip it because he cares about the image of the court
Me: I have two takes here - A. You avoid rocking the boat on most issues to give you cover for when cases come along and you feel you have to (i.e., you build up good will in public opinion so you can make unpopular rulings in cases that are important to you); B. I don't think Roberts is so transactional that he'd overlook sincerely held legal beliefs to maintain appearances (i.e., while he might bend his beliefs to facilitate some good feels, a case of this magnitude would require him to break them).
It doesn’t necessarily work this way. My sincerely held legal belief is Roe v. Wade was a shit decision.

In [current year] I don’t flip it because the shit reasoning hasn’t metastasized, I dislike revoking liberty, and concerns over stare decisis (ones I don’t have with Janus).

I don’t know if Roberts feels the same, but the positions can coexist inside the same skull.
     
subego  (op)
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Jul 22, 2018, 08:11 PM
 
Originally Posted by The Final Dakar View Post
So, let me see if I can even remember all my arguments. I'm going to throw them all in here because I'm slowly forgetting stuff over the course of the week.

Point 1. Roberts believes in stare decisis
Me: Look at his NLRB ruling which just overturned 40 years of settled law. Extra credit: He overturned Korematsu with two sentences of justification.

Point 2. Roberts is less hardcore than Thomas and Alito
Me: That only eliminates the possibility of a nationwide ban, i.e., the worst possible outcome.

Point 3. Roberts doesn't want to flip it
Me: That's speculation of the highest order. Based on his work history its appears incredibly flawed.

Point 4. Roberts won't flip it because he cares about the image of the court
Me: I have two takes here - A. You avoid rocking the boat on most issues to give you cover for when cases come along and you feel you have to (i.e., you build up good will in public opinion so you can make unpopular rulings in cases that are important to you); B. I don't think Roberts is so transactional that he'd overlook sincerely held legal beliefs to maintain appearances (i.e., while he might bend his beliefs to facilitate some good feels, a case of this magnitude would require him to break them).

Point 5. Roberts will look for a compromise solution
Me: If you're pro-life, punting to the states is the compromise solution. It gives the supreme court the ability to turn away cases going forward on the basis that it's a state matter. How's that for some new cover?
Since this went a bit all over the place, I’ll consolidate a bit and address the remaining points.

1) This spun-off into whether it was a good decision, but in terms of Roberts’ respect for stare decisis, we have an incomplete profile.

2) I didn’t read this one closely enough at first and now I realize I’m confused. The only way for a nationwide ban to occur is the federal government passing a law to that effect, no?

3) Going back over this, his work history is just that. It was his job to present the positions of the administration he worked for. Even if those are his opinions, it’s an adjunct to number 4. I think Roe was wrongly decided and don’t find any constitutional support for abortion rights, but that’s an entirely separate question from what gets done about it decades later.

4) Which is the post above, and I would sum-up as a vote can require more than sincerely held legal opinion.

This leaves 5.

Punting it back to the states, i.e. flipping Roe, is the most extreme option he has. I don’t think he’s going to take the most extreme option. Again, I don’t think a nationwide ban even enters the discussion without congress.

My prediction is he’ll punt some of it back to the states, but I’d be surprised (and disappointed in him) if he punted all of it.

Not that we need more things to consider, but there’s also his opinion on whether Planned Parenthood and others run some shenanigans over the Hyde Amendment. No idea where he falls on that.
     
 
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