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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.
     
reader50
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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.
     
Chongo
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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.
     
Chongo
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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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Yesterday, 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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Yesterday, 07:41 AM
 
Woops! Hit the wrong button.
     
subego  (op)
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Yesterday, 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.
     
 
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