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The Future of the Supreme Court
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subego
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Jun 28, 2018, 04:32 AM
 
I posit this new paradigm for Supreme Court appointments the GOP has created is superior to what came before.

The politics of who a Presidential candidate would appoint to the Court used to be the most important consideration when deciding who to vote for. This was a reflection of the enormous amount of power the old paradigm entrusted to the Executive.

The new paradigm is the President’s input is taken at the pleasure of the Senate.

Who a candidate will appoint to the Court no longer competes with other considerations for a voter’s attention.

Power unnecessarily concentrated in a single individual has been decentralized.

These are both good things.

It sucks to be on the wrong side of it, which I am because I prefer a balanced court, but that happened under the old paradigm, too.
     
Chongo
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Jun 28, 2018, 07:22 AM
 
Whoever the nominee is, they will get "Borked" to a new level, especially if the are Catholic.

     
The Final Dakar
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Jun 28, 2018, 10:34 AM
 
Originally Posted by subego View Post
I posit this new paradigm for Supreme Court appointments the GOP has created is superior to what came before.
Rather than make assumptions, I'll just ask, what are you basing this concept of a new paradigm existing on?
     
andi*pandi
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Jun 28, 2018, 10:51 AM
 
Well, all the pundits last night were saying the Dems better demand that no interview or nomination can take place until after the next election, since that is how Mitch stole the last spot. So I'm assuming that's the new paradigm.

That Mitch got away with postponing nominations for a year is complete BS.
     
subego  (op)
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Jun 28, 2018, 04:53 PM
 
Sorry I wasn’t clear.

The new paradigm is the Senate blocks any nominations they’re not 100% happy with.

If the Republicans are in charge of the senate, only Scalia-types are getting in.

If the Democrats run the Senate, then we get RBG-types.

If the President doesn’t play ball, the spot remains vacant.


The Republicans have done their half, it would be idiotic for the Democrats not to follow suit.
     
subego  (op)
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Jun 28, 2018, 06:36 PM
 
To put it another way, if the Democrats take the Senate in November, and Clarence Thomas decides to retire, either Trump nominates a flaming liberal to replace him, or it won’t even leave committee.

Just like the GOP did with Garland.
     
reader50
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Jun 28, 2018, 06:57 PM
 
If the Dems win Congress in the mid-terms, and another vacancy opens up, could they not confirm Garland? When checking the Constitution, I'm not seeing an expiration date on Presidential appointments to the SCOTUS. It looks like Congress can consider anyone (living) who has been previously nominated. Especially with Garland, as his nomination is still pending any action by the Senate.
     
The Final Dakar
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Jun 28, 2018, 06:58 PM
 
Originally Posted by subego View Post
Sorry I wasn’t clear.

The new paradigm is the Senate blocks any nominations they’re not 100% happy with.

If the Republicans are in charge of the senate, only Scalia-types are getting in.

If the Democrats run the Senate, then we get RBG-types.

If the President doesn’t play ball, the spot remains vacant.


The Republicans have done their half, it would be idiotic for the Democrats not to follow suit.
Ok, I wasn't getting you right. I think I agree. I have some quibbles but I don't think they'd add to the conversation.
( Last edited by The Final Dakar; Jun 28, 2018 at 07:43 PM. )
     
subego  (op)
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Jun 28, 2018, 07:04 PM
 
Originally Posted by reader50 View Post
If the Dems win Congress in the mid-terms, and another vacancy opens up, could they not confirm Garland? When checking the Constitution, I'm not seeing an expiration date on Presidential appointments to the SCOTUS. It looks like Congress can consider anyone (living) who has been previously nominated. Especially with Garland, as his nomination is still pending any action by the Senate.
Or, at some point in the future, the GOP can Harriet Miers our asses.
     
subego  (op)
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Jun 28, 2018, 07:07 PM
 
Originally Posted by The Final Dakar View Post
I think I agree.
I don’t follow.
     
The Final Dakar
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Jun 28, 2018, 07:13 PM
 
Originally Posted by subego View Post
I don’t follow.
I think I agree with your analysis.
     
subego  (op)
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Jun 28, 2018, 07:16 PM
 
Originally Posted by The Final Dakar View Post
I think I agree with your analysis.
Still not getting it.

This may just be too alien of a concept for me.
     
The Final Dakar
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Jun 28, 2018, 07:43 PM
 
Originally Posted by subego View Post
Still not getting it.

This may just be too alien of a concept for me.
You're dogshit and your mother never loved you.
     
subego  (op)
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Jun 28, 2018, 07:55 PM
 
Originally Posted by The Final Dakar View Post
You're dogshit and your mother never loved you.
I think I agree with your analysis.
     
Laminar
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Jun 29, 2018, 12:18 PM
 
     
The Final Dakar
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Jul 1, 2018, 06:54 PM
 
Susan Collins might be the worst liar in the Senate ATM

Edit: I was being a no-context asshole

Susan Collins today: "I actually don't” think Justice Gorsuch would overrule Roe. “someone who devotes that much time to writing a book on precedent, I think, understands how important a principle that is in our judicial system."
Gorsuch Tuesday: vote to overrule 41-year old case
( Last edited by The Final Dakar; Jul 1, 2018 at 07:54 PM. )
     
The Final Dakar
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Jul 2, 2018, 11:11 PM
 
Collins laying down more groundwork for her vote
Susan Collins told The Daily that the public is split "51-49" on overturning Roe v. Wade. In fact, it's 67% against overturning to 33% in favor of overturning, according to a brand new Kaiser Family Foundation poll. https://www.kff.org/health-reform/pr...rn-roe-v-wade/ … (cc: @nytimes @mikiebarb)
     
Thorzdad
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Jul 3, 2018, 08:04 AM
 
The Republicans in-general have really begun banging the "Roe won't be overturned because settled law! No, really! Trust us!" drum. Even Lindsey-effing-Graham has said that Roe is settled law and wouldn't be overturned. And Trump has been his usual equivocal doofus as to whether or not he would even ask his nominee about Roe.

Given all that, I'd say it's a sure bet that Roe is going to be gutted asap.
     
subego  (op)
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Jul 3, 2018, 08:11 AM
 
I could be wrong, but I don’t think Roberts wants to flip it.
     
The Final Dakar
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Jul 3, 2018, 08:21 AM
 
Originally Posted by subego View Post
I could be wrong, but I don’t think Roberts wants to flip it.
Why wouldn't he?
     
Thorzdad
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Jul 3, 2018, 10:43 AM
 
Originally Posted by subego View Post
I could be wrong, but I don’t think Roberts wants to flip it.
The court-watchers I've heard seem to feel the same thing. It seems he's become a little more concerned about his legacy as Chief Justice, and taking away previously-awarded rights doesn't reflect well on that.
     
subego  (op)
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Jul 3, 2018, 02:02 PM
 
Yup.

Legacy, and he’s sensitive to optics.

He’s also less hardcore than Thomas and Alito.
     
subego  (op)
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Jul 3, 2018, 03:19 PM
 
The “funny” thing is, the way I read the board, much easier to flip gay marriage.
     
Thorzdad
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Jul 3, 2018, 05:35 PM
 
Or, the evangelicals can push for a two-fer and go for both.
     
subego  (op)
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Jul 3, 2018, 05:44 PM
 
I’m sure they will, but I’m not sure the respective mindshare the two issues are getting is proportionate to their respective risk.
     
The Final Dakar
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Jul 4, 2018, 03:01 PM
 
Procedural question: I have, like, four different perspectives on how this view of Roberts is misguided. What is the best way to present them? Super dense post or one at a time? Other?
     
subego  (op)
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Jul 5, 2018, 12:07 AM
 
I’m a one-at-a-time guy, but I’m also flexible.
     
subego  (op)
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Jul 5, 2018, 12:25 AM
 
Ultimately, even though Roberts is conservative, what makes him stand out from other conservatives on the court is he’s not a dick.

There’s also a continuum of possible decisions. He’s not going to be Justice Baby Killer, but he’s not going to punt it all back to the states either.
     
OreoCookie
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Jul 5, 2018, 12:45 AM
 
Originally Posted by Chongo View Post
Whoever the nominee is, they will get "Borked" to a new level, especially if the are Catholic.

Do you actually know why Feinstein asked that question?
I don't suffer from insanity, I enjoy every minute of it.
     
Chongo
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Jul 5, 2018, 07:15 AM
 
Originally Posted by OreoCookie View Post
Do you actually know why Feinstein asked that question?
If stare decisis is so sacred, we would still have Plessy V Ferguson.
     
subego  (op)
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Jul 5, 2018, 03:11 PM
 
1) I predict it’s going to come up Trump has been party to abortions.

2) I predict he’s going to try the “would have been legal in New York” gambit.
     
OreoCookie
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Jul 5, 2018, 08:35 PM
 
Originally Posted by Chongo View Post
If stare decisis is so sacred, we would still have Plessy V Ferguson.
Are you avoiding to answer my question?
I don't suffer from insanity, I enjoy every minute of it.
     
The Final Dakar
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Jul 5, 2018, 09:41 PM
 
Out of curiosity chongo, on a scale of 1-10, with 1 being centrist and 10 being extreme right wing, where would you put Roberts and Kennedy?
     
Chongo
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Jul 6, 2018, 11:18 AM
 
Originally Posted by OreoCookie View Post
Are you avoiding to answer my question?
Do believe that once the SCOTUS has decide a case, a later court cannot overturn it?
     
Chongo
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Jul 6, 2018, 11:22 AM
 
Originally Posted by The Final Dakar View Post
Out of curiosity chongo, on a scale of 1-10, with 1 being centrist and 10 being extreme right wing, where would you put Roberts and Kennedy?
Without combing through reams of decisions, Kennedy 5, Roberts TBA.
On this scale, where would RGB be? -10?
( Last edited by andi*pandi; Jul 6, 2018 at 07:34 PM. Reason: accuracy)
     
The Final Dakar
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Jul 6, 2018, 11:34 AM
 
Deep in the negatives, yes.

Would you say if Kennedy is a 5, Roberts is at least a 6?

Edit: just noticed you changed my quote. Can you please answer the question without unnecessary shenanigans?
     
The Final Dakar
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Jul 8, 2018, 05:58 PM
 
Originally Posted by subego View Post
The “funny” thing is, the way I read the board, much easier to flip gay marriage.
The paradox being its probably less controversial on the whole. Even republicans are close to 50% mark. What they'll really be a wall to is any attempt to elevate gay rights to equal status of women or minorities.
     
The Final Dakar
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Jul 8, 2018, 06:00 PM
 
Originally Posted by Thorzdad View Post
The court-watchers I've heard seem to feel the same thing. It seems he's become a little more concerned about his legacy as Chief Justice, and taking away previously-awarded rights doesn't reflect well on that.
Originally Posted by subego View Post
Yup.

Legacy, and he’s sensitive to optics.

He’s also less hardcore than Thomas and Alito.
Guys, just this term: https://twitter.com/fordm/status/1011975412937838603
Kagan in dissent: "Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis."
     
The Final Dakar
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Jul 8, 2018, 06:23 PM
 
Originally Posted by subego View Post
Ultimately, even though Roberts is conservative, what makes him stand out from other conservatives on the court is he’s not a dick.

There’s also a continuum of possible decisions. He’s not going to be Justice Baby Killer, but he’s not going to punt it all back to the states either.
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?
     
Chongo
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Jul 9, 2018, 09:29 PM
 
Trump nominates the author of the Star Report. That should make some heads explode.
     
subego  (op)
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Jul 10, 2018, 07:32 AM
 
Originally Posted by The Final Dakar 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.
     
Chongo
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Jul 10, 2018, 08:19 AM
 
No #Stop Barret sign?
     
The Final Dakar
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Jul 10, 2018, 12:44 PM
 
Nice job, NBC. Time to see some heads roll.
     
subego  (op)
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Jul 10, 2018, 02:47 PM
 
Originally Posted by The Final Dakar View Post
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.
Wat?

ROBERTS: Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.

ROBERTS: Roe vs. Wade is the settled law of the land... There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.
     
Chongo
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Jul 10, 2018, 02:55 PM
 
Originally Posted by subego View Post
Wat?

ROBERTS: Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.

ROBERTS: Roe vs. Wade is the settled law of the land... There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.
Plessy V Ferguson was “settled law” for 53 years until Brown V Board of education. Dred Scott was settled law as well.
     
subego  (op)
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Jul 10, 2018, 03:07 PM
 
The decision isn’t a foregone conclusion.

My point is I don’t think his record is good evidence he’s going to flip the law.
     
reader50
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Jul 10, 2018, 03:10 PM
 
Originally Posted by Chongo View Post
Dred Scott was settled law as well.
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.
     
The Final Dakar
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Jul 10, 2018, 03:21 PM
 
Originally Posted by subego View Post
Wat?

ROBERTS: Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.

ROBERTS: Roe vs. Wade is the settled law of the land... There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.
That was addressed under Point 1.
     
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Jul 10, 2018, 03:23 PM
 
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.
And Plessy? Korematsu wasn’t “repudiated” for 74 years.
     
The Final Dakar
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Jul 10, 2018, 03:24 PM
 
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.
Slavery never lost in the SCOTUS.
     
 
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