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The Future of the Supreme Court (Page 20)
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andi*pandi
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May 19, 2022, 01:28 PM
 
in a world where right to repair auto laws are passing, it seems odd that car repair has more freedom than personal repair.

If I thought they were cracking down on bootleg or fake morning after pills, to protect people from scam artists, that would be one thing, but I don't for a second buy that. The minute this record was leaked people starting hoarding birth contol, morning after pill, and other women's health items. They want to prevent those things being shared. You know, when the law changes. As they hope it will.
     
subego  (op)
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May 19, 2022, 04:28 PM
 
Originally Posted by andi*pandi View Post
They want to prevent those things being shared.
Yes. That’s why it’s illegal to do that In Missouri.

This bill didn’t make it illegal. It was illegal before this bill. As far as I’m aware, sharing prescription drugs with people to whom they weren’t prescribed is illegal everywhere in this country.

I have a prescription for muscle relaxants. When I share them, which I do, I’m breaking the law.


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Thorzdad
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May 24, 2022, 05:51 PM
 
     
OreoCookie
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May 24, 2022, 06:30 PM
 
That should show all the people who claim conservative judges are necessarily pro life!
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Thorzdad
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May 24, 2022, 06:59 PM
 
“Pro life” pertains exclusively to the unborn. Once mom pops you out, it’s a loud “fuck you and your mother.”
     
Brien
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May 25, 2022, 12:28 AM
 
Now I really wonder if SCOTUS plans on upending gun control full stop when they rule on New York State Rifle & Pistol Asso­ci­ation Inc. v. Bruen. Concealed carry? Sure! Licenses/background checks? No way! Guns at school? You bet!
     
OreoCookie
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May 25, 2022, 01:03 AM
 
The thing that gives me hope is that if SCOTUS is too out of step with the American public at large, eventually this house of cards will fall.
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Thorzdad
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May 25, 2022, 05:32 AM
 
What do you think all the efforts at gerrymandering and voter-supression throughout the states have been about? Shoring-up the house of cards no matter what the public at-large thinks.

The conservatives on the court are intent on handing as much power as they can over to the states, and reducing the federal government (and the constitution) to as close to a footnote as possible.
     
subego  (op)
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May 25, 2022, 02:36 PM
 
I read over Shinn v. Ramirez. It’s complex, so I need to go over it a couple more times. I’m actually glad to be forced to read a Thomas opinion. In general I tend to ignore them (unfairly, I might add).

My executive summary of the reasoning (as I understand it so far) is as follows.

1) The Sixth Amendment clause that a defendant must be provided counsel generally only applies at trials. It does not apply post-conviction. Sotomayor acknowledges this in her dissent.

2) Therefore, a post-conviction failure to introduce relevant evidence is the fault of the defendant, not their counsel. Ineffective counsel in post-conviction proceedings is not grounds for Federal intervention except in very narrow circumstances, which this case does not reach.


ETA: this is all related to the general stricture of US law where new evidence can’t be introduced during an appeal.
( Last edited by subego; May 25, 2022 at 03:10 PM. )
     
OAW
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May 25, 2022, 03:43 PM
 
Originally Posted by subego View Post
I read over Shinn v. Ramirez. It’s complex, so I need to go over it a couple more times. I’m actually glad to be forced to read a Thomas opinion. In general I tend to ignore them (unfairly, I might add).
“Justice” Thomas once again proves the conventional wisdom in the Black community that he will nearly always vote in a manner that is at odds with the interests of those who look like him. African-Americans are disproportionately represented in the ranks of the wrongfully convicted by significant margins. And yet “Justice” Thomas takes the position that actual, provable innocence is not enough to get a prisoner off death row in the interests of justice because of a legal technicality on procedural grounds. When he knows good and damned well that Black people are not only more likely to be given the death penalty but also more likely to be wrongfully convicted in the first place. Unfortunately, I’m not at all surprised by the actions of our resident Uncle Ruckus on the SCOTUS.

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subego  (op)
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May 30, 2022, 11:43 PM
 
Originally Posted by OAW View Post
actual, provable innocence is not enough to get a prisoner off death row
I’ve been wanting to read the decision more closely in an attempt to better fathom this, but have been dogged by an unending succession of 14 hour work days.
     
OreoCookie
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May 31, 2022, 12:34 AM
 
Originally Posted by subego View Post
I’ve been wanting to read the decision more closely in an attempt to better fathom this, but have been dogged by an unending succession of 14 hour work days.
Don't worry, when real life intervenes, there is nothing you can do.

The line of argumentation that you outlined is not just not convincing, but has a strong disregard of human life. It seems super hard for people to get their conviction lifted even in cases where there was blatant misconduct by the prosecution and/or strong exculpatory evidence. In cases where the convicted person faces the death penalty, I am surprised how “pro life” the six conservative justices are.
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subego  (op)
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May 31, 2022, 01:46 AM
 
I was sort of drilling upwards with my previous summary. Drilling down from the top, the fundamental line of argumentation is “the law says we do X, so we do X… if this causes bad results Congress needs to fix it, and then we’ll do that instead”. This is a pretty standard conservative line. Yes, it can get a bit Judge Dredd.

As I understand it, the majority claims the law sets forth when a federal evidentiary hearing can be held, and that this was not one of those cases.
( Last edited by subego; May 31, 2022 at 02:26 AM. )
     
OreoCookie
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May 31, 2022, 03:00 AM
 
Originally Posted by subego View Post
Drilling down from the top, the fundamental line of argumentation is “the law says we do X, so we do X… if this causes bad results Congress needs to fix it, and then we’ll do that instead”.
I'd still say there are constitutional rights, which override whatever laws are on the books now — especially when it comes to a person's life.
Originally Posted by subego View Post
This is a pretty standard conservative line. Yes, it can get a bit Judge Dredd.
Call me jaded, I agree with you, but right now all I see is hypocrisy.
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subego  (op)
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May 31, 2022, 03:11 AM
 
Originally Posted by OreoCookie View Post
I'd still say there are constitutional rights, which override whatever laws are on the books now — especially when it comes to a person's life.
I’m not being snarky, I honestly have so idea which right you’re thinking of.

Is the hypocrisy this versus their alleged Roe v. Wade decision?
     
OreoCookie
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May 31, 2022, 08:55 PM
 
Originally Posted by subego View Post
I’m not being snarky, I honestly have so idea which right you’re thinking of.

Is the hypocrisy this versus their alleged Roe v. Wade decision?
Yup, that's what I am thinking of, although it is not the only decision.
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subego  (op)
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May 31, 2022, 09:30 PM
 
These decisions appear consistent to me.

By my reading of the Constitution, the relevant law in regards to abortion is the 10th Amendment. Roe v. Wade twists the Constitution into a pretzel to extract a right it does not grant.

There’s a stare decisis argument to be made it should stand regardless, but the law says the power over abortion is reserved to the states.

Their alleged decision to overturn Roe v. Wade is consistent with “the law says we do X, so we do X”.
     
reader50
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May 31, 2022, 11:37 PM
 
That is simplistic, and doesn't actually agree with the law. Below, the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
You're assuming that as Abortion is not mentioned in the Constitution, it must be reserved to the States. But the 10th doesn't say that. It says "to the States" OR "to the people". As the Constitution doesn't nail it down, the Federal government could assign it whichever way. 100% states + 0% people. Or 0% states + 100% people. Or any balance in between.

I have not read Roe, so this may be inexact. My impression is that SCOTUS assigned it mostly to each woman (to the people). As an internal matter of their bodies. With the States having more of a say when viability is reached.

As the Constitution is not specific about when legal protection begins, the Feds can definitely decide that too. Assigning it to the people involved (the mother) and/or the state.

However, the Constitution does imply (in a different context) that Citizenship begins at birth. Article II, Section 1. Emphasis added.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
So following the actual wording, we can draw two conclusions:
1) People delivered by C-section are ineligible to be President. Unless they were citizens before the Constitution was adopted.
2) Implied: Constitutional rights do not apply before a natural birth.
     
OreoCookie
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Jun 1, 2022, 01:28 AM
 
Originally Posted by subego View Post
These decisions appear consistent to me. […]
Yes, in isolation you can make all of this work, you can invoke state's rights in some moments, but not others, emphasize personal choice when convenient but dismiss it at other times, etc. However, that seems like an a posteriori justification of your opinion rather than following a coherent set of principles to their logical conclusion.

I was more speaking about the lack of a coherent philosophical background: I don't think it is philosophically, morally and logically consistent to be so concerned about the rights of even zygotes but not have protection of (innocent) life at the forefront in other circumstances. Even in cases of gross misconduct of the prosecution and/or where new evidence of actual innocence became available it is almost impossible to overturn a verdict via post-conviction relief. Or at least have a death sentence commuted. (Also, many people who are pro life are also in favor of the death penalty. This, too, makes no sense to me.)
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OreoCookie
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Jun 1, 2022, 01:38 AM
 
Originally Posted by reader50 View Post
That is simplistic, and doesn't actually agree with the law. Below, the 10th Amendment.

You're assuming that as Abortion is not mentioned in the Constitution, it must be reserved to the States. But the 10th doesn't say that. It says "to the States" OR "to the people". As the Constitution doesn't nail it down, the Federal government could assign it whichever way. 100% states + 0% people. Or 0% states + 100% people. Or any balance in between.
A lot of rights we take for granted are not mentioned in the Constitution, e. g. marriage is not in the Constitution. Other important powers like executive privilege or subpoena power of Congress are all derived from but not mentioned in the Constitution.

That's the issue with simplistic justifications like “it is not in the Constitution”, they are usually wrong and do not account for the nuances of life.
Originally Posted by reader50 View Post
I have not read Roe, so this may be inexact. My impression is that SCOTUS assigned it mostly to each woman (to the people).
I listened to an episode of Ezra Klein's podcast, and it seems one of the factors why privacy was such a pivotal argument was simply that these types of arguments had a lot of pull in state and federal courts at that time, but has fallen out of favor since. If this is accurate, then it makes a lot more sense why the Roe vs. Wade decision hinged on that point.
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subego  (op)
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Jun 1, 2022, 07:07 AM
 
Originally Posted by OreoCookie View Post
I don't think it is philosophically, morally and logically consistent to be so concerned about the rights of even zygotes…
I don’t care about zygotes personally. If I did I’d have a problem with states (such as my own) where it’s perfectly legal to get rid of them.

What’s philosophically, morally, and logically consistent is following the law. The law (IMO) says this is a matter for states to decide.
     
OreoCookie
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Jun 1, 2022, 08:21 AM
 
Originally Posted by subego View Post
I don’t care about zygotes personally. If I did I’d have a problem with states (such as my own) where it’s perfectly legal to get rid of them.
Sorry, I should have been more precise: I was lamenting the lack of a coherent philosophy amongst the conservative majority in this case.
Originally Posted by subego View Post
What’s philosophically, morally, and logically consistent is following the law. The law (IMO) says this is a matter for states to decide.
State law cannot abrogate constitutional rights.
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subego  (op)
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Jun 1, 2022, 08:23 AM
 
@reader,

AFAIK, Roe v. Wade is predicated on the 14th Amendment, not this interpretation of the 10th.

There’s a textualist argument the “to the people” clause in the 10th should be respected, I tend to hew more originalist, and no one at the time seemed to care much about that clause. What they did care about, and left a lengthy record of debate demonstrating their concern, was protecting the states from federal interference.
     
subego  (op)
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Jun 1, 2022, 08:24 AM
 
Originally Posted by OreoCookie View Post
State law cannot abrogate constitutional rights.
Correct.

I still don’t know what right is being violated, though.
     
subego  (op)
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Jun 1, 2022, 08:45 AM
 
Originally Posted by OreoCookie View Post
Sorry, I should have been more precise: I was lamenting the lack of a coherent philosophy amongst the conservative majority in this case.
The coherent philosophy is “follow the law”.
     
reader50
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Jun 1, 2022, 01:37 PM
 
Originally Posted by subego View Post
...
There’s a textualist argument the “to the people” clause in the 10th should be respected, I tend to hew more originalist, and no one at the time seemed to care much about that clause. What they did care about, and left a lengthy record of debate demonstrating their concern, was protecting the states from federal interference.
So it was non-controversial at the time. The 2nd Amendment was also - everyone took the meaning for granted. It only got fought over later, when assumptions changed.
Originally Posted by subego View Post
The coherent philosophy is “follow the law”.
I guess we should follow the law as written, except for those inconvenient sections that should be ignored? Modern court practice is to give weight to every part of a law that hasn't been struck down. To my knowledge, no part of the 10th has been repealed.

Also, I think citizenship happens at birth, though as it's not directly stated in the Constitution, it must be specified in lesser laws.

It's invalid to claim abortion is clearly not protected under the law, when the actual wording is ambiguous. Allowing those rights to be assigned to the States or to the person. And ignoring undesirable parts of the Bill of Rights does not fix that.
     
subego  (op)
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Jun 1, 2022, 02:10 PM
 
Originally Posted by reader50 View Post
I guess we should follow the law as written, except for those inconvenient sections that should be ignored?
Show me how by declaring this the right of the states isn’t following the law as written. The Amendment says “or to the people” not “and to the people”. By making it ambiguous, it is up to the courts to resolve the ambiguity. That’s what they’re doing.

It’s not required, but I offered a rationale for the disambiguation, which is we have ample evidence of what concerned the authors. Like, page after page they wrote on this specific subject.

As an aside, what concerned the authors of the 2nd Amendment is whether conscientious objectors should retain the right to bear arms. As in there wasn’t even a question to them the right to bear arms is predicated on and requires membership in the militia.
     
subego  (op)
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Jun 1, 2022, 02:47 PM
 
Originally Posted by reader50 View Post
Also, I think citizenship happens at birth, though as it's not directly stated in the Constitution…
It is. 14th Amendment.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”


Edit: I want to note Google helped refresh me on this. I had forgotten. The part of the 14th which sticks with me is the “due process” clause.
( Last edited by subego; Jun 1, 2022 at 03:28 PM. )
     
subego  (op)
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Jun 1, 2022, 06:18 PM
 
Originally Posted by reader50 View Post
So it was non-controversial at the time.
The rights of the states versus that of the federal government was incredibly controversial at the time. Like I said, pages and pages.

I have trouble reconciling that with the proposition there was a lack of controversy about giving the Supreme Court authority to redelegate the rights of the states at-will. I see it as far more likely there was a lack of controversy because no one read the clause as intending to give the Supreme Court this authority.
     
OreoCookie
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Jun 1, 2022, 08:15 PM
 
Originally Posted by subego View Post
The coherent philosophy is “follow the law”.
That seems like a non-argument to me, it avoids the actual argument what the legal situation is.
A ban on cruel and unusual punishment is in the Constitution, as is the 14th Amendment. Why is the finality of legal verdicts ranked higher than life and liberty of persons, especially when new evidence or misconduct by the prosecution or police has come to light?
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subego  (op)
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Jun 1, 2022, 10:44 PM
 
Since I still haven’t had a chance to thoroughly examine the decision, I’m shooting a bit from the hip.

The process due by way of the 14th Amendment is to allow introduction of new evidence on appeal only in a strictly defined set of circumstances. This process is due if and only if these circumstances are present. If they’re not, there is no 14th Amendment claim. Six Justices, including Roberts who’s usually pretty reasonable, argue these circumstances aren’t present.

An 8th Amendment claim is more on-point (IMO). I’m not sure one was made though. Being arsed to bring it up during arguments is one of those things conservatives can be sticklers about.
( Last edited by subego; Jun 1, 2022 at 11:34 PM. )
     
 
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