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The Future of the Supreme Court (Page 16)
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subego  (op)
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Dec 6, 2021, 12:02 PM
 
Originally Posted by Laminar View Post
I mean, it probably couldn't have gone lower, so...
I was pretty much tied at the bottom with fainting kid until he fainted.

We were both fat and “sensitive” (I was fatter). I was annoying, but he came off as actually weird. In hindsight? On the spectrum.
( Last edited by subego; Dec 6, 2021 at 12:17 PM. )
     
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Dec 6, 2021, 08:04 PM
 
Originally Posted by subego View Post
Do you have data on this, or is it an assumption?
I think this is pretty obvious that this is supposed to scare most doctors into compliance and to err on the side of not providing abortions. Just look at the number of clinics providing abortions in those states: have they gone up or gone down?
Originally Posted by subego View Post
My own assumption is since we can find only two examples of death due to a refusal to abort in the entire first world in recent history, doctors have been willing to take the risk.
When did anyone here claim that “… we can find only two examples of death” or that “doctors have been willing to take the risk”? You are jumping to conclusions here. These were two recent prominent examples in first-world countries directly tied to changes in abortion law (Poland adopted a much stricter one while it led to the legalization of abortion in Ireland with broad public support). Do you want me to google for other examples? I could do that, but so could you. These were just examples that came to my mind while writing, because they were crystallization points for constitutional change in Ireland and the protests in Poland.
Originally Posted by subego View Post
This is currently illegal per Hellerstedt, but before that, access to abortion providers was defined by Casey as being within 150 miles.

This was Alito’s beef with the Hellerstedt decision. He argued the restrictions put in place by the Texas law would only place about 5% of the state outside of 150 miles from a provider, and as such, the law should be tailored to fix that rather than be entirely overturned.
I think you get lost in arbitrary details here. Many states are down to a few, sometimes a single provider of legal abortions. Other clinics had to close because of onerous restrictions that were not grounded in any medical reason.
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subego  (op)
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Dec 7, 2021, 03:24 PM
 
I’m still working up a reply, but I came across the ectopic pregnancy law. FWIW, it demands a reimplant “if applicable”. So it’s not really a demand to perform a procedure which doesn’t exist, but a demand to perform it once it does.

Edit: to be clear, I’m not claiming it’s a good law, just that it’s somewhat less batshit than it appears on the surface (i.e., the legislators who wrote it were likely aware it is currently impossible to reimplant an ectopic pregnancy, and the law doesn’t attempt to claim otherwise).
( Last edited by subego; Dec 7, 2021 at 03:47 PM. )
     
subego  (op)
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Dec 7, 2021, 09:58 PM
 
Originally Posted by OreoCookie View Post
When did anyone here claim that “… we can find only two examples of death” or that “doctors have been willing to take the risk”? You are jumping to conclusions here. These were two recent prominent examples in first-world countries directly tied to changes in abortion law (Poland adopted a much stricter one while it led to the legalization of abortion in Ireland with broad public support). Do you want me to google for other examples? I could do that, but so could you. These were just examples that came to my mind while writing, because they were crystallization points for constitutional change in Ireland and the protests in Poland.
I wasn’t saying anyone claimed it. I’m making the assumption death due to refusing an abortion makes the news, and since the Ireland example is almost a decade old (which I wouldn’t call recent), that it must not be happening that often. If it’s not happening that often, it means doctors aren’t afraid to give abortions when the life of the mother is at risk. If they were afraid, there’d be more deaths.

I Googled “death due to abortion refusal” and get the Ireland example, the Poland example, and we can add one from the Dominican Republic, which isn’t first world (I qualified my comment with “in the entire first world”).

Should I use a different search term?


Edit: legalization of abortion in Ireland was not due to a mother’s death IIUC.

Edit 2: missed one in El Salvador.
( Last edited by subego; Dec 7, 2021 at 10:23 PM. )
     
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Dec 7, 2021, 10:26 PM
 
Originally Posted by subego View Post
[…] and since the Ireland example is almost a decade old (which I wouldn’t call recent), that it must not be happening that often.
Why would you make that assumption? How many cases occur? How many of them end up in the news? Usually these stories are very tragic and the family often doesn't want any publicity.

And reality is more complicated than that. What about complications or death from illegal abortions? How many women or family will go to the press and e. g. admit they committed a crime? I think most men underestimate how traumatizing abortions can be, and not necessarily because of the procedure, but because they often have to make that decision alone. E. g. if you are in the EU (e. g. Poland or Ireland), you could go to another EU country for an abortion.
Originally Posted by subego View Post
I’m still working up a reply, but I came across the ectopic pregnancy law. FWIW, it demands a reimplant “if applicable”. So it’s not really a demand to perform a procedure which doesn’t exist, but a demand to perform it once it does.

Edit: to be clear, I’m not claiming it’s a good law, just that it’s somewhat less batshit than it appears on the surface (i.e., the legislators who wrote it were likely aware it is currently impossible to reimplant an ectopic pregnancy, and the law doesn’t attempt to claim otherwise).
If they are aware, why do they make it into a law? It is either just grandstanding that can cause a lot of suffering. (Like I said, ectopic pregnancies come with all sorts of risks, and even pro-life doctors's organizations recognize that this is one case where a pregnancy just isn't viable. If complications occur, it might have negative impact on a woman's fertility, if it is recognized too late, it could be life threatening.) I hadn't even considered that an abortion to be honest until I heard of such laws being proposed.

Lastly, I expect that similar laws will be proposed and perhaps enacted in other states, not least because a lot of Republican politics is more for show and less about substance.
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subego  (op)
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Dec 7, 2021, 10:42 PM
 
Originally Posted by OreoCookie View Post
If they are aware, why do they make it into a law?
So they don’t have to rewrite the law when it becomes feasible.

A 12 minute video is asking a lot of me (I really hate it as a medium for this kind of thing), but I’m totally willing to do legwork to find a text version of the argument. I should look for something along the lines of “ectopic re-implantation” and stuff like “strategy” and “diversion”?

PS You don't need to watch the video. It was just how I found out about the proposed law a few months ago (the video is two years old).
( Last edited by OreoCookie; Dec 7, 2021 at 11:21 PM. )
     
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Dec 7, 2021, 11:20 PM
 
Originally Posted by subego View Post
So they don’t have to rewrite the law when it becomes feasible.
Why would this would be necessary. If reimplantation of ectopic pregnancies were to become possible, it would be covered under existing statutes, wouldn't it?

The only reason as far as I can see is to make a political statement.
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subego  (op)
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Dec 7, 2021, 11:26 PM
 
Originally Posted by OreoCookie View Post
Why would you make that assumption? How many cases occur? How many of them end up in the news? Usually these stories are very tragic and the family often doesn't want any publicity.
The scenario we’re talking about is a doctor refusing treatment to a patient and they die.

Your claim is this happens often, but we just don’t hear about it?
     
subego  (op)
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Dec 7, 2021, 11:28 PM
 
I’m assuming you didn’t intend to edit my post.
     
subego  (op)
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Dec 7, 2021, 11:47 PM
 
Originally Posted by OreoCookie View Post
If reimplantation of ectopic pregnancies were to become possible, it would be covered under existing statutes, wouldn't it?
Legally speaking, that’s the whole point. There’s not a question now. It’s been set out explicitly. Whether it’s covered under existing statutes is open to interpretation, and this isn’t.

To be clear, it could also be a political statement. I think it’s fair to assume it is. It’s a fairly empty one. The parts of the bill which actually could be enforced in present day are more important, because IIUC it’s the old Ireland law, where doctors get life. Right now, the law is massively unconstitutional. Less so if Roe and Casey get flipped.

As an aside, this law is buried in a 700+ page bill, which is super-annoying. It also seemed to have passed unanimously in the Ohio House.
     
subego  (op)
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Dec 8, 2021, 12:10 AM
 
Originally Posted by OreoCookie View Post
What about complications or death from illegal abortions?
Under the Mississippi law, if there’s no health issue with the mother, and no severe fetal abnormality, the only reason someone would need to get an illegal abortion is if they wanted one after 15 weeks.

Isn’t this enough time to get a legal one?
     
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Dec 8, 2021, 01:49 AM
 
@subego
I'm having trouble following your train of thought, you seem to be jumping from topic to topic. That makes a substantive discussion quite difficult.
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subego  (op)
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Dec 8, 2021, 01:03 PM
 
I’ll narrow it down to one topic: how many women in the first world die due to being refused an abortion?

I noted the two you mentioned were the only ones I’d heard of.

You told me Google it, which I did, only those two show up.

This is somehow no longer good enough, and you claim it’s not showing up in Google because people keep their tragedies private.

I reply with:

Originally Posted by subego View Post
The scenario we’re talking about is a doctor refusing treatment to a patient and they die.

Your claim is this happens often, but we just don’t hear about it?
I would like you to answer this question. You claim this happens often, doctors killing their patient by refusing treatment, but we just don’t hear about it?
     
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Dec 8, 2021, 09:53 PM
 
Originally Posted by subego View Post
I’ll narrow it down to one topic: how many women in the first world die due to being refused an abortion?
I have the feeling that strays too far from the original topic. Further, I think it’ll lead to a discussion where the two of us would spend a lot of time speculating and googling. I think you will have a hard time finding hard data on this, because of e. g. privacy regulations like HIPAA, the abortions being performed in other jurisdictions and not having reliable statistics on illegal abortions.

All I can say is that all female Mexican friends I have had over the years have had a story about abortion. And one of the first things I was told when coming to Chile (priori to Chile legalizing some abortions) that I should make sure to use condoms, because otherwise I’d have to buy plane tickets to Argentina (where abortions were and are legal). (I found this quite weird, because I am not a guy who sleeps around, just not my personality.)
Originally Posted by subego View Post
I would like you to answer this question. You claim this happens often, doctors killing their patient by refusing treatment, but we just don’t hear about it?
First of all, I did not claim death happens very often, just that you should not infer any statistics from you not being able to find any other victims easily. Further, not all of this needs to lead to death. Having an abortion performed by a backalley doctor is quite traumatizing and very unsafe (my Mexican ex gf told me a story where she accompanied a friend who had an abortion performed). The impact is felt disproportionately by poorer people, because women with means can go to a place where they have a safe, legal abortion. Polish women can travel to the Netherlands or Germany, for example. Since I am decidedly middle class (and I’d assume you are, too), I don’t have much intersection with these people, and I wouldn’t want to speculate on how often that happens. In addition, we need to keep in mind that abortions and other terminations of pregnancies (e. g. ectopic pregnancies like my mom had or miscarriages) are not a topic that women open up very easily about — even amongst close friends. A substantial share of women have had a pregnancy terminated early for one reason or another (if you believe this page, 24 % of all women will experience that in their life times).

Given the title of the thread, I’d propose we get closer to the topic at hand, the current Supreme Court case and what it might mean for current precedent.
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subego  (op)
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Dec 9, 2021, 03:55 AM
 
All my avenues of inquiry relate to the topic at hand, which is the Mississippi law the under review by the Supreme Court.

This law allows an abortion for any reason up to 15 weeks.

Ectopic pregnancies aren’t relevant, because those are treated before 15 weeks.

Illegal abortions aren’t relevant, because this law allows for safe and legal abortions up to the point where it’s a bad idea to have an abortion without some medical reason.

What is relevant is whether the “health of the mother” clause and such gives doctors enough latitude they don’t end up injuring or killing their patients. Whether these clauses do will wholly depend on how they’re enforced. In the case of the Mississippi law, the enforcement body is the state medical board. If they can’t enforce it without killing pregnant women, the problem isn’t the law. Though I’m not familiar with the punishments, a whole slew of countries in Europe have “heath of the mother” clauses in law because they have a cutoff just like Mississippi, except it’s at 12 weeks. Are they killing pregnant women, too?

As abortion laws go, is it possible this one is actually somewhat reasonable?

This is in contrast to, say, the laws in Mexico, which lead to everything you mention.
     
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Dec 9, 2021, 06:59 AM
 
I think in the present context, most of the details of the Mississippi law are quite immaterial, because the law was designed to clearly and directly violate precedent (chiefly Roe vs. Wade and Casey). It was different from other laws that tried to push clinics that performed abortions out of business by layering on ever more rules and regulations, for instance. And that is also how it is argued before the Supreme Court.

I’m not trying to evade a discussion here, but I try to focus it on what I think matters.
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Dec 10, 2021, 12:06 PM
 
SCOTUS just ruled that the insane Texas abortion law can stand. They also ruled that abortion providers cannot sue those who target them using the citizen-vigilante mechanism of the law.
     
subego  (op)
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Dec 10, 2021, 03:13 PM
 
That makes it sound like they upheld the law, but FWIU, they just didn’t grant an injunction. The DoJ lawsuit is still in play.
     
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Dec 10, 2021, 09:16 PM
 
Originally Posted by subego View Post
That makes it sound like they upheld the law, but FWIU, they just didn’t grant an injunction. The DoJ lawsuit is still in play.
But also that is a conscious decision, just like e. g. the decision to take or decline to hear a particular case, and Supreme Court Judges are well aware of the implications. For example, you can read into SCOTUS’s decision to hear the Mississippi abortion law case: not hearing the case would have meant accepting the decision of the lower courts that it violates current precedent.

The same goes for the insane Texas law. (I don’t call it insane for what it says about abortion, but that it proposes a mechanism to abridge any constitutional right by seemingly putting it out of reach of the courts. I think it is rare for gun rights lobby groups to write an amicus brief in support of abortion providers.)
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subego  (op)
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Dec 11, 2021, 01:05 AM
 
This is the same case which had the emergency stay shadow docketed awhile back.

The same issue still applies. The law says judges can’t be sued to enjoin them from hearing non-existent cases. Grant this injunction, now the law says judges can be sued for it. Granting the injunction means taking responsibility for each and every negative unintended consequence caused by changing the law.

Are these negative unintended consequences too high a cost? Is that an easy question, or is it due more extensive consideration?
     
reader50
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Dec 11, 2021, 01:20 AM
 
As I understand it, the judges are not being sued. I thought court clerks were being sued (as a group), to be forbidden from processing the bounty-suits the statute allows.

Since no executive-branch official can enforce the statute, the enforcement was left to the courts. So if the court processes cannot be sued, then there is no one to legally oppose. While that is certainly the intention of the statute (and the Texas lawyer could not identify any proper person to sue), it is improper.

If this is allowed, then most any law can be redone in such a fashion. So that no one is answerable for it, and no one could be sued to oppose it. Citizen-bounty statutes could be passed for most anything imaginable. Traffic law enforcement perhaps.

But in fact, some government officials *are* enforcing it. The members of the judicial branch: clerks, marshals, judges. At least one of these groups must be sue-able, or we get laws that cannot be challenged. Shall we allow bounty suits of $1 million for a California stop (rolling stop) at stop signs?

The Constitution forbids cruel and unusual punishments that do not fit the crime. But so far as I'm aware, that is on government-meted punishment. I don't think there is such a limit on private lawsuits. Otherwise, all those ridiculous billion-dollar lawsuits would be clipped immediately.
     
subego  (op)
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Dec 11, 2021, 01:30 AM
 
The litigants sued everyone. Judges, clerks, an activist.

They all got thrown out except the medical board people. That’s how the case is still going forward.

AFAIK, the DoJ case is still moving forward, and they can sue the state.
     
subego  (op)
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Dec 11, 2021, 06:33 PM
 
To be clear, I’m not exactly thrilled with the idea the only challenger with unfettered grounds to sue is the DoJ. Would Barr or Sessions have sued?

However, I think we can take solace in that the conservatives on the Court have now twice declared their unwillingness to grant an injunction isn’t related to the constitutionality or lack thereof with the law itself. They’re either telegraphing they don’t approve, or they’re trolling.
     
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Dec 11, 2021, 07:23 PM
 
Even gun rights organizations are concerned. At least one, anyway.
The Firearms Policy Coalition (FPC), a national gun rights organization, filed an amicus brief with the Supreme Court supporting a cert petition for Whole Woman’s Health v. Jackson.
They have much the same concerns that I outlined above. Allowing this kind of "no one to sue" workaround can be used against other established rights.
FPC is interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction on abortion and its delegation of enforcement to private litigants could just as easily be used by other States to restrict First and Second Amendment rights or, indeed, virtually any settled or debated constitutional right. FPC takes no position on whether abortion should be protected by the Constitution but believes that the judicial review of restrictions on established constitutional rights, especially those protected under this Court’s cases, cannot be circumvented in the manner used by Texas.
Their brief (PDF) 676 KB
From Amicus’s perspective, if pre-enforcement review can be evaded in the context of abortion it can and will be evaded in the context of the right to keep and bear arms. While the political valences of those issues seem to be opposites, the structural circumstances are too similar to ignore. As with Roe and Casey, many States view Heller as wrongly decided. Those States, with the help of many circuit courts, have showed an ongoing refusal to accept the holding in Heller and a continuing creativity in seeking to circumvent any protections for, and to chill the exercise of, Second Amendment rights. It is hardly speculation to suggest that if Texas succeeds in its gambit here, New York, California, New Jersey, and others will not be far behind in adopting equally aggressive gambits to not merely chill but to freeze the right to keep and bear arms.
For the foregoing reasons, this Court should grant the petition for a writ of certiorari.
     
subego  (op)
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Dec 11, 2021, 09:20 PM
 
As everyone has noted, if the conservatives on the Court want to overturn Roe, there’s nothing stopping them. If Roe is overturned, Texas can just ban at-will abortions entirely.

If that’s their plan, how do they benefit by also allowing this current Texas law to stand?
     
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Dec 11, 2021, 10:59 PM
 
Originally Posted by subego View Post
If that’s their plan, how do they benefit by also allowing this current Texas law to stand?
You are right that SB8 would become moot, and would likely be quickly be replaced by other laws. But that doesn’t mean the legal question is moot, and the Supreme Court punting on it could have serious consequences regardless.

Even with Roe vs. Wade overturned, I still think this law is unconstitutional — not because of what it does, but because of its enforcement mechanism. The bit that reader quoted from the amicus brief hits the nail on the head: letting it stand would create a loophole that can be used by other legislatures to curb other constitutional freedoms without the possibility of review. What is worse is that these laws could be “enforced” in a manner not compatible with the constitution. Citizens could focus their attention on minorities and other people who they think “do not fit” into the community.
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subego  (op)
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Dec 11, 2021, 11:30 PM
 
Whether it’s constitutional is distinct from whether the legal framework exists to grant a stay.

If the conservatives on the Court think or want it to be constitutional, they can just say so. Why are they going out of their way to say they’re not doing it? Just so they can go “SIKE”, when it swings back around and they uphold the law?
     
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Dec 12, 2021, 12:01 AM
 
My growing suspicion is the conservatives are just unwilling to issue a ruling that supports abortion. Once they strike down abortion, they'll happily strike down laws like SB8. Striking it down now is favorable to abortions, so ... delay and avoid. Remand to lower courts. Can't issue a ruling that helps abortion providers.

Someone tell me I'm wrong. But this is the only interpretation that seems to fit.
     
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Dec 12, 2021, 03:44 AM
 
I have to agree with reader, it is a simple and cogent explanation.

Conservatives seem to have a complicated relationship with Supreme Court judges that have been appointed by Republican Presidents: when these judges decide “against them”, the judges get criticized harshly and the nomination process has gotten clamped down more and more. I can’t help but feel this must have an effect on judges. And abortion is probably the litmus test for conservative judges. It plus an outsized role in the nomination process.
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subego  (op)
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Dec 12, 2021, 09:39 AM
 
I’m super busy today, so I won’t be able to reply until later, but I wanted to correct what I said earlier about the DoJ lawsuit. I guess that was completely dismissed.

No details other than the cert was “improvidently granted”. It was 8-1 (Sotomayor dissenting), so I imagine it’s legit.
     
subego  (op)
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Dec 13, 2021, 10:21 AM
 
@reader,

This could be correct. If they intend to overturn Roe what’s the point of granting a stay with the Texas law?

If they don’t overturn Roe, then there’s the answer to whether they’re willing to render a decision helping abortion.


@Oreo,

My general feeling is Supreme Court Justices don’t give AF what anyone thinks of their decisions.
     
subego  (op)
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Jan 26, 2022, 04:44 PM
 
Down goes Breyer!
     
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Jan 26, 2022, 07:43 PM
 
Well he timed it well at least so Biden has time to nominate before next election...
Biden pledged to nom first AA woman so that's cool.
     
subego  (op)
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Jan 26, 2022, 08:03 PM
 
I’d imagine unless he’s terminal, Breyer wouldn’t step down unless he’s sure his replacement is already in the bag.
     
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Jan 27, 2022, 01:18 AM
 
@subego
If the NYT's headline “Court's Senior Liberal to Retire Upon Successor's Confirmation” is to be believed, you are spot-on. Makes total sense. I'm glad he didn't follow Ginsburg's playbook and waited too long.
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subego  (op)
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Jan 27, 2022, 02:09 AM
 
This also fits into the original premise of my thread. How Supreme Court justices are appointed has fundamentally changed. The Senate has asserted the authority the Constitution gives them over the process.

Democratic control of the Senate is in danger of not surviving midterms, which is why he’s retiring now. The definition of “too long” is set by the Senate, when it used to be set by the President.

Like I argued from the beginning, I consider this an improvement. The power to make such ridiculously important appointments should be decentralized. It used to be we said the real legacy of a President is their Supreme Court appointments. It is an improvement for them to be forced to share that legacy with others. This also incentivizes older Justices to step down rather than croak, which is a good thing.

I understand how people are bothered by how the dice have rolled lately in terms of who gets the picks, but that hasn’t changed. It’s always been a dice roll who gets the picks.

I will agree it can be argued the Republicans netted themselves an extra pick by instigating the strategy in the first place.
( Last edited by subego; Jan 27, 2022 at 02:36 AM. )
     
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Jan 27, 2022, 03:48 AM
 
Originally Posted by subego View Post
This also fits into the original premise of my thread. How Supreme Court justices are appointed has fundamentally changed. The Senate has asserted the authority the Constitution gives them over the process.
In what way?
The Senate has refused candidates before, Harriet Miers comes to mind. It is just that Since the late 1990s the governing style in the Senate has changed from collaborative to extremely adversarial. That's not the Senate asserting its authority, it's gridlock.
Originally Posted by subego View Post
The definition of “too long” is set by the Senate, when it used to be set by the President.
If by “too long” you mean serve on the Supreme Court for too long, then I'm confused: the term is set by the Constitution, the job is a lifetime appointment. I think it has become much more common, though, that Justices stay in office until literally their death. Even the “younger” justices are way too old. In my book, a Scalia or a Ginzburg at age 50 could run circles around their older selves at age 80.

Of all recent Justices, it seems that former Justice Souter has retired at the earliest, at the “young” age of 69. I think more justices should follow his example, independently of who is in power.
Originally Posted by subego View Post
Like I argued from the beginning, I consider this an improvement. The power to make such ridiculously important appointments should be decentralized. It used to be we said the real legacy of a President is their Supreme Court appointments. It is an improvement for them to be forced to share that legacy with others. This also incentivizes older Justices to step down rather than croak, which is a good thing.
Decentralized? I'm not sure what you mean by that. The process is still perfectly centralized, the Presidency and Senate are federal institutions.

And in what way is the current situation an improvement? Up until the 1990s, Supreme Court Justices were confirmed with extremely broad majorities. Justice Ginsburg received 96 votes in the Senate. Nevertheless, there were some instances where candidates were not confirmed, so the Senate never acted as a rubber stamp for the President's appointee.

The current system is dysfunctional. The Senate refusing Harriet Miers (technically, Miers asked Bush 2 to withdraw her nomination, but that was because of the lack of support amongst Republicans) is quite different from what happened to Merrick Garland.
Originally Posted by subego View Post
I understand how people are bothered by how the dice have rolled lately in terms of who gets the picks, but that hasn’t changed. It’s always been a dice roll who gets the picks.
Well, like you write yourself, it isn't just the roll of the dice as of late, so I'd say something has changed.
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Jan 27, 2022, 04:48 AM
 
Maybe a short way to summarize my argument is that the Senate culture's change from a more collaborative to an adversarial body has only changed the rules of the game (of politics), but it hasn't increased its power. In the current climate, when President and the majority in the Senate are of opposite colors, there is gridlock — less passes, which leaves all parties involved with less power.

The President only gets to have their judicial candidates confirmed when the Senate is controlled by the same party they belong to. That cuts both ways. In the past, judicial appointments were mixed, now they are partisan. Moderates no longer get federal judgeships even though most people are moderates. But that also means that the Senate loses influence over nominations when Presidency and the majority party in the Senate are of opposite colors. The minority party has much less influence, too. There is no longer a tradition of apportionment or having to find more moderate candidates that are more suitable.

And while that seems like a good deal for the majority, they won't be the majority forever. Right now the Senate seems relatively evenly split where elections can fall either way. That makes majorities more fragile.
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Jan 27, 2022, 06:30 AM
 
The power the Senate “gained”, is to gridlock a Supreme Court nominee. More accurately, they began to exercise this power. They didn’t gain it, they’ve always had it.

If it’s the will of the constituents represented by the majority in the Senate that a nominee get gridlocked, that’s what the majority should do. The gridlock reflects the lack of consensus in the country, and the correct result is for that seat to remain empty until such time as there is greater consensus.
     
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Jan 27, 2022, 02:59 PM
 
Originally Posted by subego View Post
If it’s the will of the constituents represented by the majority in the Senate that a nominee get gridlocked, that’s what the majority should do. The gridlock reflects the lack of consensus in the country, and the correct result is for that seat to remain empty until such time as there is greater consensus.
But the Senate isn't representative of the majority of the population. It grants greater proportional representation to low-population states, which overwhelmingly lean conservative. By excluding moderate justices, this produces the current Supreme Court. Overtly conservative membership, making rulings over a national population that leans slightly left of center. And who definitely prefer moderates.

We live in a representative democracy, but current senate/presidential policies produce a Court that is not representative of the population. As the presidency has continued to change hands between parties, the nomination process changed on the Senate side.

I agree with Oreo - the current Senate process qualifies as gridlock, based on the observed results.
     
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Originally Posted by reader50 View Post
But the Senate isn't representative of the majority of the population.
That’s the whole point of the Senate, no?

The legislators who gave the authority to confirm a nominee to the Senate instead of the House were aware of the difference, and the implications of giving it to one and not the other, no?
     
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Jan 27, 2022, 03:27 PM
 
I believe the original intent was stability over time. That the House would swing with current public whims, while the Senate moderated things. With longer terms, to ride out short-term variations.

Unfortunately, the Senate is now dominated by partisan differences. Which look nearly permanent. Instead of moderating short-term issues, they're imposing minority rule. I'm certain this was not the intent of the Founders.
     
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Jan 27, 2022, 03:49 PM
 
The Founding Fathers designed a Senate where a split electorate quite easily leads to minority rule.

The Founding Fathers did not intend for the electorate to be split, but they laid out what they think should happen in that scenario: minority rule.

One does not design a governing body which gives equal power to California and Montana without expressly condoning minority rule. The same goes for designing a system where a President can win without a majority vote.
( Last edited by subego; Jan 27, 2022 at 04:15 PM. )
     
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Originally Posted by reader50 View Post
Which look nearly permanent.
“This too shall pass.”
     
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Jan 27, 2022, 08:06 PM
 
Originally Posted by subego View Post
The power the Senate “gained”, is to gridlock a Supreme Court nominee. More accurately, they began to exercise this power. They didn’t gain it, they’ve always had it.
Yeah, but that’s just one side of the tally. The price is that it is hard to pass anything, even things with 75 % public support. When you price that in, do you still think this is a net gain of power for the Senate? IMHO it makes the Presidency stronger, because it makes measures the President can take with executive orders much more appealing. But these are more brittle.

Ultimately, I think gridlock is a net loss of power for Congress (including the Senate) and a net gain for the Executive branch.
Originally Posted by subego View Post
If it’s the will of the constituents represented by the majority in the Senate that a nominee get gridlocked, that’s what the majority should do. The gridlock reflects the lack of consensus in the country, and the correct result is for that seat to remain empty until such time as there is greater consensus.
When it comes to issues I don’t think this necessarily reflects the will of the people. There are issues like common sense gun regulations with broad public support that don’t have a snowball’s chance in the Senate. Most people want abortions to be legal, safe and rare. They wouldn’t mind higher taxes for the very rich.

But there is also a second age-old question in democracies: should senators (as small-r representatives of the people) be trustees or delegates, i. e. do they see themselves as acting on behalf of the electorate, but are expected to make their own decisions? Or do their decisions necessarily have to reflect the majority in their districts?
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Originally Posted by OreoCookie View Post
even things with 75 % public support
What were you thinking of here?
     
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Jan 27, 2022, 08:23 PM
 
Originally Posted by reader50 View Post
But the Senate isn't representative of the majority of the population. It grants greater proportional representation to low-population states, which overwhelmingly lean conservative. By excluding moderate justices, this produces the current Supreme Court. Overtly conservative membership, making rulings over a national population that leans slightly left of center. And who definitely prefer moderates.
That’s a very good point. I think this is very harmful: the present Supreme Court is a monoculture when it comes to judicial philosophy. At present moderates from either side have no chance of being nominated: conservative-leaning moderate justices were always lamented in the conservative opinion sphere. And the last attempt to appoint a liberal-leaning moderate was killed in the crib by the Senate, Garland didn’t even receive a hearing. Surely a violation of the spirit of the US Constitution.
Originally Posted by reader50 View Post
We live in a representative democracy, but current senate/presidential policies produce a Court that is not representative of the population. As the presidency has continued to change hands between parties, the nomination process changed on the Senate side.
There is also a much broader problem, and that is that the political system in the US, the winner-takes-all system and the low number of Representatives leads to a skewed representation of the population: Republicans in NYC or any other urban center have no representation. Ditto for Democrats who live rural Alabama. That means neither side has any incentive to include the opinions of these groups when they make decisions. Even when we are thinking of “overwhelming majorities” for one party or the other, that often means 70-30 or so. That’s a whole lot of people.
Originally Posted by subego View Post
The Founding Fathers designed a Senate where a split electorate quite easily leads to minority rule.
As far as I understand the Senate was designed to be a body populated by “elderly statesmen” who reason things out. For most of its history the Senate has indeed embodied this political tradition — not always perfectly and sometimes with really bad outcomes for minorities (lack of civil rights laws, etc.). From this perspective the Senate was not about majority rule, but about compromise and reaching across the isle.
Originally Posted by subego View Post
The Founding Fathers did not intend for the electorate to be split, but they laid out what they think should happen in that scenario: minority rule.
The Founding Fathers also were against political parties for philosophical reasons and yet joined them, because the system wouldn’t work without them in practice.
Originally Posted by subego View Post
One does not design a governing body which gives equal power to California and Montana without expressly condoning minority rule. The same goes for designing a system where a President can win without a majority vote.
We should not make judgements with hindsight: I don’t think they thought that the US would be this large and had such a disparity in terms of population. California has 40x the population of quite a few states. I doubt that this was what they had in mind.
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Jan 27, 2022, 08:29 PM
 
Originally Posted by subego View Post
What were you thinking of here?
When it comes to gun control, here is a list of specific measures with support in the high 60s and 70s as well as requiring background checks for all gun sales, something which seems to have support with more than 80 % of the people. However, I should add that polling is quite difficult, because it depends very much on how you ask these questions, so I prefer polls of specific measures. I think there are issues in health care with similar support. With abortion, it depends very much how you ask the question, so polling is more complicated.

Point is that even if you think the percentages are too high or I am wrong about specific issues, it is safe to say that Congress does not represent public opinion well on a whole host of issues.
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Jan 27, 2022, 09:09 PM
 
The difficulty of polling is specifically why I place little weight on these numbers.

For example, the article touts high numbers for support of universal background checks.

As I understand it, a universal background check system would mean allowing anyone to perform a criminal background check on anyone else. I posit this idea is highly unpopular, and if it were made clear in the poll this was a requirement of the system it would poll much lower.


Edit: I mean, it’s not some difficult trick to get good poll numbers for an idea when the costs are hidden from the respondents.
     
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Originally Posted by OreoCookie View Post
We should not make judgements with hindsight: I don’t think they thought that the US would be this large and had such a disparity in terms of population. California has 40x the population of quite a few states. I doubt that this was what they had in mind.
They like, had a map. With this big blank shit in the middle-left because mountains. I don’t think they would be surprised to learn what would become Wyoming turned out empty compared to costal states.
     
 
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