Post by: K-S-U-Wildcats! on July 08, 2018, 11:08:44 PM
I think it’ll be Kavanaugh or Barrett. Both would be solid originalists/textualists and significant improvements over Kennedy. Kavanaugh strikes me as the slightly less controversial pick - more in the safer mold of Gorsuch, Alito, and Roberts. So I guess he’s the favorite.
But then again, controversy may be exactly what Trump wants. It’s no secret that Trump is an expert at trolling the libs into behaving like complete whackadoos utterly outside the mainstream on issues like immigration (Abolish ICE lol) and judges. Barrett’s background as a devout catholic mother of seven would give the libs an absolute meltdown heading into the midterms. And let’s be honest, the optics of picking a woman blunts the liberal’s “ZOMGthispickisgoingtooverturnROEandwecantkillbabiesanymore!” hysteria.
Which hat will Trump choose?! :excited:
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 08, 2018, 11:22:50 PM
The sexist bigoted left will attack her with vitriol never before seen.
Post by: Mrs. Gooch on July 09, 2018, 10:30:33 AM
Post by: Phil Titola on July 09, 2018, 10:37:48 AM
I hope it's the woman.You are an odd fella.
The sexist bigoted left will attack her with vitriol never before seen.
Post by: K-S-U-Wildcats! on July 09, 2018, 12:46:07 PM
That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?
:lol: See? This is what we could be enjoying for the next few months!
Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....
Post by: Phil Titola on July 09, 2018, 12:54:35 PM
Smart to focus on this topic vs. the other failures over the last month.That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?See? This is what we could be enjoying for the next few months!
Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 12:58:57 PM
That lady doesn't even believe in birth control. What makes you think she wouldn't be as bad as the men on Roe v Wade?
:lol: See? This is what we could be enjoying for the next few months!
Alas, it is being reported that Trump is down to Kavanaugh and Hardiman. Ugh, just two more Gorsuch clones....
The rage will still be good if it's a white guy, just not as good as if it were a woman.
Post by: Rage Against the McKee on July 09, 2018, 01:32:39 PM
Post by: Phil Titola on July 09, 2018, 01:43:19 PM
Post by: K-S-U-Wildcats! on July 09, 2018, 01:52:01 PM
Post by: Kat Kid on July 09, 2018, 01:55:03 PM
It sure must be frustrating for the MSM when one hit piece crowds out another. "Damn, our hyperventilating about overturning Roe is taking all the oxygen away from our hyperventilating about Russia, North Korea, China, David Hogg, and Stormy Daniels!"
still a big Scott Pruitt fan?
Post by: K-S-U-Wildcats! on July 09, 2018, 01:56:25 PM
It sure must be frustrating for the MSM when one hit piece crowds out another. "Damn, our hyperventilating about overturning Roe is taking all the oxygen away from our hyperventilating about Russia, North Korea, China, David Hogg, $cott Pruitt, and Stormy Daniels!"
still a big Scott Pruitt fan?
Updated.
Post by: K-S-U-Wildcats! on July 09, 2018, 02:03:51 PM
So how long until Roe v. Wade gets overturned? Some states will be passing laws to test it in January, right?
I kinda suspect we need to get at least one more originalist/textualist on the SC before Roe is in any real danger. Roberts will likely take a more "centrist" role now that Kennedy is gone. All they need to do is convince Roberts that killing babies is actually a tax. "Oh, ok, must be Constitutional then."
Seriously though, it would be nice to just sweep Roe into the incinerator from a standpoint of cleaning up the tortured "penumbra of an emanation" jurisprudence, but the SC typically takes a much more incremental approach. So we're likely stuck with Roe's basic (extra-constitutional and medically suspect) framework for a while.
https://www.washingtonexaminer.com/the-pervading-dishonesty-of-roe-v-wade (https://www.washingtonexaminer.com/the-pervading-dishonesty-of-roe-v-wade)
Quote
Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
“The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).
Quote
Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
North Carolina Law Review, 1985
Quote
Edward Lazarus — Former clerk to Harry Blackmun.
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
….
“What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent - at least, it does not if those sources are fairly described and reasonably faithfully followed.”
“The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them,” FindLaw Legal Commentary, Oct. 3, 2002
“[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
“Liberals, Don’t Make Her an Icon” Washington Post July 10, 2003.
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William Saletan — Slate columnist who left the GOP 2004 because it was too pro-life.
“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”
“Unbecoming Justice Blackmun,” Legal Affairs, May/June 2005.
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John Hart Ely — Yale Law School, Harvard Law School, Stanford Law School
Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
….
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”
“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973).
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Benjamin Wittes — Washington Post
Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”
“Letting Go of Roe,” The Atlantic Monthly, Jan/Feb 2005.
Quote
Richard Cohen — Washington Post
“[T]he very basis of the Roe v. Wade decision — the one that grounds abortion rights in the Constitution — strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.”
….
“As a layman, it’s hard for me to raise profound constitutional objections to the decision. But it is not hard to say it confounds our common-sense understanding of what privacy is.
“If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers.
….
Roe “is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.”
….
“Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”
“Support Choice, Not Roe” Washington Post, October 19, 2005.
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Alan Dershowitz — Harvard Law School
Roe v. Wade and Bush v. Gore “represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes…. Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)…. [C]lear governing constitutional principles … are not present in either case.”
Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford) 2001, p. 194.
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Cass Sunstein — University of Chicago and a Democratic adviser on judicial nominations
“In the Court’s first confrontation with the abortion issue, it laid down a set of rules for legislatures to follow. The Court decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges.”
“The Supreme Court 1995 Term: FOREWORD: LEAVING THINGS UNDECIDED,” 110 Harvard Law Review 6, 20 (1996).
“What I think is that it just doesn’t have the stable status of Brown or Miranda because it’s been under internal and external assault pretty much from the beginning…. As a constitutional matter, I think Roe was way overreached. I wouldn’t vote to overturn it myself, but that’s because I think it’s good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled.”
Quoted in: Brian McGuire, “Roe v. Wade an Issue Ahead of Alito Hearing,” New York Sun November 15, 2005
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Jeffrey Rosen — Legal Affairs Editor, The New Republic
“In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.
….
“Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”
“Worst Choice” The New Republic February 24, 2003
Quote
Michael Kinsley
“Against all odds (and, I’m afraid, against all logic), the basic holding of Roe v. Wade is secure in the Supreme Court.
….
“…a freedom of choice law would guarantee abortion rights the correct way, democratically, rather than by constitutional origami.”
“Bad Choice” The New Republic, June 13, 1994.
“Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision….
“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”
“The Right’s Kind of Activism,” Washington Post, November 14, 2004.
Quote
Kermit Roosevelt — University of Pennsylvania Law School
“t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.
“This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entited to the protection of the 14th Amendment.
….
“By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”
“Shaky Basis for a Constitutional ‘Right’,” Washington Post, January 22, 2003.
Quote
Archibald Cox — JFK's Solicitor General, Harvard Law School
“The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution”
The Role of the Supreme Court in American Government, pp. 113-114 (1976)
Post by: Kat Kid on July 09, 2018, 02:22:26 PM
Post by: sonofdaxjones on July 09, 2018, 02:28:31 PM
Post by: Kat Kid on July 09, 2018, 03:05:50 PM
Post by: Spracne on July 09, 2018, 03:27:41 PM
Post by: mocat on July 09, 2018, 03:42:12 PM
Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.
:D
Post by: K-S-U-Wildcats! on July 09, 2018, 03:49:22 PM
Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.
:lol: Roe just emanated from the wrong penumbra! Easy fix!
Post by: catastrophe on July 09, 2018, 03:49:56 PM
Post by: Rage Against the McKee on July 09, 2018, 03:58:05 PM
Post by: Spracne on July 09, 2018, 04:07:49 PM
Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.
:lol: Roe just emanated from the wrong penumbra! Easy fix!
I'm not talking about any penumbras (penumbrae?) here. You don't exactly have clean hands, here, since you are guilty of the same sins that you're complaining about: deciding your desired outcome and then reverse-engineering a justification. Point me to legal authority that supports the notion that life begins at conception. There is ample, deeply rooted authority to the contrary.
Post by: Trim on July 09, 2018, 04:21:49 PM
why does anyone even bother with the pretense that the Supreme Court is anything other than political power being executed?
It feels better and more closely matches the checks and balances stuff that children are taught.
Post by: K-S-U-Wildcats! on July 09, 2018, 04:25:01 PM
Everyone admits that the legal reasoning in Roe is suspect. I'd love to see the court overturn Roe and then turn around and make it clear that the right recognized in Roe is actually grounded in equal protection--exactly where it would be if it were decided today. But in 1974, gender equal protection was in its infancy. The big abortion cases since Roe have developed this line of gender equality already, so even without Roe, we'll still have abortion.
:lol: Roe just emanated from the wrong penumbra! Easy fix!
I'm not talking about any penumbras (penumbrae?) here. You don't exactly have clean hands, here, since you are guilty of the same sins that you're complaining about: deciding your desired outcome and then reverse-engineering a justification. Point me to legal authority that supports the notion that life begins at conception. There is ample, deeply rooted authority to the contrary.
Wait a second... :lol: hold up juuuuusssst a second here :lol: Are you honestly asserting that I can't criticize a completely made-up right to abortion.... unless I can point to a contrary provision of the Constitution that says life begins at conception? :lol: Is that really the point you just made? Didn't you go to law school?
How about this. You might want to sit down for this because I'm about to blow your mind. Maybe, and just hear me out, maybe the Constitution doesn't speak to abortion, or when life begins, period. And that's it. So then elected representatives would be free to pass laws allowing or prohibiting abortion, kinda like they do for almost everything else.
Post by: Spracne on July 09, 2018, 04:43:53 PM
Post by: Spracne on July 09, 2018, 05:04:54 PM
Post by: Kat Kid on July 09, 2018, 05:07:54 PM
Post by: K-S-U-Wildcats! on July 09, 2018, 05:44:38 PM
do you two dress up in powdered wigs and stockings to write crap out with quil and ink? What the eff?
That’s good, KK.
Sprac, you’ve already demonstrated your basic ignorance of constitutional law by arguing that I can’t criticize the invention of a right to abortion unless I can point to where the constitution says life begins - an argument so amusingly idiotic that you’ve now quickly abandoned in favor of.... your equally silly equal protection argument.
This will be the last of your foolish arguments I bother to shoot down tonight - I’ve got Trumpmas plans - so two points briefly: First, equal protection for women does not in any way require a right for a woman to kill a human life growing inside of her. That doesn’t have a damned thing to do with equal protection. Second, your straw man argument that originalists must believe that the equal protection clause to the 14th amendment only applies to slaves completely misunderstands originalism. Start here: https://www.nationalreview.com/corner/neil-gorsuch-explains-originalism-dianne-feinstein-citing-14th-amendment/amp/ (https://www.nationalreview.com/corner/neil-gorsuch-explains-originalism-dianne-feinstein-citing-14th-amendment/amp/)
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:11:23 PM
...unless states pass (enforce, rather) laws that conflict with the supreme law, in which case those laws are void. I suggested above that abortion bans should be properly viewed as violative of the Fourteenth Amendment--not under some murky fundamental rights substantive due process thingy, but rather as denying women the equal protection of the laws. <--The equal protection clause is an actual part of the Constitution, not a penumbra. But as a professed Originalist, I'm sure you believe that we are free to discriminate against women because the purpose of the 14th Amendment was to protect newly freed slaves.
I don't see how a law that applies to everyone the exact same could violate the equal protection clause of an amendment intended to protect freed slaves.
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:14:53 PM
Post by: Spracne on July 09, 2018, 07:21:58 PM
(Crap i've parsed below)
WARNING: Seriously, do NOT read this message if you're not KSU-W. It will bore the crap out of you.
Quote
Sprac, you’ve already demonstrated your basic ignorance of constitutional law by arguing that I can’t criticize the invention of a right to abortion unless I can point to where the constitution says life begins - an argument so amusingly idiotic that you’ve now quickly abandoned in favor of.... your equally silly equal protection argument.
I think the problem is just that I know so, so much more than you do about this, and I mistakenly assumed I could elide the details without losing you. That's probably why my remarks seem confusing to you. But I can slow things down and go step by step. First, I did not abandon anything: The legal definition of when life begins and the equal protection argument are connected, but I skipped a few steps by jumping to the question. Next time I won't assume the link need not be explained in excruciating detail that will make this thread unreadable for all but a handful of people:
Let's pretend Roe never happened, and Jane Doe visits a state clinic in Kansas seeking to terminate her pregnancy. At the clinic, Jane Doe is denied this medical procedure and informed that the state makes it a crime to seek or provide an abortion (let's even say there's an exception when the life of the mother is in jeopardy). Jane Doe--a very astute constitutional law scholar--files suit in federal district court seeking an injunction against enforcement of the Kansas statute on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment. Judge KSU-W grants Kansas's motion to dismiss, erroneously believing that Kansas is immune from suit pursuant to the 11th Amendment (this is a suit for equitable relief, not money damages, you dumbshit). Jane Doe appeals, but a panel of the 10th Circuit determines it lacks Article III standing because Jane Doe, since filing her case, has subsequently given birth and handed the child over for adoption, and thus there is no active case or controversy for the court to decide. Her appeal is dismissed for mootness. Jane Doe appeals, and SCOTUS grants certiorari because pregnancy, as a temporary disability, is capable of repetition yet evading review. What result?
Of course, the Court will first address whether it has subject matter jurisdiction. It concludes that pregnancy fits within the "capable of repetition yet evading review" exception to mootness. The Court also sternly admonishes Judge KSU-W for misunderstanding the reach of the 11th Amendment. Having determined it has jurisdiction, the Court proceeds to the merits.
Because of Judge KSU-W's hilariously bad dismissal, the record on appeal is devoid of much factual content. So the Court looks to the pleadings. Jane Doe has alleged that the Kansas law violates the Equal Protection Clause because it unfairly discriminates against her because she is a woman. The Justices--all principled jurists--prudently apply the existing framework on gender discrimination under the EPC.
Step 1: Is gender a suspect classification under the EPC, such that a classification based on gender triggers heightened scrutiny? Yes, yes it is.
Step 2: Does the law classify on the basis of gender on its face? That is, is the law facially discriminatory? Yes. Only women can become pregnant, therefore we are dealing with a law that classifies on the basis of gender on its face.
Step 3: What is the standard of review? The standard of review in gender discrimination cases is intermediate scrutiny. We ask: Is the law substantially related to an important government interest? First, we need to hear Kansas's supposed "important government interest(s)" before we can determine the fitness between the means and the ends. In Planned Parenthood v. Casey, the Supreme Court recognized a legitimate interest in protecting potential human life, but that interest in potential life only becomes compelling after the point of viability. By contrast, the Kansas law is an outright ban on abortion--even before viability. Because the government must advance a secular purpose, it cannot rely as so many do on Judeo-Christian norms of morality. At this stage, the burden is on Kansas to convince the Court that it is advancing an "important government interest."
So, what's your secular, important governmental interest that justifies this law? You're going to have to argue that the rights of the unborn child have been violated. But in order to do that, you're going to have to make the novel argument--I emphasize that this indeed would be truly novel law--that pre-viability fetuses are capable of possessing legal rights. The problem is, that's a really hard argument to make if you give weight to the whole common law tradition, which as an Originalist I have to believe you do.
So, yes: If you're defending an equal protection challenge to an outright abortion ban, you--bearing the burden--have to make a legal argument for when "life", as a human being capable of having the rights of all living Americans, begins. Do you see the link now?
Steps 4+: Unnecessary as a matter of Constitutional avoidance.
Quote
First, equal protection for women does not in any way require a right for a woman to kill a human life growing inside of her. That doesn’t have a damned thing to do with equal protection.
Sorry, Chief. See supra.
Quote
Second, your straw man argument that originalists must believe that the equal protection clause to the 14th amendment only applies to slaves completely misunderstands originalism. Start here: https://www.nationalreview.com/corner/neil-gorsuch-explains-originalism-dianne-feinstein-citing-14th-amendment/amp/ (https://www.nationalreview.com/corner/neil-gorsuch-explains-originalism-dianne-feinstein-citing-14th-amendment/amp/)
Well I'll be damned, even Justice Gorsuch doesn't know what Originalism means! Or, more likely, he was trying to rough ridin' get confirmed when he made those statements, and his conflated explanation is more palatable. But what is described there is more akin to Textualism, a.k.a a plain-meaning approach. That is not controversial. In fact, it's a bedrock canon of statutory and contractual interpretation. The problem is, that's not what Originalism means, and if you were really as knowledgeable as you claim, you'd know that. Originalists look either to the intent of those who passed/ratified a law/Amendment/Constitution (minority view) or to how a normal, reasonable person would have understood the law/Amendment/Constitution at the time when it was passed/ratified (majority view).
(https://media1.tenor.com/images/92629ab945ab20b63378b4660994a06f/tenor.gif?itemid=6226924)
Post by: SkinnyBenny on July 09, 2018, 07:29:36 PM
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:45:02 PM
It could also rule against the mother claiming a law that only punishes somebody else, not her, cannot possibly descriminate against her. Is somebody going to argue that age limits on drinking aren't enforceable because they only apply to young people, a potential new protected class (after nba one and done litigation filed by the 300+ D1 going up against that talent)????
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:48:16 PM
Post by: Spracne on July 09, 2018, 07:52:37 PM
However, thanks to advances in embryonic healthcare in the last 45 years, the court could reasonably find that life (misnamed "viability")begins at an unfertilized egg and mush the so-called mother's case. Afterall, if viability is the standard why are we wasting resources on the terminally ill, endangered and threatened species, and the human race as a whole?
It could also rule against the mother claiming a law that only punishes somebody else, not her, and cannot possibly descriminate against her.
I think we look at legal rights through the lens of property law, since that's the oldest flavor of our legal tradition. Rights become vested at some point (birth? viability?) and only death divests them. Property law provides the legal tradition, and it would take a novel decision to depart from that. Not impossible, just lacking in precedent.
Regarding third-party standing, there is ample precedent showing that third parties can assert the 14th Amendment rights of others in cases like this (Craig v. Boren, Eisenstadt v. Baird, Griswold v. Connecticut, etc).
Post by: Spracne on July 09, 2018, 07:54:05 PM
Further, the court could find that its various standards of review for so-called protected classes, that were made up from whole cloth, was bad law from day 1, and wipe the slate clean.
I thought Conservatives were big fans of stare decisis? People and governments have organized their lives and affairs around these standards for so long that it would be inequitable to depart from settled law.
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:56:32 PM
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:57:54 PM
Further, the court could find that its various standards of review for so-called protected classes, that were made up from whole cloth, was bad law from day 1, and wipe the slate clean.
I thought Conservatives were big fans of stare decisis? People and governments have organized their lives and affairs around these standards for so long that it would be inequitable to depart from settled law.
The conservatives saved us from dred scott and plessy, and can surely save us from roe.
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 07:59:16 PM
Add: Wickard
Post by: Spracne on July 09, 2018, 08:00:07 PM
However, thanks to advances in embryonic healthcare in the last 45 years, the court could reasonably find that life (misnamed "viability")begins at an unfertilized egg and mush the so-called mother's case. Afterall, if viability is the standard why are we wasting resources on the terminally ill, endangered and threatened species, and the human race as a whole?
It could also rule against the mother claiming a law that only punishes somebody else, not her, cannot possibly descriminate against her. Is somebody going to argue that age limits on drinking aren't enforceable because they only apply to young people, a potential new protected class (after nba one and done litigation filed by the 300+ D1 going up against that talent)????
I quoted before your edit, but the age limit thing would likely pass equal protection muster because it does not discriminate based on a protected class. After all, there are only 5 groups of people that get heightened scrutiny (race, alienage, national origin, gender, and illegitimacy), and you'll be happy to learn that there have been no new suspect groups added since the early 1980's when the court started to turn more strongly conservative. There will likely be no more new suspect classifications added, as the court in its recent decisions has moved toward a hybrid liberty/equality approach that doesn't require suspect classification in order to invalidate laws. Since the classification in your hypo (age) is not a suspect class, the government would need only show that the law is rationally related to a legitimate government interest, which basically means the government always wins. Regarding your NBA example, I think the door to new protected classes is closed, and also there's no state action there to even address, so the Constitution doesn't apply.
Post by: Spracne on July 09, 2018, 08:07:52 PM
(https://www.liveaction.org/news/wp-content/uploads/2018/07/Photo-shared-publicly-on-Facebook.png)
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 08:09:56 PM
However, thanks to advances in embryonic healthcare in the last 45 years, the court could reasonably find that life (misnamed "viability")begins at an unfertilized egg and mush the so-called mother's case. Afterall, if viability is the standard why are we wasting resources on the terminally ill, endangered and threatened species, and the human race as a whole?
It could also rule against the mother claiming a law that only punishes somebody else, not her, cannot possibly descriminate against her. Is somebody going to argue that age limits on drinking aren't enforceable because they only apply to young people, a potential new protected class (after nba one and done litigation filed by the 300+ D1 going up against that talent)????
I quoted before your edit, but the age limit thing would likely pass equal protection muster because it does not discriminate based on a protected class. After all, there are only 5 groups of people that get heightened scrutiny (race, alienage, national origin, gender, and illegitimacy), and you'll be happy to learn that there have been no new suspect groups added since the early 1980's when the court started to turn more strongly conservative. There will likely be no more new suspect classifications added, as the court in its recent decisions has moved toward a hybrid liberty/equality approach that doesn't require suspect classification in order to invalidate laws. Since the classification in your hypo (age) is not a suspect class, the government would need only show that the law is rationally related to a legitimate government interest, which basically means the government always wins. Regarding your NBA example, I think the door to new protected classes is closed, and also there's no state action there to even address, so the Constitution doesn't apply.
There are no protected classes until the court creates one from thin air, which was my obvious point.
Post by: Spracne on July 09, 2018, 08:13:20 PM
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Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 08:17:02 PM
IT'S KAVANAUGH! (sp?)
(https://www.liveaction.org/news/wp-content/uploads/2018/07/Photo-shared-publicly-on-Facebook.png)
Does that make hardigan two-time bridesmaid?
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 08:19:11 PM
Read footnote 4 of Carolene Products. We don't live in a pure Democracy, and for good reason. Sometimes, the Democratic processes break down, and that's when we need an undemocratic branch to step up. It's a delicate balance of power that must be carefully attended to, but it's necessary.
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The fact that's buried in a fn should be all you need to know about the collective balls of the scotus.
Also, ftr, conlaw is for tools.
Post by: Spracne on July 09, 2018, 08:19:42 PM
Post by: Spracne on July 09, 2018, 08:21:28 PM
Read footnote 4 of Carolene Products. We don't live in a pure Democracy, and for good reason. Sometimes, the Democratic processes break down, and that's when we need an undemocratic branch to step up. It's a delicate balance of power that must be carefully attended to, but it's necessary.
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The fact that's buried in a fn should be all you need to know about the collective balls of the scotus.
Also, ftr, conlaw is for tools.
It was a mustard seed that etc, etc, etc...
Also, that's a strange sentiment coming from you.
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 08:35:58 PM
Post by: sys on July 09, 2018, 08:37:02 PM
IT'S KAVANAUGH! (sp?)
oh well, too bad. any of the other three would have really owned the libs. big missed oppy.
Post by: mocat on July 09, 2018, 08:39:04 PM
Post by: Phil Titola on July 09, 2018, 08:42:17 PM
IT'S KAVANAUGH! (sp?)
(https://www.liveaction.org/news/wp-content/uploads/2018/07/Photo-shared-publicly-on-Facebook.png)
Does that make hardigan two-time bridesmaid?
(https://i.pinimg.com/736x/4e/2c/ec/4e2cec8449f1c21770b327980fa354a1--funny-comedians-snl-characters.jpg)
Post by: K-S-U-Wildcats! on July 09, 2018, 08:53:47 PM
Oh and holy crap, Spracne- talk about the very definition of word salad! :lol: I actually read through the entirety of your tortured, flawed analysis and I’m not going to respond point by point because I think we’d all re-read Atlas Shrugged first. But cliffs notes version: the vast majority of your bloviation is a completely irrelevant distraction. The constitution does not speak to abortion, period. You don’t need to define when life begins to reach that obvious conclusion. As for the equal protection clause, your argument that a law banning abortion violates equal protection because only women can get pregnant is an absurdity. The analysis is not whether the law applies exclusively to women (which isn’t even the case, as anti-abortion laws apply to everyone, including any man who attempts to provide or procure one), but whether the inability to obtain an abortion make women unequal to men. Such a position is questionable at best.
In short, you’re all wet, but I’m not interested in debating this further with you. At a later time I will head over to the abortion thread to dig out a few other Spracne gems of stupidity, but for now it’s back to the celebration.
Happy Trumpmas everybody! Another fine pick!
Post by: SkinnyBenny on July 09, 2018, 08:56:31 PM
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 09, 2018, 09:01:20 PM
Post by: mocat on July 09, 2018, 09:41:58 PM
https://twitter.com/DonaldJTrumpJr/status/1016450094940479488?s=19
Post by: Trim on July 09, 2018, 10:03:07 PM
Post by: steve dave on July 09, 2018, 10:15:07 PM
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Post by: wetwillie on July 09, 2018, 10:43:38 PM
Post by: catastrophe on July 09, 2018, 11:29:06 PM
Step 2: Does the law classify on the basis of gender on its face? That is, is the law facially discriminatory? Yes. Only women can become pregnant, therefore we are dealing with a law that classifies on the basis of gender on its face.
So if the nu SCOTUS determines Roe was wrongly decided, are you saying conservatives' best hope is pushing scientists to prove a man can get pregnant?
Post by: Spracne on July 10, 2018, 01:11:31 AM
If true, that would definitely be a boon. I have a better strategy, but I'm going to keep it close to the vest, just in case...
Step 2: Does the law classify on the basis of gender on its face? That is, is the law facially discriminatory? Yes. Only women can become pregnant, therefore we are dealing with a law that classifies on the basis of gender on its face.
So if the nu SCOTUS determines Roe was wrongly decided, are you saying conservatives' best hope is pushing scientists to prove a man can get pregnant?
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Post by: Spracne on July 10, 2018, 01:19:12 AM
Good pick. Not as exciting for me as Barrett but oh well. She’ll replace Ruth next year.Most of this is irrelevant, and the rest of it is just plain wrong. You don't know what you're talking about. Admit it.
Oh and holy crap, Spracne- talk about the very definition of word salad!
In short, you’re all wet, but I’m not interested in debating this further with you. At a later time I will head over to the abortion thread to dig out a few other Spracne gems of stupidity, but for now it’s back to the celebration.
Happy Trumpmas everybody! Another fine pick!
There is opinion, such as how you want a Justice to think. And then there's reality, which is just the restrictions that encumber smart, prudent, ivy-league-educated judges regardless of political stripe.
I can only tell you the state of the law. If you want to argue that ought not be the case, do you.
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Post by: Spracne on July 10, 2018, 01:24:50 AM
The ACA makes men pay for coverage for mamograms and breast pumps, and that was found to be okay, ftr.Last time I read it, Article 1 of the U.S. Constitution gives Congress the power to tax and spend for the general welfare? It's specifically enumerated, bub.
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Post by: sonofdaxjones on July 10, 2018, 05:55:34 AM
Post by: catastrophe on July 10, 2018, 06:38:43 AM
If true, that would definitely be a boon. I have a better strategy, but I'm going to keep it close to the vest, just in case...
Step 2: Does the law classify on the basis of gender on its face? That is, is the law facially discriminatory? Yes. Only women can become pregnant, therefore we are dealing with a law that classifies on the basis of gender on its face.
So if the nu SCOTUS determines Roe was wrongly decided, are you saying conservatives' best hope is pushing scientists to prove a man can get pregnant?
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Just get the Koch bros to fund this research. Easy: https://www.livescience.com/60873-men-pregnant-uterus-transplant.html
Post by: steve dave on July 10, 2018, 07:10:05 AM
https://twitter.com/GeoffRBennett/status/1016642192616706050
Post by: chum1 on July 10, 2018, 07:30:26 AM
https://twitter.com/MikeSacksEsq/status/1014266790069833729
Post by: Kat Kid on July 10, 2018, 07:41:09 AM
Post by: sonofdaxjones on July 10, 2018, 07:48:11 AM
A little over a year ago Chuck wrongfully extolled the virtues of not asking specific questions regarding legal issues during the judicial confirmation process.
Glad Chuck has finally come around. Timing notwithstanding, of course.
Post by: chum1 on July 10, 2018, 07:50:43 AM
Seems like a conflict of interest for a sitting Justice to be negotiating his replacement while ruling on issues that concern administration policies, but I'm not a lawyer.
https://twitter.com/BradMossEsq/status/1016657854072320001
Post by: catastrophe on July 10, 2018, 08:07:59 AM
Like, I get wanting to ensure some continuity of your ideals, but if you are morally bankrupt enough to go against the entire point of your job to do so, I’d think you would have left some much bigger fires behind by now.
Post by: Rage Against the McKee on July 10, 2018, 08:23:53 AM
Is this normal/good?
https://twitter.com/GeoffRBennett/status/1016642192616706050
I'm guessing that it's pretty normal, but I really don't know. It's not good, though.
Post by: sys on July 10, 2018, 08:30:34 AM
Post by: Phil Titola on July 10, 2018, 08:58:29 AM
This was kind of my thought. I'm sure our supreme Court watchdogs will give us some insight.Is this normal/good?
https://twitter.com/GeoffRBennett/status/1016642192616706050
I'm guessing that it's pretty normal, but I really don't know. It's not good, though.
Post by: Trim on July 10, 2018, 09:06:12 AM
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 10, 2018, 09:19:33 AM
Is this normal/good?
https://twitter.com/GeoffRBennett/status/1016642192616706050
Fake News
Post by: Fake Sugar Dick (WARNING, NOT THE REAL SUGAR DICK!) on July 10, 2018, 09:20:23 AM
The ACA makes men pay for coverage for mamograms and breast pumps, and that was found to be okay, ftr.Last time I read it, Article 1 of the U.S. Constitution gives Congress the power to tax and spend for the general welfare? It's specifically enumerated, bub.
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GMAFB, now you're just being lazy
Post by: K-S-U-Wildcats! on July 10, 2018, 09:22:08 AM
Post by: sys on July 10, 2018, 09:25:38 AM
Bill/Sean.
in other words, normal and good.
Post by: Trim on July 10, 2018, 09:46:16 AM
Bill/Sean.
in other words, normal and good.
You, the Snyders and now these SCOTUS people are all seat thieves in a way.
Post by: catastrophe on July 10, 2018, 09:49:49 AM
:lol: https://www.zerohedge.com/news/2018-07-10/pop-protests-erupt-after-trump-picks-kavanaugh-supreme-court (https://www.zerohedge.com/news/2018-07-10/pop-protests-erupt-after-trump-picks-kavanaugh-supreme-court)
Is that weird? I mean, they already had a list of candidates Trump was going to pick from specifically because they matched his ideology. Stands to reason they’d be opposed to multiple candidates.
Post by: catastrophe on July 10, 2018, 09:50:42 AM
Post by: sonofdaxjones on July 10, 2018, 10:42:40 AM
Post by: Spracne on July 10, 2018, 12:33:12 PM
spracne, you appear to be basing your 14th argument on equal protection. could there also be an argument in life/liberty? it would seem to me that there could be and that it would be a pretty direct argument, but i dunno.
There are two clauses in the 14th Amendment where all the action happens: due process and equal protection.
Due process encompasses both procedural due process and so-called substantive due process. The conservatives in this thread are skeptical about substantive due process because it is sort of a nebulous concept from which "new" liberty interests are recognized. Under the 14th Amendment, "liberty" is due process, and "equality" is equal protection. Because of the skepticism surrounding substantive due process, I was making a case solely under the Equal Protection Clause, because that clause is less controversial. But the reality is that the court applies a hybrid approach, incorporating elements of both. You can see this in the gay rights cases and in the abortion cases. I can sympathize with the dissenters ITT because it is a little bit of slight of hand that the court engages in. But I have accepted the fact that the machinery of democracy occasionally fails to work for marginalized groups, and while the Supreme Court is reluctant to use its extraordinary powers in this fashion, if the elected branches of government fail to act for a few decades, eventually the Court will engage in a bit of legal fiction in order to do what must be done. Yes, it's very undemocratic. But pure democracy is not a happy state of affairs.
Post by: sys on July 10, 2018, 12:41:52 PM
Post by: sonofdaxjones on July 10, 2018, 01:12:40 PM
Post by: Rage Against the McKee on July 10, 2018, 02:36:51 PM
This guy sucks.
Post by: mocat on July 10, 2018, 02:58:11 PM
https://arstechnica.com/tech-policy/2018/07/net-neutrality-rules-are-illegal-according-to-trumps-supreme-court-pick/
This guy sucks.
ugh
Post by: Trim on May 03, 2022, 11:01:01 PM
why does anyone even bother with the pretense that the Supreme Court is anything other than political power being executed?
It feels better and more closely matches the checks and balances stuff that children are taught.
:lol: :frown: