Octopus Overlords

Little Raven wrote: ↑Mon Dec 13, 2021 7:32 pm There's no such thing as "basic" on the Supreme Court. Each Court is its own special animal, with its own quirks and habits. This Court appears to lean heavily towards textualism, although its worth noting that this court is quite young and has lots of room to evolve. Is textualism inherently inferior to pragmatism or structuralism? I know of no way to objectively determine that. Every legal scholar I've ever known has a slightly different spin on that question.

So far, so good for abortion providers. But look a little harder, and today’s ruling seems like less of a victory for abortion rights—or, for that matter, for those concerned about state efforts to nullify other constitutional rights. First, the Court did not allow providers to sue anyone other than the state licensing officials—including the attorney general or the state clerks who docket cases. Taking suits against clerks off the table will make it hard to block every S.B. 8 suit from going forward. Providers will be in and out of court—and will have to rely on state cases. A clean solution that would end S.B. 8 once and for all may not be possible.

Today’s decision is a win not for abortion providers but for constitutional chaos. It will encourage states, conservative and progressive alike, to see how much they can bypass judicial interpretation of constitutional rights. The decision will lead some to think that abortion rights will be restored in Texas while the Court plans to hold that those rights never existed in the first place.

During the Dobbs argument, the Court gave a clear impression of being indifferent to the political consequences of its actions. This conservative majority looks ready to transform the Constitution and its interpretation in radical, perhaps unpopular ways, the consequences be damned.

Today’s decision only reinforced that impression. Allowing states to perfect the S.B. 8 model will encourage constitutional anarchy. The same might be true of reversing Roe, but the Court’s conservatives don’t seem to mind.

malchior wrote: ↑Mon Dec 13, 2021 1:58 am

Alefroth wrote: ↑Fri Dec 10, 2021 10:14 pmIn Texas, they left the law in place, but are allowing suits against it.

Finally caught up on this. They are allowing ONE suit to stand. They dismissed the DOJ suit outright and a lawsuit against the AG and clerks in Texas. They sent it back down to the lower courts to play out but Roberts pretty much said in his dissent that they majority just laid down a roadmap to shred the constitution. Roe is clearly the immediate focus but the United States just took one big step towards possible dissolution in some possible future. It was a consequential Friday night and most people don't even know it yet.

If you think I'm exaggerating the peril here is what Roberts said -

"The clear purpose and actual effect of S. B. 8 has been to nullify this Court's rulings. It is, however, a basic principle that the Constitution is the "fundamental and paramount law of the nation," and "t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, "f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery." United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake."

Ironically this is somewhat what Drazzil has talked about in the past. He might be getting his wish - the Supremes may take actions that weaken the holding in Marbury v. Madison. It is setting up a possible disaster and civil war. Does anyone still want to argue that SCOTUS isn't possibly on a trajectory as a politicized radical judicial body? As an aside, Newsom was right to be utterly outraged. And his unfortunate reaction to press on it is a natural escalation in our cold civil war. No matter what SCOTUS seemingly has invited dozens of laws and a burgeoning anti-federal frenzy that might turn the United States into an even more ungovernable legal wasteland with regionalized pockets of law across this nation. It'll be bad for stability, human rights, business, and more.

malchior wrote: ↑Mon Dec 13, 2021 8:57 pm The Atlantic

@ElGuapo - this addresses the question you asked earlier

So far, so good for abortion providers. But look a little harder, and today’s ruling seems like less of a victory for abortion rights—or, for that matter, for those concerned about state efforts to nullify other constitutional rights. First, the Court did not allow providers to sue anyone other than the state licensing officials—including the attorney general or the state clerks who docket cases. Taking suits against clerks off the table will make it hard to block every S.B. 8 suit from going forward. Providers will be in and out of court—and will have to rely on state cases. A clean solution that would end S.B. 8 once and for all may not be possible.

What I was describing as legal chaos and the court's radical nature is covered here. And we have to keep in mind this is one issue. They've staked out some really radical positions that could make the United States ungovernable. Combine this pressure with the larger democratic issues and I can't have anything but a pessimistic outlook at the moment.

Today’s decision is a win not for abortion providers but for constitutional chaos. It will encourage states, conservative and progressive alike, to see how much they can bypass judicial interpretation of constitutional rights. The decision will lead some to think that abortion rights will be restored in Texas while the Court plans to hold that those rights never existed in the first place.

During the Dobbs argument, the Court gave a clear impression of being indifferent to the political consequences of its actions. This conservative majority looks ready to transform the Constitution and its interpretation in radical, perhaps unpopular ways, the consequences be damned.

Today’s decision only reinforced that impression. Allowing states to perfect the S.B. 8 model will encourage constitutional anarchy. The same might be true of reversing Roe, but the Court’s conservatives don’t seem to mind.

Drazzil wrote: ↑Mon Dec 13, 2021 9:26 pmOkay. So here is a question that might not have been broached here: Why is the SC so bound and determined to invite challenge to their legitimacy?

Little Raven wrote: ↑Mon Dec 13, 2021 9:45 pm

Drazzil wrote: ↑Mon Dec 13, 2021 9:26 pmOkay. So here is a question that might not have been broached here: Why is the SC so bound and determined to invite challenge to their legitimacy?

The legitimacy of the Court has survived Dred Scot and Buck vs. Bell. It muddled through Korematsu and Plessy vs Ferguson, Lochner vs New York and Hammer vs Dagenhart.

The Venn Diagram of "people who think the legitimacy of the Court is in danger" and "people who know very little about the history of the Court" is almost a perfect circle.

Little Raven wrote: ↑Mon Dec 13, 2021 9:45 pm

Drazzil wrote: ↑Mon Dec 13, 2021 9:26 pmOkay. So here is a question that might not have been broached here: Why is the SC so bound and determined to invite challenge to their legitimacy?

The legitimacy of the Court has survived Dred Scot and Buck vs. Bell. It muddled through Korematsu and Plessy vs Ferguson, Lochner vs New York and Hammer vs Dagenhart.

The Venn Diagram of "people who think the legitimacy of the Court is in danger" and "people who know very little about the history of the Court" is almost a perfect circle.

geezer wrote: ↑Mon Dec 13, 2021 9:50 pmA radically textual or originalist court is going to undo decades of social progress, and for what?

Holman wrote: ↑Mon Dec 13, 2021 9:56 pm If an authoritarian party achieves power and legislates itself into perpetuity, courts at every level become nothing but punditry.

Drazzil wrote: ↑Mon Dec 13, 2021 9:49 pmAny of those opinions endanger the running of a country in the way that the SC has in the years since BvG?

Little Raven wrote: ↑Mon Dec 13, 2021 10:03 pm

Drazzil wrote: ↑Mon Dec 13, 2021 9:49 pmAny of those opinions endanger the running of a country in the way that the SC has in the years since BvG?

That's an...interesting question, and the answer is going to turn heavily on how you think a country should be run.

Little Raven wrote: ↑Mon Dec 13, 2021 10:01 pm

geezer wrote: ↑Mon Dec 13, 2021 9:50 pmA radically textual or originalist court is going to undo decades of social progress, and for what?

If that's your standard, then the Court hasn't had any legitimacy since 1883, when it struck down the Civil Rights Act of 1875. And there's Bowers vs Hardwick, back in 86.

The SC has made plenty of truly awful rulings in the last 250 years. Way, WAY worse than anything this Court has even suggested. If a Court becomes illegitimate once it issues a terrible ruling, that ship sailed a long, LONG time ago.

Little Raven wrote:

Drazzil wrote: ↑Mon Dec 13, 2021 9:26 pmOkay. So here is a question that might not have been broached here: Why is the SC so bound and determined to invite challenge to their legitimacy?

The legitimacy of the Court has survived Dred Scot and Buck vs. Bell. It muddled through Korematsu and Plessy vs Ferguson, Lochner vs New York and Hammer vs Dagenhart.

In the Venn Diagram of "people who think the legitimacy of the Court is in danger" and "people who know very little about the history of the Court," the former is almost entirely contained within the latter.

geezer wrote: ↑Mon Dec 13, 2021 11:00 pmIt’s a combination of multiple terrible rulings in service of a retrograde philosophy that together have the cumulative effect of disregarding 50 years of progress.

I might also add that in the cases you cited, the court was affirming things that at the time would not have run grossly counter to the prevailing public opinion.

Little Raven wrote: ↑Mon Dec 13, 2021 11:49 pm

geezer wrote: ↑Mon Dec 13, 2021 11:00 pmIt’s a combination of multiple terrible rulings in service of a retrograde philosophy that together have the cumulative effect of disregarding 50 years of progress.

Sure, but like I've been trying to stress, this isn't the first time the Court has done that. Hell, it has done much, MUCH worse in the past.

I'm not saying that you should or should not "consider the Court legitimate"...whatever that means to you. I assure you, a great many people have in the past considered the Court wholly illegitimate, and for excellent cause. If you choose to join them, you'll be in very good company - some of the most vocal critics have been Presidents.

I might also add that in the cases you cited, the court was affirming things that at the time would not have run grossly counter to the prevailing public opinion.

It might surprise you to learn that lots of people in 1918 thought children UNDER 14 laboring in factories was an abomination that no sane court could ever sanction. Lots of people in 1927 kinda had a problem with sterilizing people against their will. In fact, as a general rule, cases where prevailing public opinion leans overwhelmingly to one side don't make it to the Supreme Court at all - those issues get settled by lower courts and the 9 decline to take the case. The Supreme Court is where the really thorny issues get threshed out, and there's almost always lots of people who are unhappy with whatever it is they end up saying.

Drazzil wrote: ↑Tue Dec 14, 2021 2:27 amIn the last two decades the SC has curtailed powers and checks and balances in government and law that were bought and paid for in blood, it's stupid to think that things won't return to that unless something fundamentally changes.

Little Raven wrote: ↑Tue Dec 14, 2021 3:02 amWhat we got, ain't nothing new. This country's hard on people.

Little Raven wrote: ↑Mon Dec 13, 2021 11:49 pm

geezer wrote: ↑Mon Dec 13, 2021 11:00 pmIt’s a combination of multiple terrible rulings in service of a retrograde philosophy that together have the cumulative effect of disregarding 50 years of progress.

Sure, but like I've been trying to stress, this isn't the first time the Court has done that. Hell, it has done much, MUCH worse in the past.

I'm not saying that you should or should not "consider the Court legitimate"...whatever that means to you. I assure you, a great many people have in the past considered the Court wholly illegitimate, and for excellent cause. If you choose to join them, you'll be in very good company - some of the most vocal critics have been Presidents.

I might also add that in the cases you cited, the court was affirming things that at the time would not have run grossly counter to the prevailing public opinion.

It might surprise you to learn that lots of people in 1918 thought children UNDER 14 laboring in factories was an abomination that no sane court could ever sanction. Lots of people in 1927 kinda had a problem with sterilizing people against their will. In fact, as a general rule, cases where prevailing public opinion leans overwhelmingly to one side don't make it to the Supreme Court at all - those issues get settled by lower courts and the 9 decline to take the case. The Supreme Court is where the really thorny issues get threshed out, and there's almost always lots of people who are unhappy with whatever it is they end up saying.

So far, some 59 Supreme Court cases expressly overruled prior decisions on constitutional grounds by votes of 5-4 or 6-3, the kind of narrow split that is most likely in the Dobbs case. Of those 59, only a handful arguably fall in the category of restricting—versus expanding—individual rights. None involved the kind of wholesale gutting of a recognized right of the kind that’s at stake in Dobbs. So any suggestion that overturning Roe would amount to a relatively commonplace move by the court is simply not borne out by the facts and is an evasive misreading of court history...

To be sure, conservative critics would argue that the right to abortion was built on a fiction in the first place, as nothing in the Constitution explicitly protects the right to privacy, let alone the right to terminate a pregnancy. But that argument falls apart when one considers that justices have identified so-called unenumerated rights within the 14th Amendment’s due process clause on a number of occasions, using them to block the government’s ability to dictate individual choices about marriage partners, intimate sexual contact, contraception and the rearing and education of one’s children.

Over the years, conservative legal scholars have derided Lochner because, like Roe many years later, it recognized a right that is not expressly listed in the Constitution’s text.

geezer wrote: ↑Tue Dec 14, 2021 2:19 pmI'm genuinely curious as to why you (LR) don't think these other "unenumerated," socially progressive rights are in danger, or if you do, why you think that's not a problem of grave consequence.

Little Raven wrote: ↑Tue Dec 14, 2021 9:06 pm But it's a problem that we, as a nation, have a lot of practice dealing with, because the Supreme Court has done just that MANY times in the past. I'm not saying that this Court doesn't pose a danger to, say, Roe vs Wade. I'm not saying it will be a good thing if Roe vs Wade goes down. What I'm saying is that this Court is not some kind of historical anomaly that poses a unique danger to our Republic. Past Courts have done everything you fear this Court will do - heck, past Courts have gone much farther than I suspect this Court is ever likely to go...and yet we muddle on.

Holman wrote: ↑Tue Dec 14, 2021 9:09 pmIs there a time when the Supreme Court looked at a right that had belonged to American citizens for 50 years and just took it away?

Because that's what we're looking at.

Little Raven wrote: ↑Tue Dec 14, 2021 10:09 pm

Holman wrote: ↑Tue Dec 14, 2021 9:09 pmIs there a time when the Supreme Court looked at a right that had belonged to American citizens for 50 years and just took it away?

Uh, Dred Scott comes to mind. Remember, since the founding of the Republic, it had been understood that slavery only held sway SOUTH of the Mason-Dixon line. Black men and women may have only counted as 3/5 of a person in Georgia, but in the North, they were free and complete citizens.

Until 1857, when the Supreme Court said "Nope! Doesn't matter where you were born, where you live, how you got there....if you're black, you're not a citizen! Hugs!"

Little Raven wrote: ↑Tue Dec 14, 2021 10:09 pm

Holman wrote: ↑Tue Dec 14, 2021 9:09 pmIs there a time when the Supreme Court looked at a right that had belonged to American citizens for 50 years and just took it away?

Uh, Dred Scott comes to mind. Remember, since the founding of the Republic, it had been understood that slavery only held sway SOUTH of the Mason-Dixon line. Black men and women may have only counted as 3/5 of a person in Georgia, but in the North, they were free and complete citizens.

Until 1857, when the Supreme Court said "Nope! Doesn't matter where you were born, where you live, how you got there....if you're black, you're not a citizen! Hugs!"

Needless to say....that did not go well. 10 years later, almost a million American were dead as a result of...clarifying...that decision.

Because that's what we're looking at.

No, we're not. Even if Roe goes down, abortion doesn't become illegal. It just reverts to the states. Most of the people in this country will honestly never know the difference, because if you live in a blue state, absolutely nothing will change, and if you live in a red state, odds are your legislature has already made abortion practically impossible.

Carpet_pissr wrote: ↑Wed Dec 15, 2021 12:53 am I should add my own position since I felt I could lay out LR’s, that’s only fair I think.

But before that, I want to say that I’m sincerely glad to hear a vocal, reasoned dissenting voice in R&P (there are others, but picking on LR for now). I disagree with Malchior’s assessment that your argument is unserious FWIW. I don’t agree with it, but it seems to come from a sincere belief with thought behind it as opposed to…what, Malchior, trolling? I could be wrong on that, but don’t think so.

I think what’s causing some friction is your seeming nonchalance in the face of what many on the board perceive to be a three alarm emergency.

Personally, I’m obviously closer to Malchior’s ‘the leopards are eating our faces RIGHT NOW’ than your “psshhht…this is TOTALLY fine, we’ve seen and survived worse”.

I think we’re past the point of any one entity or person (including voters) being able to reverse or counter the decades-long strategy of the Republicans which we are seeing come to fruition on multiple fronts right now.

I think the next several (baby) steps we take towards authoritarianism will lose us the Republic as we know it, which sounds corny and hard to qualify now that I see it in writing.

Little Raven wrote: ↑Wed Dec 15, 2021 1:36 amBut even if that's true, it's not the end. It's not even the beginning of the end. Right now, many of the deeply serious people on this forum appear to sincerely believe that if American democracy isn't ALREADY dead then it only has a few years left. At best, this betrays a deep ignorance as to our nation's history. At worst, it is a call to despair, and a betrayal of the millions of Americans who gave their lives to secure the prosperity we now enjoy. Either way, it must be resisted.

geezer wrote: ↑Tue Dec 14, 2021 11:20 pmUh.. this doesn’t really support your position that we’ve been here before and it was no big deal :/

Little Raven wrote: ↑Wed Dec 15, 2021 2:11 am

geezer wrote: ↑Tue Dec 14, 2021 11:20 pmUh.. this doesn’t really support your position that we’ve been here before and it was no big deal :/

I certainly hope you're not equating "the legality of abortion shall be returned to the states" with "black people are inherently unqualified for citizenship."

Little Raven wrote: ↑Wed Dec 15, 2021 2:11 am

geezer wrote: ↑Tue Dec 14, 2021 11:20 pmUh.. this doesn’t really support your position that we’ve been here before and it was no big deal :/

I certainly hope you're not equating "the legality of abortion shall be returned to the states" with "black people are inherently unqualified for citizenship."

Little Raven wrote: ↑Wed Dec 15, 2021 10:22 am Sure, but not every irresolvable issue rises to the significance of Dred Scot. Americans will probably never agree on whether New York or Chicago has the right to claim the title of "Best Pizza in America," but we probably don't need to slaughter 3% of the population in order to hash it out.

stessier wrote: ↑Wed Dec 15, 2021 10:37 amYou frame it as "the legality of abortion shall be returned to the states" when it should be properly framed as "bodily autonomy and the ability to make medical decisions" which is not something that should vary state to state - just like whether any humans are unqualified for citizenship.

Little Raven wrote: ↑Wed Dec 15, 2021 10:44 am

stessier wrote: ↑Wed Dec 15, 2021 10:37 amYou frame it as "the legality of abortion shall be returned to the states" when it should be properly framed as "bodily autonomy and the ability to make medical decisions" which is not something that should vary state to state - just like whether any humans are unqualified for citizenship.

You may believe that and I may believe that, but a whole lot of women in Alabama clearly don't believe that. It's not like state legislatures are being at all subtle about what they plan do if Roe vs Wade goes down. They constantly scream it from every rooftop, and people vote for them over and over and over again.

And yes, some people really do find this cause compelling enough to kill and die for, but I don't know that I'm one of them.