Law Justice Kennedy Retires!!! New SCOTUS justice to be announced 9PM Monday, July 9th

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Post-Lochner, a reverse of Wickard could/would invalidate innumerable federal laws centered around current ICC interpretation. It would be one of the biggest changes in US jurisprudence in a century, for sure.

Good. We must be willing to overrule bad precedent.

Even if you agree with his reasoning (I agree its sound if you NEVER stray from originalist textualism),
I think my last post should make clear that I don't agree with you here.

[W]ould you admit that it was clearly a ruling based on the sole theory of judicial interpretation shared by a majority of current SCOTUS Justices (assuming Trump appoints a Thomas clone
No. Taney's approach in Scott v Sandford (sic) is similar to that of Ginsburg and Sotomayor across multiple cases. These Justices carry out unjustifiable usurpation of legislative authority, seemingly with the aim of achieving personally desired policy outcomes.
 
Michael Moore completely loses it over the SCOTUS situation:



He says the Left should deliberately abandon critical thinking skills in favor of "magical thinking" in order to generate unity. Really amazing to watch.
 
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It looks like Trump might go the affirmative action route for his SCOTUS pick. The media is reporting that Amy Barrett is on his shortlist. That's too bad. She's much less qualified than almost everyone from the 25-person list.
 
He's a Republican nominated by Reagan. I wouldn't think that nominating another conservative, assuming he or she is an honest and capable judge, would effect the court's current leanings.

Yes, it could. Kennedy was the keystone vote in Obergefell, for example. He has far more sympathy and commitment to the gay rights movement than many other conservative judges. He’s also the judge that has kept abortion issues at bay. Absent Kennedy, we can expect a more conservative court on those issues.
 
Let's be serious here, none of us want abortion to be illegal.

I do. But overturning Roe vs Wade wouldn’t have that impact.

Which is a good thing. People need to be careful what they wish for if they are hoping some ultra conservative judges take over the Supreme Court. We should have a court that fairly accurately represents our country.

I mean, who here would be super psyched for abortion rights to be revoked? Is that really a thing people want?

Yes.

hi PolishHeadlock,

if a conservative court overturns Roe vs Wade, i remain convinced it will be a glorious day for the Democratic Party.

just an amazing gift.

banning abortion would be like banning gay marriage. i mean, as it turns out, many republican men like the penis. and bashing of same sex relationships got alot less fun when the VPOTUS had a daughter who was a lesbian. such is life.

i am absolutely positive that conservative women get abortions when the need strikes them...and they'll be exposed, count on it...and then the equivocating will happen on the right. such is life.

this will merely splinter the GOP and rouse complacent Democrats.

that's why it won't happen. its been lip service, all along.

- IGIT

Abortion wouldn’t be banned. Overturning Roe vs Wade would make abortion a state issue.

I don’t know how Americans would react if it were overturned. Abortion will still be provided by a significant majority of states, however.
 
Absent Kennedy, we can expect a more conservative court on those issues.

Let's not accept the common MSM characterization of judges as "conservatives" or "liberals". In my view "textualist-originalists" vs. "living constitutionalists" is much closer to the mark.

This is not only a matter of nomenclature. We can easily imagine a right-wing living constitutionalist (see some of Scalia's opinions on executive power, for example) or a left-wing originalist (see Thomas's dissent in Gonzales v. Raich or Gorsuch in the recent sports gambling decision).

The key distinction will forever be between those who faithfully interpret the Constitution vs. those who stretch the Constitution to reach their preferred outcome. By this measure, Gorsuch and Thomas are excellent. Sotomayor is abominable. For others, your mileage may vary.
 
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Let's not accept the common MSM characterization of judges as "conservatives" or "liberals". In my view "originalists" vs. "living constitutionalists" is much closer to the mark.

This is not only a matter of nomenclature. We can easily imagine a right-wing living constitutionalist (see some of Scalia's opinions on executive power, for example) or a left-wing originalist (see Thomas's dissent in Gonzales v. Raich or Gorsuch in the recent sports gambling decision).

The key distinction will forever be between those who faithfully interpret the Constitution vs. those who stretch the Constitution to reach their preferred outcome. By this measure, Gorsuch and Thomas are excellent. Sotomayor is abominable. For others, your mileage may vary.


A living constitutionalist still requires selection in value and direction, particularly when choosing between viable decisions. These decisions could be characterized as conservative, liberal or something else entirely. What makes these judges liberal is that their value and direction is more or less toward consistently liberal decisions - that is, they more or less consistently reach liberal outcomes.
 
Abortion wouldn’t be banned. Overturning Roe vs Wade would make abortion a state issue.

I don’t know how Americans would react if it were overturned. Abortion will still be provided by a significant majority of states, however.

hi Super Mikey,

i didn't say that abortion would become outlawed at the Federal level.

yes, the decision would revert to the states...but the dialogue leading up to such a ruling would occur on a national level. the awareness that women would lose control over what occurs inside their bodies would also coalesce at a national level.

in the end, i'm pretty certain a great majority of women while chafe at the yoke of government telling how they conduct their health matters and end up rallying for freedom.

this issue may be pertinent to the evangelical right, but its a loser out there in election land.

- IGIT
 
hi Super Mikey,

i didn't say that abortion would become outlawed at the Federal level.

yes, the decision would revert to the states...but the dialogue leading up to such a ruling would occur on a national level. the awareness that women would lose control over what occurs inside their bodies would also coalesce at a national level.

in the end, i'm pretty certain a great majority of women while chafe at the yoke of government telling how they conduct their health matters and end up rallying for freedom.

this issue may be pertinent to the evangelical right, but its a loser out there in election land.

- IGIT

“Health matters”. what a clever euphemism to erase the fetus from notice and make what we are actually talking about (abortion) sound innocuous. Have you been reading Orwell?
 
It's so much more than abortion that I really don't care which way Roe v Wade goes.

I suspect it will be left intact, and I know that there will be legal, safe abortions (not my issue, but...) available to any woman in this country.

Let's get to Monday and meet our new SCOTUS justice.
 
“Health matters”. what a clever euphemism to erase the fetus from notice and make what we are actually talking about (abortion) sound innocuous. Have you been reading Orwell?

hello Super Mikey,

if she wants to erase her fetus, so be it.

i'm pro-choice, so your literal description of the procedure doesn't really move me.

- IGIT
 
hello Super Mikey,

if she wants to erase her fetus, so be it.

i'm pro-choice, so your literal description of the procedure doesn't really move me.

- IGIT

I don’t think you understood the criticism. Your choice of wording erased the fetus from mention as if we were talking about something so innocuous as health. It’s a rhetorical technique. You’re being manipulative.
 
I don’t think you understood the criticism. Your choice of wording erased the fetus from mention as if we were talking about something so innocuous as health. It’s a rhetorical technique. You’re being manipulative.

hello Super Mikey,

its a health related matter, Super Mikey.

i don't think this is too hard to understand.

the procedure in question is a woman's right to choose to erase her fetus - the actual medical description is the word, "abortion".

if describing the procedure as the erasure of a fetus energizes you in some way, have at it my friend. most thinking adults grasp what the process entails.

i am not moved.

- IGIT
 
hello and nice to meet you, waiguoren,
Hello IGIT. Nice to meet you.

i don't know what Justice Thomas thinks about marijuana use. he was more of an alcoholic, if i remember correctly.

I suppose you are referencing the claims of Thomas's ex-girlfriend Lillian McEwen, who criticized Thomas on the grounds that, upon quitting alcohol, Thomas became "angry, short-tempered, asexual" and started doing "weird things" such as taking long runs in the dark before dawn. Thomas broke off the relationship with McEwen around the time she claims he went sober.

At the time McEwen went public with her claims (2010, decades after the alleged events occurred), she was seeking a publisher for her own memoir. Her credibility is worth questioning. But by all means, continue casting weakly founded aspersions.

the justices you favor seek to imagine what the framers meant, when they scribed the constitution.

Not exactly. The first step is to read the text. If the text is clear, the analysis ends. For example, the Seventh Amendment guarantees the right to a jury trial in lawsuits for which the value in question exceeds $20. In this case we do not, as you wrote, "seek to imagine what the framers meant". We simply read the text and follow it.

In the event that words could have multiple interpretations, we rarely need to "imagine what the framers meant." Imagination is scarcely needed to those who have made a study of the Federalist Papers, the Philadelphia convention, the ratifying conventions, the Articles of Confederation and English common law. In most cases, the framers were exceedingly clear in their intentions.

it involves a bit of guesswork, of course - since the worldview of the framers (for example, when it comes to women's rights or minority rights) would be considered barbaric in 2018.

First, this appears to be a non sequitur. Whether the worldview of the framers was barbaric has no bearing on whether guesswork should be involved in interpretation. To wit, one can easily imagine a barbaric document that is nevertheless exceedingly clear in its wording.

Second, it is a gross generalization on your part to claim that the worldview of the framers would be "considered barbaric in 2018". If you are referring to the slavery issue, you should be aware that all of the most important framers (Madison, Adams, Washington, Jefferson, Wilson, Jay, Hamilton, Paine) have been shown to be uncomfortable with slavery, and many of them (Jay, Wilson, Adams, Paine) were outright abolitionists.

Third and most importantly, the worldview of the framers is not relevant to our conversation. The job of a judge or Supreme Court justice is to faithfully interpret the law as it was written, not to probe the worldview of these men. That is a job for historians.

Meaning cannot be added to the Constitution but through the amendment process. When the Court determined in 1973 that the 14th Amendment contained an implicit "right to abortion", it was not faithfully interpreting the text of the Constitution. Instead, it imposed its view of morality on the citizens of the majority of states, who had decided through the legislative process that abortion should be illegal except when the health of the mother would be adversely affected by carrying the baby to term.


A good test for you: in your view, is capital punishment unconstitutional under the 8th Amendment's prohibition of "cruel and unusual punishment"?


they're both basically trying to do the same thing, walguoren.

No, IGIT, that is not true. One side seeks to interpret the text with deference to the text's authors in cases of ambiguity. The other side does the same except when it does not like the outcome, in which case new meanings are attributed to old words.
 
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Wow. Didn't think Schumer would stoop to this level.

Seriously? After they stole a Supreme Court nomination form Obama? That's a ridiculous thing to say. After the unprecedented obstructionism of the Republican congress from 2011 until 2017? You have to be fucking joking.

You missed the point. Schumer mischaracterized McConnell for political gain.

McConnell's cited reason for delaying the Senate hearings on Garland was the "Biden rule": in a presidential election year, the Senate should wait until after the election before holding a hearing on the president's Supreme Court nominee. Schumer knows that the Biden rule referred to presidential elections only, but he's banking on his constituency being too ignorant or hyperpartisan to care.
 
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