Abortion Argument Within (f/k/a Biden to propose SCOTUS reform)

[CallMeTyler]

Again just because it made decisions you disagree with doesn’t mean it’s broken and corrupt

This is corruption. If you believe otherwise, explain why.

Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition.

Crow paid for private school for a relative Thomas said he was raising “as a son.” “This is way outside the norm,” said a former White House ethics lawyer.

www.propublica.org

Clarence Thomas Secretly Accepted Luxury Trips From Major GOP Donor

Island-hopping on a superyacht. Private jet rides around the world. The undisclosed gifts to Thomas have no known precedent in the modern history of the Supreme Court. “It’s incomprehensible to me that someone would do this,” says one former judge.

www.propublica.org

Harlan Crow Bought Property from Clarence Thomas. The Justice Didn’t Disclose the Deal.

The transaction is the first known instance of money flowing from Crow to the Supreme Court justice. The sale netted the GOP megadonor two vacant lots and the house where Thomas’ mother was living.

www.propublica.org

 

[ENCHeel]

This is corruption. If you believe otherwise, explain why.

Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition.

Crow paid for private school for a relative Thomas said he was raising “as a son.” “This is way outside the norm,” said a former White House ethics lawyer.

www.propublica.org

Clarence Thomas Secretly Accepted Luxury Trips From Major GOP Donor

Island-hopping on a superyacht. Private jet rides around the world. The undisclosed gifts to Thomas have no known precedent in the modern history of the Supreme Court. “It’s incomprehensible to me that someone would do this,” says one former judge.

www.propublica.org

Harlan Crow Bought Property from Clarence Thomas. The Justice Didn’t Disclose the Deal.

The transaction is the first known instance of money flowing from Crow to the Supreme Court justice. The sale netted the GOP megadonor two vacant lots and the house where Thomas’ mother was living.

www.propublica.org

Selling property and taking trips is corruption? Were those people involved in cases before the court? It’s a major reach to call that corruption unless this man was tied to a case and Thomas ruled in his favor. Maybe he should’ve disclosed the gifts, but that’s not corruption. Corruption would be “you pay my son’s tuition and you win the case.” The federal judge cited is comical equating this to his lawyer friends buying his lunch. Of course you won’t let your LAWYER friends by you lunch - you have cases with them.
I’m sure it wouldn’t corruption if RBG had done the same thing - the left only accuses people of corruption when those people aren’t doing what the left wants. It’s pretty remarkable.

 

[CallMeTyler]

Selling property and taking trips is corruption? Were those people involved in cases before the court? It’s a major reach to call that corruption unless this man was tied to a case and Thomas ruled in his favor. Maybe he should’ve disclosed the gifts, but that’s not corruption. Corruption would be “you pay my son’s tuition and you win the case.” The federal judge cited is comical equating this to his lawyer friends buying his lunch. Of course you won’t let your LAWYER friends by you lunch - you have cases with them.
I’m sure it wouldn’t corruption if RBG had done the same thing - the left only accuses people of corruption when those people aren’t doing what the left wants. It’s pretty remarkable.

I figured you for a fool, but now you're just a lying fool.

 

[ENCHeel]

I figured you for a fool, but now you're just a lying fool.

Of course, your point is disputed and you resort to name calling. You’ve done that several times. Unless Crow was set to benefit from a case which Thomas was hearing, it’s not corruption. Could be something else? Sure. But it’s not corruption. Again, as you are most certainly aware but will never admit, if RBG or another left leaning Justice did the same thing (they probably do) it wouldn’t be corruption. It would be a mistake that won’t happen again.
This is your method of argument:
You make a point.
I refute it.
You have no rebuttal.
You name call.
That’s the game plan of the left and it shows you are an intellectual midget, insecure, or both.

 

[superrific]

Scotus made some decisions you and I disagree with, but people still listen to the decisions and people still want to appeal their cases before the court. Its working pretty much as designed.

But Biden's proposal is theater because its not happening. Joe can start the conversation to drive change but he is really raising the issue to get people to vote for the Democratic ticket. Its basically a campaign promise that will never happen.

The problem is not that SCOTUS made some decisions that we disagree with. The problem is that it isn't acting like a court. Let me explain:

1. Our system of jurisprudence is designed to emphasize continuity with the past. It's really the only reasonable way to run our judicial system, because one of the most important values of "rule of law" is predictability. Let's say that you're negotiating a contract, and the other side proposes that you have to use "reasonable best efforts" to get something done (e.g. antitrust clearance). If the term "reasonable best efforts" hasn't been defined, then you're taking the risk that it means what you think it will mean. But if it has been defined, then you should be able to rely on that definition. You commit to X and Y but not Z, as implied by that term. If a court comes along three years later and says, "nah, we want reasonable best efforts also to mean Z" then that court just imposed a duty on you that you didn't agree to perform. You got screwed, and you weren't even a party to the case. You didn't get to hire lawyers to argue the point. It just happened.

This court has been the most radically discontinuous court I've ever seen. It's not only the number of precedents they overturn. It's the type of precedent and the grounds for overturning it. It's also the cases where they don't overturn anything, but rather just ignore what has been happening for decades in favor of a novel position they just cooked up (or was just cooked up for it). It's also the cases that were so easy that nobody had ever brought the case to the Supreme Court until now, and so there's no case to overturn exactly -- just hundreds of years of precedent.

This is not judicial behavior. It's activism. I will give you some examples in a bit.

2. This court can't even respect its own decisions. What has happened in multiple cases was the Court decided a case, and then there was a change in personnel, and it then immediately revisited the case and reversed itself. Why? Was there any legal infirmity in the original decision? No. It's just that the composition of the court changed. Again, this is not judicial behavior; it's just politics. It's a court acting like a legislature -- oh, we have more of a majority now, so it's time to get to work.

An example of this was Whole Women's Health v Hellerstedt. In 2016, the Court decided that certain statutory requirements on abortion providers from Texas burdened the abortion rights of women, and struck down those provisions. It was a 5-4 vote. The 4 lost. Roberts was one of the four. To his credit, he later relied on that case to strike down similar regulations in LA, saying in essence, "well, I dissented; I lost that battle; now I have to apply the law." But the other losers did not accept their loss. Once they had the chance, they overturned the abortion right entirely. What had changed between 2016 and 2022? Nothing in the world. Only the members of the Supreme Court. And it didn't take the court even two years from RCB's death to kill Roe.

This is not the behavior of a court of law. This is the behavior of individuals who see themselves as ultra-powerful political actors not answerable to the voters. Well, we have to make them answer to us. The Founders did not envision a Supreme Court that sits above the law and hands down edicts like the Iranian council of clerics.

3. There are times in which precedents need to be overturned. But the test for overturning precedent - ignored by the current SCOTUS majority -- recognizes the issue of continuity. Thus, among the factors to be considered are 1) reliance interests (i.e. is anyone relying on the precedent to undergird their actions) and 2) workability of the current system.

Here's an example: the Roberts overturned an antitrust case from a hundred years ago that outlawed vertical price fixing. Vertical price fixing is when a manufacturer of a product tells the retailer how much it can charge for the product, and the retailer does so. The idea that the arrangement was problematic was wrong from the beginning, but that's not enough reason to overturn. The reason it was overturned was that it had become a weird footnote. Companies had figured out a way around it -- namely, stamping on the package something like "recommended sale price of 99 cents." The retailer could charge 1.99 for it, but charging 1.99 for something that advertises itself as 99 cents is a great way to alienate customers. Generally speaking, the retailers followed the recommendation. So by the 21st century, the vertical price-fixing rule was a footnote. It didn't affect behavior. Formally overturning it raised no eyebrows -- indeed, I don't even remember what year the court did that.

Overturning Korematsu was also a no-brainer (Roberts court did that also). It had long been considered terrible law, a wartime mistake of a court that, like most Americans, had been caught up in the fever that often accompanies huge wars sparked by unprovoked attacks. So when Korematsu was overturned, it had no defenders. Nobody was relying on it. Nobody thought it was acceptable.

Not all overturns have to be that cut-and-dried, but they should share some features with those cases. This Court's overturns generally do not. Instead, this Court has overturned precedents on which millions of people relied daily, on which there is far from a settled consensus that the original decision was even wrong or outdated. Think of Dobbs. Millions of American relied on abortion access. They moved to states with anti-abortion laws knowing that the laws couldn't be enforced. They set up abortion clinics, or became abortion doctors. Women relied on the quality health care that was provided by places like Planned Parenthood. The compromise solution of Roe was working perfectly well. It wasn't impossible to administer. In fact, it was super easy. There was no reason to overturn it. It wasn't like overturning Korematsu at all.

That is why the court has to be reformed. It isn't a court any more, not in the hands of these rabid partisans.

 

[RockyMtnHoo]

Of course, your point is disputed and you resort to name calling. You’ve done that several times. Unless Crow was set to benefit from a case which Thomas was hearing, it’s not corruption. Could be something else? Sure. But it’s not corruption. Again, as you are most certainly aware but will never admit, if RBG or another left leaning Justice did the same thing (they probably do) it wouldn’t be corruption. It would be a mistake that won’t happen again.
This is your method of argument:
You make a point.
I refute it.
You have no rebuttal.
You name call.
That’s the game plan of the left and it shows you are an intellectual midget, insecure, or both.

This wasn’t a one time oops, and whether you define it as “corruption” or some other label, government officials like Thomas have to provide financial disclosure statements and disclose sizable gifts. Whether Thomas had a case in front of him that involved this gentleman or not doesn’t matter. You have to disclose that…you can’t just conveniently forget or play dumb.

If you’re sure one or more of the left leaning Justices have done the same, feel free to provide examples.

 

[ENCHeel]

I figured you for a fool, but now you're just a lying fool.

Of course, your point is disputed and you resort to name calling. You’ve done that several times. Unless Crow was set to benefit from a case which Thomas was hearing, it’s not corruption. Could be something else? Sure. But it’s not corruption. Again, as you are most certainly aware but will never admit, if RBG or another left leaning Justice did the same thing (they probably do) it wouldn’t be corruption. It would be a mistake

This wasn’t a one time oops, and whether you define it as “corruption” or some other label, government officials like Thomas have to provide financial disclosure statements and disclose sizable gifts. Whether Thomas had a case in front of him that involved this gentleman or not doesn’t matter. You have to disclose that…you can’t just conveniently forget or play dumb.

If you’re sure one or more of the left leaning Justices have done the same, feel free to provide examples.

right. His failure to report is sort of concerning, maybe. But it’s not corruption unless there was a case before him in which Crow was set to benefit from. It’s a mistake at best or a failure at worst. It’s not anywhere near corruption.

 

[Zoo_View]

The problem is not that SCOTUS made some decisions that we disagree with. The problem is that it isn't acting like a court. Let me explain:

1. Our system of jurisprudence is designed to emphasize continuity with the past. It's really the only reasonable way to run our judicial system, because one of the most important values of "rule of law" is predictability. Let's say that you're negotiating a contract, and the other side proposes that you have to use "reasonable best efforts" to get something done (e.g. antitrust clearance). If the term "reasonable best efforts" hasn't been defined, then you're taking the risk that it means what you think it will mean. But if it has been defined, then you should be able to rely on that definition. You commit to X and Y but not Z, as implied by that term. If a court comes along three years later and says, "nah, we want reasonable best efforts also to mean Z" then that court just imposed a duty on you that you didn't agree to perform. You got screwed, and you weren't even a party to the case. You didn't get to hire lawyers to argue the point. It just happened.

This court has been the most radically discontinuous court I've ever seen. It's not only the number of precedents they overturn. It's the type of precedent and the grounds for overturning it. It's also the cases where they don't overturn anything, but rather just ignore what has been happening for decades in favor of a novel position they just cooked up (or was just cooked up for it). It's also the cases that were so easy that nobody had ever brought the case to the Supreme Court until now, and so there's no case to overturn exactly -- just hundreds of years of precedent.

This is not judicial behavior. It's activism. I will give you some examples in a bit.

2. This court can't even respect its own decisions. What has happened in multiple cases was the Court decided a case, and then there was a change in personnel, and it then immediately revisited the case and reversed itself. Why? Was there any legal infirmity in the original decision? No. It's just that the composition of the court changed. Again, this is not judicial behavior; it's just politics. It's a court acting like a legislature -- oh, we have more of a majority now, so it's time to get to work.

An example of this was Whole Women's Health v Hellerstedt. In 2016, the Court decided that certain statutory requirements on abortion providers from Texas burdened the abortion rights of women, and struck down those provisions. It was a 5-4 vote. The 4 lost. Roberts was one of the four. To his credit, he later relied on that case to strike down similar regulations in LA, saying in essence, "well, I dissented; I lost that battle; now I have to apply the law." But the other losers did not accept their loss. Once they had the chance, they overturned the abortion right entirely. What had changed between 2016 and 2022? Nothing in the world. Only the members of the Supreme Court. And it didn't take the court even two years from RCB's death to kill Roe.

This is not the behavior of a court of law. This is the behavior of individuals who see themselves as ultra-powerful political actors not answerable to the voters. Well, we have to make them answer to us. The Founders did not envision a Supreme Court that sits above the law and hands down edicts like the Iranian council of clerics.

3. There are times in which precedents need to be overturned. But the test for overturning precedent - ignored by the current SCOTUS majority -- recognizes the issue of continuity. Thus, among the factors to be considered are 1) reliance interests (i.e. is anyone relying on the precedent to undergird their actions) and 2) workability of the current system.

Here's an example: the Roberts could overturned an antitrust case from a hundred years ago that outlawed vertical price fixing. Vertical price fixing is when a manufacturer of a product tells the retailer how much it can charge for the product, and the retailer does so. The idea that the arrangement was problematic was wrong from the beginning, but that's not enough reason to overturn. The reason it was overturned was that it had become a weird footnote. Companies had figured out a way around it -- namely, stamping on the package something like "recommended sale price of 99 cents." The retailer could charge 1.99 for it, but charging 1.99 for something that advertises itself as 99 cents is a great way to alienate customers. Generally speaking, the retailers followed the recommendation. So by the 21st century, the vertical price-fixing rule was a footnote. It didn't affect behavior. Formally overturning it raised no eyebrows -- indeed, I don't even remember what year the court did that.

Overturning Korematsu was also a no-brainer (Roberts court did that also). It had long been considered terrible law, a wartime mistake of a court that, like most Americans, had been caught up in the fever that often accompanies huge wars sparked by unprovoked attacks. So when Korematsu was overturned, it had no defenders. Nobody was relying on it. Nobody thought it was acceptable.

Not all overturns have to be that cut-and-dried, but they should share some features with those cases. This Court's overturns generally do not. Instead, this Court has overturned precedents on which millions of people relied daily, on which there is far from a settled consensus that the original decision was even wrong or outdated. Think of Dobbs. Millions of American relied on abortion access. They moved to states with anti-abortion laws knowing that the laws couldn't be enforced. They set up abortion clinics, or became abortion doctors. Women relied on the quality health care that was provided by places like Planned Parenthood. The compromise solution of Roe was working perfectly well. It wasn't impossible to administer. In fact, it was super easy. There was no reason to overturn it. It wasn't like overturning Korematsu at all.

That is why the court has to be reformed. It isn't a court any more, not in the hands of these rabid partisans.

Super just brought this thread back to a discussion of SCOTUS.

Let’s keep it limited to that.

I’ve been guilty of participating in the tangents this thread has gone into……let’s keep it limited to a discussion of SCOTUS and whether it should be reformed and how it should be.

 

[CallMeTyler]

The problem is not that SCOTUS made some decisions that we disagree with. The problem is that it isn't acting like a court. Let me explain:

1. Our system of jurisprudence is designed to emphasize continuity with the past. It's really the only reasonable way to run our judicial system, because one of the most important values of "rule of law" is predictability. Let's say that you're negotiating a contract, and the other side proposes that you have to use "reasonable best efforts" to get something done (e.g. antitrust clearance). If the term "reasonable best efforts" hasn't been defined, then you're taking the risk that it means what you think it will mean. But if it has been defined, then you should be able to rely on that definition. You commit to X and Y but not Z, as implied by that term. If a court comes along three years later and says, "nah, we want reasonable best efforts also to mean Z" then that court just imposed a duty on you that you didn't agree to perform. You got screwed, and you weren't even a party to the case. You didn't get to hire lawyers to argue the point. It just happened.

This court has been the most radically discontinuous court I've ever seen. It's not only the number of precedents they overturn. It's the type of precedent and the grounds for overturning it. It's also the cases where they don't overturn anything, but rather just ignore what has been happening for decades in favor of a novel position they just cooked up (or was just cooked up for it). It's also the cases that were so easy that nobody had ever brought the case to the Supreme Court until now, and so there's no case to overturn exactly -- just hundreds of years of precedent.

This is not judicial behavior. It's activism. I will give you some examples in a bit.

2. This court can't even respect its own decisions. What has happened in multiple cases was the Court decided a case, and then there was a change in personnel, and it then immediately revisited the case and reversed itself. Why? Was there any legal infirmity in the original decision? No. It's just that the composition of the court changed. Again, this is not judicial behavior; it's just politics. It's a court acting like a legislature -- oh, we have more of a majority now, so it's time to get to work.

An example of this was Whole Women's Health v Hellerstedt. In 2016, the Court decided that certain statutory requirements on abortion providers from Texas burdened the abortion rights of women, and struck down those provisions. It was a 5-4 vote. The 4 lost. Roberts was one of the four. To his credit, he later relied on that case to strike down similar regulations in LA, saying in essence, "well, I dissented; I lost that battle; now I have to apply the law." But the other losers did not accept their loss. Once they had the chance, they overturned the abortion right entirely. What had changed between 2016 and 2022? Nothing in the world. Only the members of the Supreme Court. And it didn't take the court even two years from RCB's death to kill Roe.

This is not the behavior of a court of law. This is the behavior of individuals who see themselves as ultra-powerful political actors not answerable to the voters. Well, we have to make them answer to us. The Founders did not envision a Supreme Court that sits above the law and hands down edicts like the Iranian council of clerics.

3. There are times in which precedents need to be overturned. But the test for overturning precedent - ignored by the current SCOTUS majority -- recognizes the issue of continuity. Thus, among the factors to be considered are 1) reliance interests (i.e. is anyone relying on the precedent to undergird their actions) and 2) workability of the current system.

Here's an example: the Roberts could overturned an antitrust case from a hundred years ago that outlawed vertical price fixing. Vertical price fixing is when a manufacturer of a product tells the retailer how much it can charge for the product, and the retailer does so. The idea that the arrangement was problematic was wrong from the beginning, but that's not enough reason to overturn. The reason it was overturned was that it had become a weird footnote. Companies had figured out a way around it -- namely, stamping on the package something like "recommended sale price of 99 cents." The retailer could charge 1.99 for it, but charging 1.99 for something that advertises itself as 99 cents is a great way to alienate customers. Generally speaking, the retailers followed the recommendation. So by the 21st century, the vertical price-fixing rule was a footnote. It didn't affect behavior. Formally overturning it raised no eyebrows -- indeed, I don't even remember what year the court did that.

Overturning Korematsu was also a no-brainer (Roberts court did that also). It had long been considered terrible law, a wartime mistake of a court that, like most Americans, had been caught up in the fever that often accompanies huge wars sparked by unprovoked attacks. So when Korematsu was overturned, it had no defenders. Nobody was relying on it. Nobody thought it was acceptable.

Not all overturns have to be that cut-and-dried, but they should share some features with those cases. This Court's overturns generally do not. Instead, this Court has overturned precedents on which millions of people relied daily, on which there is far from a settled consensus that the original decision was even wrong or outdated. Think of Dobbs. Millions of American relied on abortion access. They moved to states with anti-abortion laws knowing that the laws couldn't be enforced. They set up abortion clinics, or became abortion doctors. Women relied on the quality health care that was provided by places like Planned Parenthood. The compromise solution of Roe was working perfectly well. It wasn't impossible to administer. In fact, it was super easy. There was no reason to overturn it. It wasn't like overturning Korematsu at all.

That is why the court has to be reformed. It isn't a court any more, not in the hands of these rabid partisans.

This is an all-timer.

 

[RockyMtnHoo]

Despite having done these disclosures myself when I was government I don’t recall the penalties, but you can’t submit them and when you get caught providing a false document, go back and says “oops”. These were sizable gifts on multiple occasions that he didn’t report. It’s not a nothingburger.

 

[ENCHeel]

What if someone decided they wanted to have slaves again. Owned slaves, sued for their right to have slaves, and the court granted it. Then everyone started building business on slavery, relying on its availability, etc as you mention. I guess the court in this hypothetical would be tied to allowing slavery forever.
The point being, people see abortion as a horrific immorality that has no place in society, much like people viewed slavery. Many people view it as something that needs to be eliminated at all costs, much like slavery. Your exposition about the court is fine and all, but some topics go beyond that. Millions and millions of Americans do not want to live in a society where abortions are free and easy. Hell, even a decade ago most liberals wanted them to be available safe and rare. The rare part has gone out the window. So, I understand your point about precedent, but disagree with it because I think the Roe precedent was horrible. You disagree and that’s fine. I don’t really care.

 

[superrific]

To continue from my previous post, I'll give some more examples of the court not acting like a court.

1. In 1977, the Supreme Court decided a case called Abood. It said that Americans have a constitutional right not to be forced to join a labor union as a condition of public employment, but Americans didn't have a constitutional right to avoid paying for the services that the labor union provided to them. This is really not objectionable. Unions are required by law to represent all members of the bargaining unit, not just in negotiations for contracts but also for grievances brought by employees under the dispute resolution system.

As a result of Abood, thousands upon thousands of unions negotiated contracts with employers that relied on this principle. In exchange for the requirement that non-members pay their fair share of representation, the unions gave other concessions. Employees who took employment in jobs represented by unions expected everyone to pay their fair share. Maybe they actually joined the union on reliance on that; maybe they just took the job expecting no free riding. In any event, literally millions of people relied on the Abood holding.

It was not the easiest thing in the world to determine what expenses were part of "bargaining" and what expenses were part of the other stuff that unions do. But numerous Supreme Court cases clarified the issue and by the early 2000s, it was all settled. Except for a few edge cases, everybody know what a chargeable expense was; everyone who was employed in unionized jobs understood their rights and duties, and the system worked.

And then Alito came on board and decided this needed to be changed. So he got to work and within a decade, Abood had been overturned. Why? Because Alito and the others decided, out of the blue, that people have a constitutional right not to pay a fair share of services rendered to them. What type of constitutional right? A First Amendment right. An amendment about freedom of speech had been perverted into addressing an economic arrangement between employer and employees. Sure. When Janus was decided, suddenly thousands of union contracts were upended. They would have to be renegotiated. Nobody knew whether they would continue to be represented by unions, or whether the unions would fold because they were deprived of money. Chaos ensued. And why? Because Alito doesn't like unions.

This was not a judicial decision. It was pure politics. In a perfect world, Alito should have been impeached.

2. That case involved an actual overturn. In a case this term, the Court upended the law in accordance with its preferences without specifically saying that it was overturning the previous decision. It just ignored it.

That case was Jarkesy. It held that, when Congress makes some activity illegal and provides for civil remedies against those who violate that law, the civil remedy can only be adjudicated in a jury trial. Well, the Court already examined that exact issue in a case called Atlas Roofing, from 1977. It held that civil remedies can be imposed in courts located within agencies, if Congress so specifies. Congress passed statute after statute in reliance on that principle. In part, the goal was to unclog the court system, and thus in some cases the agencies enforcing the law don't even have authorization to proceed in court. For instance, the Mine Safety Act is enforced by the Mine Safety Administration. the MSA can only bring cases seeking civil remedies in the courts within the agency (which are, by the way, fair). Now, the Mine Safety Act cannot be enforced. Literally.

So the Supreme Court, in deciding a case about a hedge fund manager who wanted a jury trial after defrauding investors, nuked a whole bunch of other statutes. Including the Mine Safety Act. They said to coal miners, "hey, sorry about this, but you can no longer rely on the Mine Safety Act to ensure that your employers create safe working conditions. I mean, you chose your career based on the prospect that mine explosions were rare, and now they aren't going to be so rare, but you see, there was this hedge fund manager who was being forced to answer for his crimes and we didn't want that, so you probably should buy more life insurance. Or rely on your union to . . . oh, never mind"

That is not a court in action. It wasn't just the Mine Safety Act. Dozens of agencies are now unable to enforce the laws that Congress directed them to enforce. They have been using these civil courts since WWII. For 80 years, the country got by just fine with this practice. It was challenged 40 years ago. The Court dismissed the challenge and upheld the system. There was literally no problem to solve here. The system worked OK -- just not for hedge fund managers whose strategy to avoid liability was to use their ill-gotten gains to extend a trial as long as possible until the government runs out of resources. But the Court likes those people, I guess, so it blew up decades of law applied in thousands of industries.

Oh, and what was the basis for the Court's holding. Why, it was the 7th Amendment, which states "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Note the words "at common law." The charges brought against the hedge fund manager were not at common law. They were pursuant to a regulatory scheme legislated by Congress. And how did the majority deal with that? Well, they said it was kind of like a suit at common law.

This is not a question of disagreeing with the court's opinion. It's a question of whether the Justices are trying to operate as jurists or as mini-kings.

 

[ENCHeel]

To continue from my previous post, I'll give some more examples of the court not acting like a court.

1. In 1977, the Supreme Court decided a case called Abood. It said that Americans have a constitutional right not to be forced to join a labor union as a condition of public employment, but Americans didn't have a constitutional right to avoid paying for the services that the labor union provided to them. This is really not objectionable. Unions are required by law to represent all members of the bargaining unit, not just in negotiations for contracts but also for grievances brought by employees under the dispute resolution system.

As a result of Abood, thousands upon thousands of unions negotiated contracts with employers that relied on this principle. In exchange for the requirement that non-members pay their fair share of representation, the unions gave other concessions. Employees who took employment in jobs represented by unions expected everyone to pay their fair share. Maybe they actually joined the union on reliance on that; maybe they just took the job expecting no free riding. In any event, literally millions of people relied on the Abood holding.

It was not the easiest thing in the world to determine what expenses were part of "bargaining" and what expenses were part of the other stuff that unions do. But numerous Supreme Court cases clarified the issue and by the early 2000s, it was all settled. Except for a few edge cases, everybody know what a chargeable expense was; everyone who was employed in unionized jobs understood their rights and duties, and the system worked.

And then Alito came on board and decided this needed to be changed. So he got to work and within a decade, Abood had been overturned. Why? Because Alito and the others decided, out of the blue, that people have a constitutional right not to pay a fair share of services rendered to them. What type of constitutional right? A First Amendment right. An amendment about freedom of speech had been perverted into addressing an economic arrangement between employer and employees. Sure. When Janus was decided, suddenly thousands of union contracts were upended. They would have to be renegotiated. Nobody knew whether they would continue to be represented by unions, or whether the unions would fold because they were deprived of money. Chaos ensued. And why? Because Alito doesn't like unions.

This was not a judicial decision. It was pure politics. In a perfect world, Alito should have been impeached.

2. That case involved an actual overturn. In a case this term, the Court upended the law in accordance with its preferences without specifically saying that it was overturning the previous decision. It just ignored it.

That case was Jarkesy. It held that, when Congress makes some activity illegal and provides for civil remedies against those who violate that law, the civil remedy can only be adjudicated in a jury trial. Well, the Court already examined that exact issue in a case called Atlas Roofing, from 1977. It held that civil remedies can be imposed in courts located within agencies, if Congress so specifies. Congress passed statute after statute in reliance on that principle. In part, the goal was to unclog the court system, and thus in some cases the agencies enforcing the law don't even have authorization to proceed in court. For instance, the Mine Safety Act is enforced by the Mine Safety Administration. the MSA can only bring cases seeking civil remedies in the courts within the agency (which are, by the way, fair). Now, the Mine Safety Act cannot be enforced. Literally.

So the Supreme Court, in deciding a case about a hedge fund manager who wanted a jury trial after defrauding investors, nuked a whole bunch of other statutes. Including the Mine Safety Act. They said to coal miners, "hey, sorry about this, but you can no longer rely on the Mine Safety Act to ensure that your employers create safe working conditions. I mean, you chose your career based on the prospect that mine explosions were rare, and now they aren't going to be so rare, but you see, there was this hedge fund manager who was being forced to answer for his crimes and we didn't want that, so you probably should buy more life insurance. Or rely on your union to . . . oh, never mind"

That is not a court in action. It wasn't just the Mine Safety Act. Dozens of agencies are now unable to enforce the laws that Congress directed them to enforce. They have been using these civil courts since WWII. For 80 years, the country got by just fine with this practice. It was challenged 40 years ago. The Court dismissed the challenge and upheld the system. There was literally no problem to solve here. The system worked OK -- just not for hedge fund managers whose strategy to avoid liability was to use their ill-gotten gains to extend a trial as long as possible until the government runs out of resources. But the Court likes those people, I guess, so it blew up decades of law applied in thousands of industries.

Oh, and what was the basis for the Court's holding. Why, it was the 7th Amendment, which states "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Note the words "at common law." The charges brought against the hedge fund manager were not at common law. They were pursuant to a regulatory scheme legislated by Congress. And how did the majority deal with that? Well, they said it was kind of like a suit at common law.

This is not a question of disagreeing with the court's opinion. It's a question of whether the Justices are trying to operate as jurists or as mini-kings.

Sort of like how in Roe the court decided, out of the blue, you had a right to abortion. This goes both ways whether you like it or not.

 

[superrific]

And more:

This term, the Court obliterated the limitations period that applied to challenges of regulations. Note that virtually all laws in America are subject to a limitations period, meaning that you can only bring the lawsuit within X years of the event in question. And that's especially true in a context like agency regulations, where there will be no shortage of potential plaintiffs. So Congress said, when an agency promulgates a rule, that rule can be challenged in court, and that challenge can be reviewed by the appeals court and ultimately the Supreme Court, but the challenge has to be brought within six years. If the rule survives its challenges, then it's good law and can't be challenged again.

This is, again, the only way to run a judicial system. People need stability in order to conduct business. Suppose the EPA or OSHA promulgates a rule that requires certain safety or pollution abatement equipment when a company wants to frack. So the rule gets challenged (let's say in 2010) and upheld. Fabulous -- now the law is settled. Anyone who wants to frack knows that it has to make a bunch of costly investments to comply with the rule. It will be able to pass at least most of those costs to the consumer over time. Gas or oil is a bit more expensive, but it also doesn't kill workers or pollute the environment. And the reason that the fracker is willing to make that investment is that the rule is now established law. The limitations period for challenging has passed.

Well, the Supreme Court this term decided differently. It said that anyone affected by a rule has the right to challenge the validity of the rule, no matter when the rule was passed. So now, if you want to frack, you don't have to make those investments. You can just challenge the rule in front of a friendly judge, and get the rule invalidated. Now you can drill without making safety investments. Again, the Court was telling businesses: sorry that we just put you at a huge cost disadvantage to new entrants who are now unburdened by requirements, but you see, we just had to rule in favor of this gas station that was established in South Dakota a couple of years ago because the gas station didn't like credit card exchange fees. Literally tens of thousands of businesses just had their legal protections ripped away from them.

Note that the limitations period had been established in the Administrative Procedure Act of 1947. It has applied ever since. So for 80 years, the current system worked just fine. There wasn't any Supreme Court case directly on point, because nobody brought it a case. Everyone accepted the idea of limitations periods. If anyone had brought this case in 1995 (or 2015 for that matter), they would have been laughed out of court. But the Court decided that it knew better than everyone else over the last 80 years.

So now we have chaos. Any rule, no matter how settled, can now be challenged again. And again. And again. And again. And as long as private industry wants to fund "new" businesses that pop up, ready to sue because the limitations period for them begins when they are first subject to the rule. The goal will be to find a friendly judge who will strike down the regs. It used to be that industry had basically one chance (in practice), and it had to accept the outcome win or lose. You know, how a court should work. But now, industry has unlimited bites at the apple. The government, of course, has only one. The first time it loses, it has lost.

This is not judging. This is not a judicial function. This is a power grab by the Supreme Court that will impact millions upon millions of Americans for no reason other than a few Justices had a bug up their butt for some reason.

This is why court reform is needed.

 

[superrific]

What if someone decided they wanted to have slaves again. Owned slaves, sued for their right to have slaves, and the court granted it. Then everyone started building business on slavery, relying on its availability, etc as you mention. I guess the court in this hypothetical would be tied to allowing slavery forever.
The point being, people see abortion as a horrific immorality that has no place in society, much like people viewed slavery. Many people view it as something that needs to be eliminated at all costs, much like slavery. Your exposition about the court is fine and all, but some topics go beyond that. Millions and millions of Americans do not want to live in a society where abortions are free and easy. Hell, even a decade ago most liberals wanted them to be available safe and rare. The rare part has gone out the window. So, I understand your point about precedent, but disagree with it because I think the Roe precedent was horrible. You disagree and that’s fine. I don’t really care.

That far-fetched slavery example is not apt. For one thing, it's YOUR side who would be upsetting the status quo (by saying slavery was OK after hundreds of years when it hasn't been). And there would be ways under existing doctrine to overturn the ruling you describe.

But let's skip abortion for the moment. That's only one example. I'm providing you with lists of cases in which the Court has not been acting as a court. I could list two dozen cases from recent years in which the court arrogated to itself power that it never had, was never given, and never should have. I'm sharing a few examples. Consider all of them, why don't you?

 

[superrific]

Sort of like how in Roe the court decided, out of the blue, you had a right to abortion. This goes both ways whether you like it or not.

The court did not decide that out of the blue. No precedent was overturned. The whole issue was kicked off by the advent of birth control technology, which led to the right to use birth control recognized in Griswold, and then further elaborated in other cases before it even got to Roe. There were no reliance interests at stake on the other side. Nobody was harmed by the fact that the law changed. They might have been harmed by the substantive change (harmed in a certain way, I suppose) but nobody had been relying on abortion to be illegal.

 

[05C40]

Despite having done these disclosures myself when I was government I don’t recall the penalties, but you can’t submit them and when you get caught providing a false document, go back and says “oops”. These were sizable gifts on multiple occasions that he didn’t report. It’s not a nothingburger.

Same here. One of the items I reported were the stud fees my wife received for "loaning out" her Arabian stallion. Because the form had a line for the name of the business, I coined one on the spot -- "(my wife's initials)'s Equine Escort Service." I was told, via channels, that was a big hit with the folks who reviewed such things.

 

[superrific]

And now let's get to the immunity decision. To fully appreciate it, you should also consider the "independent state legislature" theory that was in front of the court a couple of years ago, which the Court sorta kinda rejected over some dissents.

In both cases, the Court was entertaining crackpot theories that had never, ever been considered valid. They weren't even considered invalid. They were not considered at all, because serious people implicitly understood them to be ridiculous.

1. In the independent state legislature case, the Court was addressing whether states could regulate their voting procedures using their ordinary systems of law, or whether all decisions about voting had to be made by the legislature acting alone, regardless of what the state constitution says. Now the theory is incredibly weak in its own right, and not supported by anything, but it also flew in the face of all of American history. Nobody had EVER taken seriously the suggestion that the constitution directed the state legislatures to make law by themselves, with no input from the governor and without any ability of the state court to interpret. It certainly had never been done before. Not until Bush v Gore in 2000, when three Justices decided to float that theory. But it disappeared two years later, when the Court declined to hear a case on that point, and didn't arise again.

But this Court decided, hey, we should investigate whether the constitution as written 250 years ago actually requires this, and everyone who has thought about the constitution from then until now somehow didn't understand it. We alone can fix it, so to speak. And fortunately, the challenge was mostly turned back but it should never even have been considered (and IIRC three justices dissented and said that the constitution actually meant something that nobody had ever thought it to mean). It is the most arrogant idea I've ever seen from the Supreme Court, at least the most arrogant idea since the 19th century.

2. That is, until a couple of terms later when the Justices decided that the President needed immunity for criminal behavior. Again, they weren't interpreting an amendment, or a statute, or re-examining a provision of the constitution in light of changing technology (as, for instance, the 4th Amendment needed reworking after telephone taps were invented). They were examining a central provision of the Constitution. Again, in 250 years, nobody had ever taken seriously the idea that presidents could not be prosecuted for what they do as presidents. Everyone understood that WE FOUGHT A WAR over this issue. Everyone understood that NOBODY IS ABOVE THE LAW was literally one of the principal ideas on which the country was founded.

But did the Justices pay attention? Of course not. They know better. Almost nobody in the legal community today supported the idea. I would venture a guess that 99.99% of all lawyers in American history, and a similar % of judges, have understood the Constitution not to provide immunity to presidents for criminal behavior. But the Justices know better than anyone, apparently. These six people are apparently smarter than everyone who came before them combined.

3. This tendency for the Court to reach out and engage with lunacy is one of the worst and most dangerous features of the present theocracy. It's a little bit like the statute of limitations issue on steroids. None of us can be sure that the basic tenets of the constitution won't be changed on a dime. We thought America was one thing, and suddenly the Supreme Court decided it was something else.

Five years ago, we were a country in which the rule of law was respected, where the federal government had a vital if limited role in protecting the public health and welfare, as constrained by procedural requirements that prevented the government from overreaching in egregious ways (there will always be some overreach in any regulation, because we are not infinitely knowledgeable -- in fairness, God, who is, also overreaches), and where wrongdoers could be forced to answer for their actions.

Five years later, we are a country in which the president is above the law. The federal government cannot protect the public health or welfare unless the Supreme Court approves of it. Wrongdoers will not be forced to answer for their actions because the Court has said that Congress' remedies cannot be used. And oh yeah, women don't have autonomy over their bodies.

What's next? How can any of us be sure that our right or liberties can be protected? There are some on the right who want to overturn minimum wage laws and workplace safety laws (going back to an infamous case called Lochner). Is that next? What about equality under the law? That's already fraying, but in one decision they could pulverize it. American has been a place, at least since the 1960s, where you could marry someone of a different race if you want to. That is no longer the case, as I will get to in my next and final post. So if you married someone with darker skin (or lighter skin), you might get the shaft: sorry that you married someone of a different race and had kids and started a family, but now actually your marriage is invalid, but you'll be OK.

When the Supreme Court entertains crackpot theories that run counter to what Americans have always assumed America is all about, none of us are safe. And this, in theory, could go the other way (though it has not for a number of reasons). Oh, you thought that you would be able to raise your kids in your religion? Sorry, we've now decided that religious indoctrination is child abuse and can be prosecuted under child abuse laws. Sure, nobody but us thinks that's the way things are, but nobody but us matters. Sorry.

This is why court reform is needed.

 

[superrific]

And finally, let's get to the worst of all the decisions, one that has flown under the radar because it was swallowed up in practical effect by Dobbs. In Whole Women's Health v. Jackson, the court made it optional for states to comply with the 14th Amendment. Again, we FOUGHT A CIVIL WAR over this issue. Since the beginning of this century, everyone had assumed that rights guaranteed under the 14th Amendment were, you know, rights. The states had to obey the 14th Amendment's command -- one that is pretty clearly stated -- that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

That is no longer true. The 14th Amendment is optional, because of the Texas bounty law. The Supreme Court, in that case, said, "yes, this law is flagrantly unconstitutional, but we can't do anything about it because states' rights." All a state has to do is authorize private lawsuits against the actors whose rights it wants to compromise. If a state doesn't like interracial marriage, well all it has to do is pass a law saying, "1) Interracial marriage is illegal in this state; 2) any person who suspects another of violating this law can sue them in court for civil damages of 10,000 per plaintiff along with costs and attorneys' fees." Maybe a billionaire who marries interracially (e.g. Murdoch) could fight it. But most people would be ruined. They would either have to divorce or move.

This is not a court. This is a court that is wildly out of control and has to be reined in. And it's definitely important to understand how we got to this ridiculous place where states can ignore constitutional rights whenever they want. I mean, literally you and I no longer have fully enforceable rights.

1. The origin of this nonsense is the doctrine of "state sovereign immunity." This doctrine is based on nothing in the constitution. Search high and low, and you will find no mention of it. Well, that's not entirely true -- the 11th Amendment speaks to the issue, and it quite clearly establishes that state sovereign immunity doesn't exist except in a special case. But anyway, the courts of the Gilded Age decided to recognize the principle, mostly to allow the Southern states to continue to discriminate against black people without interruption.

The doctrine of state sovereign immunity states that a state government cannot be sued without its consent. If you're asking WTF, well, I've studied this and I have the same question. The entire idea of "sovereign immunity" comes from the English monarchy. Back then, to sue the government was to sue the king. But the king, being king, answers to nobody. Certainly a court cannot force the king to do or not do something. So sovereign immunity was implied in practice and became adopted in theory. That's great and all, but we rejected the monarchy in our founding documents and wars.

And even if you think sovereign immunity is a good thing for the nation, why on Earth would anyone think a state should enjoy that? North Dakota was a territory for a while, and in that territory, the government could be sued. Then Congress made it a state for some reason, and now it gets to trample on rights at its discretion? What sense does that make? The whole point of our federalist system is that federal law takes precedence over state law. It's been there since the very beginning. But state sovereign immunity upends that. The federal government's law cannot be enforced against states, because reasons.

2. This completely untenable state of affairs was soon reversed by another decision of the Supreme Court, called Ex Parte Young. It didn't overrule the idea of state sovereign immunity (which it should have done), but instead offered a workaround. You couldn't sue the state, but you could sue the official in the state who was causing the state to do act. It's a distinction without a difference: people still say that they are suing the government even if they are actually suing the president or an agency head or a governor or whatever. The substance of the suit is exactly the same. It's just that the caption on the case reads "Nebraska v. Biden" as opposed to "Nebraska v. United States." Or Rucho v Common Cause instead of North Carolina v. Common Cause.

So then for 100 years, we lived with this understanding. You could sue a state for violating your rights, but you had to name an official in the caption of your lawsuit. Your allegations might or might not even mention that official's name -- the substance, at least, will be almost entirely on the government's actions and not the official's actions -- but you have to deliver your complaint to the official and list the official as a defendant. Otherwise, we could have a sensible system in which states that violate federal law can be forced to comply, as required by the Supremacy Clause of Article VI.

3. And then Texas came along and said, "hey, what if we design a law that doesn't need to get enforced by any state official? We'll just rely on private citizens to do our dirty work for us." In other words, the Texas law challenged the workaround. This was the abortion bounty system.

In adjudicating the case, the Supreme Court had two options.

A. It could have recognized that the Ex Party Young workaround existed for a reason: namely, that the 14th Amendment requires states to recognize certain rights, and that requirement means nothing if violations can't be redressed. So either the workaround has to be preserved by allowing plaintiffs to sue *some* official involved in the law's promulgation or enforcement (including judges, who were for some reason exempted), or the whole idea of state sovereign immunity would have to be scrapped. Again, for a hundred years, we all lived with the workaround and there were no issues. We all accepted that the 14th Amendment did what it said it did. After all, state sovereign immunity, if it exists at all, was created by the original constitution. The 14th was an amendment that changed things -- one of which was state sovereign immunity.

B. OR, it could say, "Texas outsmarted us. They figured out a way to use a legal principle that is nowhere in the constitution to defeat a provision that is very clearly in the constitution, one over which we fought a way, and there's nothing we can do about it." As we know, it chose this option.

Note that, as I have shown and others have more exhaustively documented, this Court has not usually been willing to accept that "there's nothing we can do about it." The president is being prosecuted in state court for crimes he committed? We can do something about that, by making things up out of nowhere! Hedge fund managers are being forced to pay fines when they defraud people? There's something we can do about that! The 14th Amendment being nullified by the fiction of state sovereign immunity? Our hands are tied!

This was an act of extraordinary arrogance cloaked as humility. It purported to be following precedent, but instead it actually wrote an amendment out of the constitution. Nothing is more arrogant than that. Why? WHY DID IT NUKE THE 14TH AMENDMENT? Because it seemed convenient at the time. It turned out to be gratuitous, since they knew they were overturning Roe anyway, so the challenge to the bounty law would have been defeated on the merits. But no, it had to pummel the 14th, just because.

This is not a court.

There is nothing at all good to say about this bounty system. Maybe you like the law because it goes after others' rights, but there's nothing stopping it from being used against you. Again, so many of the freedoms on which we rely can be cancelled at a drop of a hat. If you are in an interracial marriage, you might be forced to get a divorce. Or if you're not in an interracial marriage, you might be forced to get a divorce if the state legislature wants to make diversity mandatory. Would that be flagrantly unconstitutional? Of course. Is there anything you can do about it? NOPE.

You think you have a First Amendment right to start a church, and worship your God as your conscience demands? NOPE! The state can put a bounty system on churches. It can declare religion to be illegal, allow anyone to sue any church for ruinous fees (and as we all know, there would be no shortage of plaintiffs for that sort of thing), and boom, it's an atheist state. AND THERE'S NOTHING YOU CAN DO ABOUT IT.

You now have no guaranteed rights. ALL of your rights can be undermined by a state that wants to. That's what this Supreme Court did.

That's why ALL AMERICANS should support court reform. Because this shit is intolerable. That case wasn't about abortion. It was about whether Americans have rights. So far, no states have used this power except to outlaw abortion, and now it's not really even necessary for that purpose . . . but there's no guarantee that will continue to be true. States can now enforce atheism; deal with it or reform the court. States can now declare all guns to be illegal; deal with it, or reform the court.

If you conservatives actually believed what you say about liberals, you should be terrified because it's only a matter of time before us God-and-country hating Americans start destroying your rights at the state level. You could try to steal elections to make sure that doesn't happen, and when you fail, you'll be screwed. Or you could knock the Court back to where it belongs.

 

[gtyellowjacket]

This is an all-timer.

Certainly by volume. I think the arguments are a little bit cherry-picked. Let me do the same.

Decisions do get overturned. Plessy versus Ferguson enshrined separate but equal. Whole industries were built around that precedent. We had separate schools, hospitals, sections in movie theaters, even water fountains. It took a Supreme Court decision to overturn it.
The argument (by a lot of people across the political spectrum) is that precedent is sacrosanct until they want a position overturned. Then its time for a change while the other side bucks about a Supreme Court that has lost its bearings. Rinse and repeat.