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[SCOTUS] : Back in black robes - new judicial session has begun

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  • Phoenix-DPhoenix-D Registered User regular
    Is "I agree but the majority doesn't go far enough" a common dissent? Because that seems...weird.

  • PolaritiePolaritie Sleepy Registered User regular
    Phoenix-D wrote: »
    Is "I agree but the majority doesn't go far enough" a common dissent? Because that seems...weird.

    Normally it would be a concurrence I think.

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  • spool32spool32 Contrary Library Registered User regular
    edited June 2018
    Edit: this deserves to be rethought and restated in a more complete way.

    spool32 on
  • hippofanthippofant ティンク Registered User regular
    Polaritie wrote: »
    Phoenix-D wrote: »
    Is "I agree but the majority doesn't go far enough" a common dissent? Because that seems...weird.

    Normally it would be a concurrence I think.

    I imagine he had some sense of what the count would be, or knew it absolutely, and so chose to dissent on an otherwise 6-3 case, but would have concurred on an otherwise 4-5 case.

  • tbloxhamtbloxham Registered User regular
    spool32 wrote: »
    tbloxham wrote: »
    hippofant wrote: »
    Cururu wrote: »
    tbloxham wrote: »
    a5ehren wrote: »
    The 5 were Roberts + the Liberals, by the way. Kennedy + the Conservatives filed 4 different dissents that I have not read yet.

    I would have expected Gorsuch to rule with the majority here. He's an obvious corporate stooge, but he does seem to have a belief in personal freedom and limits on law enforcement.

    Looking at highlights of the decent (so take this with a grain of salt), it looks like the decent is that the majority is not going far enough in securing 4th Amendment protections. He wanted the ruling to be that all of your data stored in the cloud should count as your "papers" as far as the 4th Amendment is concerned.

    From the SCOTUSBlog article:
    But the most interesting separate dissent of the day came from Justice Neil Gorsuch, who specifically agreed with what he described as the majority’s “implicit but unmistakable conclusion that the rationale” for the third-party doctrine is wrong. Gorsuch would scrap both the third-party doctrine and the “reasonable expectation of privacy” test and focus instead on whether someone has a property interest (even if not a complete one) in the records at issue.

    Given all the Gorsuch bashing that occurs in this thread, :+1:


    From the same SCOTUSBlog article:
    Alito filed a lengthy dissent, joined by Thomas, in which he stressed that, as originally understood, the Fourth Amendment would not have applied at all to the methods that law-enforcement officials use to obtain documents.

    Does anybody know if that's actually true, or if it's nonsense originalism?

    Well, he does deserve 100% of the bashing he gets, as he is destroying the court more and more every day he is on it. BUT, we are developing a picture of his 'legal theory'. He seems to back the rights of corporations over everything, and to some extent those rights given to the people over the government. His legal theory of the supremacy of rights seems to go...

    Corporations
    People
    The government


    Now, there may be a rank under the government for 'minorities' but we haven't seen him judge on many big voting cases or discrimination cases yet.

    This is pure slander, unconnected to any facts.

    If he rules that unions can continue to exist then I will re-evaluate where I stand on his legal theory. However, I expect him to stick with it and destroy unions in this country for good.

    I mean, you can disagree with me all you want about whether he should be on the court and how catastrophic his presence is. You know that I think he shouldn't be there, and that until he leaves we don't have a functional court. However, you can't disagree with me that every judgement the man makes tends to favor business. He has surprised me a few times on his attitudes to personal freedoms, which is why I no longer view him as entirely a conservative stooge, but it's early days yet.

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  • GoumindongGoumindong Registered User regular
    be Careful with Gorsuchs dissent. While it looks good it could also be a workaround on all almost privacy laws and much 4th amendment jurisdiction.

    He wants to scrap the third party doctrine as well as the expectation of privacy aspects. These typically co-exist to show that the govt requires a warrant to search things you don’t own but you don’t have such an expectation when you’ve given the thing away.

    Gorsuch would have only wether or not you had a property right to something; which would massively reduce the space of privacy in the US and would mean that a procedural ruling on ownership could negate the privacy right.

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  • BlarghyBlarghy Registered User regular
    Polaritie wrote: »
    On the other hand, they made a 5-4 ruling that's delightfully Kafka-esque against defendents.

    If you're found not guilty in one trial, that doesn't prevent you being found guilty on other charges in a separate trial, even when the charge you were found not guilty on precludes the other charges.

    The defendent was found guilty of theft despite being not guilty of being a felon in possession of a firearm. The alleged theft included the firearm. He had argued that because he had been found not guilty of possessing a firearm he couldn't then be tried with its theft under double jeopardy.

    The ruling was 5-4 on standard ideological lines.

    One thing to note is that people aren't found "innocent" of crimes, simply "not guilty beyond a reasonable doubt". Normally, crimes this close to one another are bundled into a single trial, but given that the defendant agreed to sequential trials, the past "not guilty" verdict could certainly be brought up to the jury, but it would just be persuasive, not determinative on the jury's deliberations.

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  • PolaritiePolaritie Sleepy Registered User regular
    Blarghy wrote: »
    Polaritie wrote: »
    On the other hand, they made a 5-4 ruling that's delightfully Kafka-esque against defendents.

    If you're found not guilty in one trial, that doesn't prevent you being found guilty on other charges in a separate trial, even when the charge you were found not guilty on precludes the other charges.

    The defendent was found guilty of theft despite being not guilty of being a felon in possession of a firearm. The alleged theft included the firearm. He had argued that because he had been found not guilty of possessing a firearm he couldn't then be tried with its theft under double jeopardy.

    The ruling was 5-4 on standard ideological lines.

    One thing to note is that people aren't found "innocent" of crimes, simply "not guilty beyond a reasonable doubt". Normally, crimes this close to one another are bundled into a single trial, but given that the defendant agreed to sequential trials, the past "not guilty" verdict could certainly be brought up to the jury, but it would just be persuasive, not determinative on the jury's deliberations.

    Yeah. My issue with it is that the separate trials were basically required to avoid prejudicing the jury on the other trials by introducing "he's a convicted felon". So there's a fundamental injustice to say he then loses double jeopardy protections if he takes that option.

    The issue is that you can't just say it's persuasive. If you do, you're allowing the second jury to decide the facts of that matter. And iirc, double jeopardy applies to the facts of the case, so no future trial may put the facts before a jury; the question is settled in the legal context.

    I look at it like this:
    1) To preserve the defendant's right to a fair trial on all charges, the felon in possession charge has to be tried separately
    2) The defendant's double jeopardy rights say that once a jury has decided on the facts of a case the state has to abide by the result
    3) The second trial contained charges that cannot be prosecuted without the state arguing facts contrary to the result of the first trial
    4) Those charges should be blocked by double jeopardy.

    Basically, because of 1) no competent attorney would ever advise not splitting the trial to begin with. From there, everything else follows.

    In short, this ruling says that a defendant can be forced to give up their constitutional rights, which is an inherently nonsense ruling.

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  • a5ehrena5ehren AtlantaRegistered User regular
    SCOTUS has now officially punted the NC gerrymandering case back to the lower courts to check standing issues. So there you go.

  • kedinikkedinik Registered User regular
    a5ehren wrote: »
    hippofant wrote: »

    From the same SCOTUSBlog article:
    Alito filed a lengthy dissent, joined by Thomas, in which he stressed that, as originally understood, the Fourth Amendment would not have applied at all to the methods that law-enforcement officials use to obtain documents.

    Does anybody know if that's actually true, or if it's nonsense originalism?

    ...I think this is Alito trying to say that literally all electronic communication is not covered by the 4th because they didn't know what that was in 1792.

    Jesus, what a silly goose.

    For a few weeks now, Alito and Thomas have been pushing the argument that the Fourth Amendment cannot be enforced against state actors who violate it

  • CouscousCouscous Registered User regular
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

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  • MayabirdMayabird Pecking at the keyboardRegistered User regular
    kedinik wrote: »
    a5ehren wrote: »
    hippofant wrote: »

    From the same SCOTUSBlog article:
    Alito filed a lengthy dissent, joined by Thomas, in which he stressed that, as originally understood, the Fourth Amendment would not have applied at all to the methods that law-enforcement officials use to obtain documents.

    Does anybody know if that's actually true, or if it's nonsense originalism?

    ...I think this is Alito trying to say that literally all electronic communication is not covered by the 4th because they didn't know what that was in 1792.

    Jesus, what a silly goose.

    For a few weeks now, Alito and Thomas have been pushing the argument that the Fourth Amendment cannot be enforced against state actors who violate it

    The only amendment that counts is the Second, and that only for white men?

    MatevGnome-Interruptus
  • spool32spool32 Contrary Library Registered User regular
    Mayabird wrote: »
    kedinik wrote: »
    a5ehren wrote: »
    hippofant wrote: »

    From the same SCOTUSBlog article:
    Alito filed a lengthy dissent, joined by Thomas, in which he stressed that, as originally understood, the Fourth Amendment would not have applied at all to the methods that law-enforcement officials use to obtain documents.

    Does anybody know if that's actually true, or if it's nonsense originalism?

    ...I think this is Alito trying to say that literally all electronic communication is not covered by the 4th because they didn't know what that was in 1792.

    Jesus, what a silly goose.

    For a few weeks now, Alito and Thomas have been pushing the argument that the Fourth Amendment cannot be enforced against state actors who violate it

    The only amendment that counts is the Second, and that only for white men?

    Yes of course. Justice Thomas, a black man, believes he has no 2nd Amendment rights.

    FrankiedarlingMrMister
  • IlpalaIlpala Just this guy, y'know Texas booniesRegistered User regular
    SCOTUS has granted cert and sent back to a lower court the case against a florist who refused to produce a flower arrangement for a gay wedding. To reconsider in light of Masterpiece Cakeshop. Wasn't that ruling supposed to be very narrow and tailored to the specifics of that case? Are we already sliding toward "Anything less than full reverential deference towards people of faith is discriminatory"?

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  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    Ilpala wrote: »
    SCOTUS has granted cert and sent back to a lower court the case against a florist who refused to produce a flower arrangement for a gay wedding. To reconsider in light of Masterpiece Cakeshop. Wasn't that ruling supposed to be very narrow and tailored to the specifics of that case? Are we already sliding toward "Anything less than full reverential deference towards people of faith is discriminatory"?

    Nah, that case was like 99% "of course cake guy is wrong" and 1% "board was more wrong so we can't punish cake guy".

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  • ViskodViskod Registered User regular
    Ilpala wrote: »
    SCOTUS has granted cert and sent back to a lower court the case against a florist who refused to produce a flower arrangement for a gay wedding. To reconsider in light of Masterpiece Cakeshop. Wasn't that ruling supposed to be very narrow and tailored to the specifics of that case? Are we already sliding toward "Anything less than full reverential deference towards people of faith is discriminatory"?

    Nah, that case was like 99% "of course cake guy is wrong" and 1% "board was more wrong so we can't punish cake guy".

    Then why the florist decision? If the cake ruling was a “technicality” because they didn’t like what one board member said, how are they supposed to reconsider this one in light of that?

    Artereis wrote: »
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  • IlpalaIlpala Just this guy, y'know Texas booniesRegistered User regular
    Ilpala wrote: »
    SCOTUS has granted cert and sent back to a lower court the case against a florist who refused to produce a flower arrangement for a gay wedding. To reconsider in light of Masterpiece Cakeshop. Wasn't that ruling supposed to be very narrow and tailored to the specifics of that case? Are we already sliding toward "Anything less than full reverential deference towards people of faith is discriminatory"?

    Nah, that case was like 99% "of course cake guy is wrong" and 1% "board was more wrong so we can't punish cake guy".

    Reading up on it more, the case was already at the point where the florist had been ruled against and filed supplementary briefs after Masterpiece alleging discrimination. However, I'm also reading that this type of decision is one of the more typical ones for the court and can be pushed relatively easily by one or two justices, so it doesn't necessarily mean anything about what the entire court thinks of the merits of the case should it find its way back to them after the lower court re-decides (and an appeal is inevitably filed one way or the other)

    Still. Keeping my eyes on this one.

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  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    Viskod wrote: »
    Ilpala wrote: »
    SCOTUS has granted cert and sent back to a lower court the case against a florist who refused to produce a flower arrangement for a gay wedding. To reconsider in light of Masterpiece Cakeshop. Wasn't that ruling supposed to be very narrow and tailored to the specifics of that case? Are we already sliding toward "Anything less than full reverential deference towards people of faith is discriminatory"?

    Nah, that case was like 99% "of course cake guy is wrong" and 1% "board was more wrong so we can't punish cake guy".

    Then why the florist decision? If the cake ruling was a “technicality” because they didn’t like what one board member said, how are they supposed to reconsider this one in light of that?

    The like 95% of the decision that laid out the balancing factors that were only tipped because the government folks said stupid anti-religious shit. If the hairdresser wasn't also denigrated for having religious beliefs by the government officials in charge of the case I would not expect the review to go well for them.

    a5ehren
  • a5ehrena5ehren AtlantaRegistered User regular
    edited June 2018
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    FWIW, this is consistent with Gill as far as I can tell. They say you can only challenge the district you live in, which is weird since you can't redraw one district on its own...

    a5ehren on
  • ArbitraryDescriptorArbitraryDescriptor Registered User regular
    These jurists are killing me, I want the damned Union decision already.

    When do they go on summer recess?

  • PolaritiePolaritie Sleepy Registered User regular
    These jurists are killing me, I want the damned Union decision already.

    When do they go on summer recess?

    Next week I think. So they'll keep doing opinion releases this week until everything's out.

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  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    Yea, I seem to recall seeing two more days at least since they usually announce the last day at least a day ahead of time.

  • tbloxhamtbloxham Registered User regular
    edited June 2018
    These jurists are killing me, I want the damned Union decision already.

    When do they go on summer recess?

    Can't expect those justices to work so hard ArbitraryDescriptor! Haven't you heard of the weekend, and the 40 hour work week? All concepts set in stone by god himself, and nothing to do with any kind of benefits fought for by any kind of collective bargaining.

    tbloxham on
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  • shrykeshryke Member of the Beast Registered User regular
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

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  • Lord_AsmodeusLord_Asmodeus goeticSobriquet: Here is your magical cryptic riddle-tumour: I AM A TIME MACHINERegistered User regular
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

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  • DoodmannDoodmann Registered User regular
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

    Nah there is an impeachment process. It might be the same process as the president though.

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  • PolaritiePolaritie Sleepy Registered User regular
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

    Comitting a felony doesn't remove them. It's the impeachment that does.

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  • enlightenedbumenlightenedbum Registered User regular
    Doodmann wrote: »
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

    Nah there is an impeachment process. It might be the same process as the president though.

    It is, which makes it functionally impossible. Getting 67 votes to agree with the fruit of the poisoned tree argument is not going to happen.

    Pack the court.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
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  • Edith UpwardsEdith Upwards Registered User regular
    edited June 2018
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

    It's indecorous and violates political norms to talk about it.

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  • tbloxhamtbloxham Registered User regular
    I believe that if Trump does not get a second justice, then we may be able to scrape by as a democracy without packing the court. If he does get one, then we will simply have to do it.

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  • spool32spool32 Contrary Library Registered User regular
    Democracy functions just fine and Gorsuch is a capable, qualified Justice. With limited political capital, what's needed is a permanent remedy for the next time somebody tries that shit.

    Spend your energy on the Amendment.

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  • themightypuckthemightypuck MontanaRegistered User regular
    Doodmann wrote: »
    shryke wrote: »
    Couscous wrote: »
    SCOTUS mostly upheld Texas's gerrymander in 5-4 decision with the usual suspects being in the majority. They only accepted the challenge for one state House district.

    I really wish Gorsuch never got to be a justice.

    Well, you can impeach him. Or you can just let the Republican party profit from their crimes of conspiring with a foreign government to meddle in US elections.

    Gorsuch? I was under the impression there was basically no way to remove a Supreme Court Justice once they'd been nominated and accepted. Like I thought the only ways to be removed were to like, commit a felony or die.

    Nah there is an impeachment process. It might be the same process as the president though.

    It is, which makes it functionally impossible. Getting 67 votes to agree with the fruit of the poisoned tree argument is not going to happen.

    Pack the court.

    Packing the court risks killing the court. Should we do it anyway? Liberals in the USA are very fond of the institution of SCOTUS (if not as currently constituted) because of a lot of decisions in the mid 20th century that were ahead of the population. On the other hand, countries that didn't grant that sort of power to the court seem to have moved in a more liberal direction. The USA is not like those countries since the executive and legislative power are separate so there is an argument that we needed the court. I think the sad answer is that power matters and having it is better than not having it so if you are a progressive and gain the power to do so, packing the court is probably worth the roll of the dice.

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  • spool32spool32 Contrary Library Registered User regular
    edited June 2018
    You try it and you lose the electorate. Not even FDR had the juice to get it done. It's a fools errand, a progressive fantasy. You have a better chance of passing an amendment or, even better, winning some state legislatures.

    spool32 on
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  • GoumindongGoumindong Registered User regular
    spool32 wrote: »
    You try it and you lose the electorate. Not even FDR had the juice to get it done. It's a fools errand, a progressive fantasy. You have a better chance of passing an amendment or, even better, winning some state legislatures.

    Congress backed down; not roosevelt

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  • enlightenedbumenlightenedbum Registered User regular
    edited June 2018
    spool32 wrote: »
    Democracy functions just fine and Gorsuch is a capable, qualified Justice. With limited political capital, what's needed is a permanent remedy for the next time somebody tries that shit.

    Spend your energy on the Amendment.

    Democracy in this country is not functioning properly at all.

    I mean, for one thing, the president of the United States is the illegitimate puppet of a hostile foreign power.

    enlightenedbum on
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  • AstaerethAstaereth In the belly of the beastRegistered User regular
    spool32 wrote: »
    Democracy functions just fine and Gorsuch is a capable, qualified Justice. With limited political capital, what's needed is a permanent remedy for the next time somebody tries that shit.

    Spend your energy on the Amendment.

    “Illegitimate justice is deciding vote to ratify illegitimate redistricting” is not democracy functioning fine

    As is the expression, the Constitution is not a suicide pact; yet that’s what happens when an unfair election prevents the system from correcting away from future unfair elections. This is how systems enter a death spiral.

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  • themightypuckthemightypuck MontanaRegistered User regular
    spool32 wrote: »
    You try it and you lose the electorate. Not even FDR had the juice to get it done. It's a fools errand, a progressive fantasy. You have a better chance of passing an amendment or, even better, winning some state legislatures.

    This is probably true.;

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  • themightypuckthemightypuck MontanaRegistered User regular
    Goumindong wrote: »
    spool32 wrote: »
    You try it and you lose the electorate. Not even FDR had the juice to get it done. It's a fools errand, a progressive fantasy. You have a better chance of passing an amendment or, even better, winning some state legislatures.

    Congress backed down; not roosevelt

    I think the general view is that the court backed down. "A switch in time that saved nine."

    “Reject your sense of injury and the injury itself disappears.”
    ― Marcus Aurelius

    Path of Exile: themightypuck
  • JepheryJephery Registered User regular
    Eh the right wing electorate will oppose everything the Democratic party does by default, out of spite and propaganda.

    I'm not sure what the rest of the electorate will be up for if the Republican party ever loses its grip on power enough that the Democratic party can actually do anything about gerrymandering and SCOTUS seats.

    It really depends on how badly Trump and Republicans dig America into its grave.

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    "Orkses never lose a battle. If we win we win, if we die we die fightin so it don't count. If we runs for it we don't die neither, cos we can come back for annuver go, see!".
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  • GoumindongGoumindong Registered User regular
    Goumindong wrote: »
    spool32 wrote: »
    You try it and you lose the electorate. Not even FDR had the juice to get it done. It's a fools errand, a progressive fantasy. You have a better chance of passing an amendment or, even better, winning some state legislatures.

    Congress backed down; not roosevelt

    I think the general view is that the court backed down. "A switch in time that saved nine."

    Yes. My bad. Same principle though

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