[SCOTUS] thread we dreaded updates for because RIP RBG

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  • Martini_PhilosopherMartini_Philosopher Registered User regular
    Krieghund wrote: »
    Taramoor wrote: »


    Amy Howe reports on the SCOTUS
    Thomas says that petition "provides a stark reminder of the consequences of Obergefell" v. Hodges, recognizing right to same-sex marriage, & says that "the Court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences.'"

    So, I can't imagine they'll summarily and simultaneously invalidate the hundreds of thousands of marriages and all the associated contracts that have resulted since Obergefell, but I can't see how they won't.

    I'm confused. What was the "ruinous consequence"? That somebody had to give a marriage license to gay people?

    If you read the dissents, and Thomas' in particular, what they're complaining about is the fact that much of this is predicated on the 14th Amendment and the Loving v. Virginia decision.

    Thomas straight up said that Loving was decided wrong and that interracial marriage should be left up to the states to regulate.

    That's what is so "icky" about this decision. It reinforces the message that racism and racist laws are wrong.

    All opinions are my own and in no way reflect that of my employer.
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  • monikermoniker Registered User regular
    Krieghund wrote: »
    Taramoor wrote: »


    Amy Howe reports on the SCOTUS
    Thomas says that petition "provides a stark reminder of the consequences of Obergefell" v. Hodges, recognizing right to same-sex marriage, & says that "the Court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences.'"

    So, I can't imagine they'll summarily and simultaneously invalidate the hundreds of thousands of marriages and all the associated contracts that have resulted since Obergefell, but I can't see how they won't.

    I'm confused. What was the "ruinous consequence"? That somebody had to give a marriage license to gay people?

    If you read the dissents, and Thomas' in particular, what they're complaining about is the fact that much of this is predicated on the 14th Amendment and the Loving v. Virginia decision.

    Thomas straight up said that Loving was decided wrong and that interracial marriage should be left up to the states to regulate.

    That's what is so "icky" about this decision. It reinforces the message that racism and racist laws are wrong.

    I guess that's one way to end your marriage without a divorce...

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  • rahkeesh2000rahkeesh2000 Registered User regular
    Most of the desired judgements against LGBTQ really have to track similar with race and gender. If people can ignore non-discrimination amendments in one instance it's logically going to apply in others.

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  • NogginNoggin Registered User regular
    Enc wrote: »
    spool32 wrote: »
    that petition was denied, folks. Kim Davis's case is over.

    Well, yes and no. The petition was denied. The intentionality to reverse Obergefell was penned in the brief. Right now only by the two most hack of our judges, but add in a third true believer and it becomes very real.

    It’s a clear demonstration that the Court is in actuality political. Nobody is forcing Alito and Thomas to make a hackneyed argument about why the case should have been heard. It’s obvious they see the Court as a venue for political change.

    https://www.washingtonpost.com/politics/courts_law/supreme-court-kim-davis-same-sex-marriage/2020/10/05/cd5a74d2-0710-11eb-9be6-cf25fb429f1a_story.html

    Apparently they agreed it should not have been heard, but couldn’t turn down the soapbox.
    Justices Clarence Thomas and Samuel A. Alito Jr. said they agreed with the court’s decision not to hear Davis’s petition, but used the occasion to renew their objections.

    Battletag: Noggin#1936
  • Martini_PhilosopherMartini_Philosopher Registered User regular
    moniker wrote: »
    Krieghund wrote: »
    Taramoor wrote: »


    Amy Howe reports on the SCOTUS
    Thomas says that petition "provides a stark reminder of the consequences of Obergefell" v. Hodges, recognizing right to same-sex marriage, & says that "the Court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences.'"

    So, I can't imagine they'll summarily and simultaneously invalidate the hundreds of thousands of marriages and all the associated contracts that have resulted since Obergefell, but I can't see how they won't.

    I'm confused. What was the "ruinous consequence"? That somebody had to give a marriage license to gay people?

    If you read the dissents, and Thomas' in particular, what they're complaining about is the fact that much of this is predicated on the 14th Amendment and the Loving v. Virginia decision.

    Thomas straight up said that Loving was decided wrong and that interracial marriage should be left up to the states to regulate.

    That's what is so "icky" about this decision. It reinforces the message that racism and racist laws are wrong.

    I guess that's one way to end your marriage without a divorce...

    I feel like have to keep bringing it up because of how cartoonishly myopic it is. His argument in that dissent is a treatise on how the the whole world is wrong about the dictionary definition of "liberty" and that it can't include freedoms such as marrying who you want because that can offend some religious people.

    Of all of the things for a black man to argue, that is the absolutely last one I would have thought would come up. But here we are.

    All opinions are my own and in no way reflect that of my employer.
  • Jealous DevaJealous Deva Registered User regular
    edited October 5
    I honestly feel like the court probably wouldn’t overturn the gay marriage ruling just because it would be such a massive legal clusterfuck (as opposed to the most far right justices making ‘statements of concern’ and whatnot), but maybe that is just me being optimistic.

    Jealous Deva on
    Doodmannspool32
  • AngelHedgieAngelHedgie Registered User regular
    moniker wrote: »
    Krieghund wrote: »
    Taramoor wrote: »


    Amy Howe reports on the SCOTUS
    Thomas says that petition "provides a stark reminder of the consequences of Obergefell" v. Hodges, recognizing right to same-sex marriage, & says that "the Court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences.'"

    So, I can't imagine they'll summarily and simultaneously invalidate the hundreds of thousands of marriages and all the associated contracts that have resulted since Obergefell, but I can't see how they won't.

    I'm confused. What was the "ruinous consequence"? That somebody had to give a marriage license to gay people?

    If you read the dissents, and Thomas' in particular, what they're complaining about is the fact that much of this is predicated on the 14th Amendment and the Loving v. Virginia decision.

    Thomas straight up said that Loving was decided wrong and that interracial marriage should be left up to the states to regulate.

    That's what is so "icky" about this decision. It reinforces the message that racism and racist laws are wrong.

    I guess that's one way to end your marriage without a divorce...

    I feel like have to keep bringing it up because of how cartoonishly myopic it is. His argument in that dissent is a treatise on how the the whole world is wrong about the dictionary definition of "liberty" and that it can't include freedoms such as marrying who you want because that can offend some religious people.

    Of all of the things for a black man to argue, that is the absolutely last one I would have thought would come up. But here we are.

    There's a reason I've referred to Thomas as "Justice Uncle Ruckus" on occasion.

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  • shrykeshryke Member of the Beast Registered User regular
    We've talked about it before but Thomas has a very non-standard judicial philosophy, especially on racial issues. If I had to sum it up it might be something like: he believes in actual separate-but-equal and thinks the attempts at racial equality we've been working towards are ineffective and paternalistic.

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  • tbloxhamtbloxham Registered User regular
    I honestly feel like the court probably wouldn’t overturn the gay marriage ruling just because it would be such a massive legal clusterfuck (as opposed to the most far right justices making ‘statements of concern’ and whatnot), but maybe that is just me being optimistic.

    As I said, my expectation is that they (for both this and abortion) would return the right to apply more strict restrictions to the states. So a state could choose whether or not to ban abortion or gay marriage. However, in a 'fig leaf' effort to make it seem not quite so horrifying (even though this would have no actual effect) they would make the gay marriage one explicitly not retroactive, ie, people who already got married in georgia can stay married. However, that part of the rule would almost certainly have no details in terms of what it actually means, or provide any minimum compliance details and as such it would be meaningless. People in Georgia would still be married, and still technically entitled to benefits as such, but there would be no means in Georgia law to (for example) make sure that legal documents supported you being able to enter a man as the spouse of another man, or to ensure that survivor benefits for a pension be properly paid to another man, or to ensure that the inheritance of property between a couple not be described as "In the case that a MAN should die, his property. shall transfer to his WIFE without the need for HER to pay taxes on that property, and the same shall be true of property owned by a WOMAN whose property is tranferred to her HUSBAND on her death"

    So, to vaguely informed heterosexual people it would kinda seem like no big deal. Eh, that sucks, but, Bill and Pete are still married and Celina and Jessica can just go get married in California and still get benefits here in Georgia. But, Bill and Pete would find that forms started to refuse to accept that they could be each others husbands, Celina and Jessica would find that they needed one man and one woman when they went to the fertility clinic, perhaps one of them would be forced to have a sperm count test or something ridiculous before they were eligible for fertility services and the like.

    Exclusion would be made national by fiat due to deliberately mis-structured laws being applied which explicitly excluded gay couples. With no federal regulations to fall back on, couples in those states would be reduced to trying to appeal to the supreme court to try and get a mortgage loan or something. Because now the forms say...

    1)If you are married, you must list both partners
    2)Here is the space for the MANS name
    3)Here is the space for the WOMANS name
    4) You must enter both names in the correct boxes

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  • Phoenix-DPhoenix-D Registered User regular
    As always the "religious freedom" conservatives are the biggest actual threat the religious freedom.

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  • Martini_PhilosopherMartini_Philosopher Registered User regular
    Phoenix-D wrote: »
    As always the "religious freedom" conservatives are the biggest actual threat the religious freedom.

    Religious freedom is code specifically for racial discrimination and bigotry.

    All opinions are my own and in no way reflect that of my employer.
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  • Dark_SideDark_Side Registered User regular
    moniker wrote: »
    Krieghund wrote: »
    Taramoor wrote: »


    Amy Howe reports on the SCOTUS
    Thomas says that petition "provides a stark reminder of the consequences of Obergefell" v. Hodges, recognizing right to same-sex marriage, & says that "the Court has created a problem that only it can fix. Until then, Obergefell will continue to have 'ruinous consequences.'"

    So, I can't imagine they'll summarily and simultaneously invalidate the hundreds of thousands of marriages and all the associated contracts that have resulted since Obergefell, but I can't see how they won't.

    I'm confused. What was the "ruinous consequence"? That somebody had to give a marriage license to gay people?

    If you read the dissents, and Thomas' in particular, what they're complaining about is the fact that much of this is predicated on the 14th Amendment and the Loving v. Virginia decision.

    Thomas straight up said that Loving was decided wrong and that interracial marriage should be left up to the states to regulate.

    That's what is so "icky" about this decision. It reinforces the message that racism and racist laws are wrong.

    I guess that's one way to end your marriage without a divorce...

    I feel like have to keep bringing it up because of how cartoonishly myopic it is. His argument in that dissent is a treatise on how the the whole world is wrong about the dictionary definition of "liberty" and that it can't include freedoms such as marrying who you want because that can offend some religious people.

    Of all of the things for a black man to argue, that is the absolutely last one I would have thought would come up. But here we are.

    A black man married to a white woman no less. I used to give at least a little credit to Thomas because he was consistent in his batshit, but I've started to realize that his opinions seem specially tailored to make sure he and his wife continue living fat off right wing welfare.

    BlackDragon480
  • Munkus BeaverMunkus Beaver Registered User, ClubPA regular
    The only consistent things about Thomas are his Scalia bootlicking and his absolutely disdain for writing opinions.

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  • Carson VendettaCarson Vendetta Registered User regular
    Wouldn't they just try to do an end run around same sex marriage, using that colorado cake case? Insurance/private hospitals/etc saying that they are a christian organization so they don't recognize same sex marriage and refuse to issue benefits or choosing not to enroll or admit because they claim that homosexual lifestyle carries additional risk they don't to bear?

    If a conservative court decides they don't want to risk coming up lazy hack thomas type decision, what stops them from stripping out all of the policy benefits of marriage?

  • zagdrobzagdrob Registered User regular
    Wouldn't they just try to do an end run around same sex marriage, using that colorado cake case? Insurance/private hospitals/etc saying that they are a christian organization so they don't recognize same sex marriage and refuse to issue benefits or choosing not to enroll or admit because they claim that homosexual lifestyle carries additional risk they don't to bear?

    If a conservative court decides they don't want to risk coming up lazy hack thomas type decision, what stops them from stripping out all of the policy benefits of marriage?

    They would be fine with it probably, but the religious right wants it to be explicitly illegal, not just some 'separate but equal' thing.

    They won't play the long game anymore of marginalizing and being coy, they just find the idea of same sex anything being legal - much less called marriage - abhorrent. They don't want to strip away protections, they want to make any protections illegal.

    And the religious right won't accept anything less. Which is why they are having trouble walking their fine line. Dogwhistles aren't enough anymore.

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  • ShivahnShivahn Unaware of her barrel shifter privilege Western coastal temptressRegistered User regular
    Man, worries about gay marriage falling apart due to Supreme Court reversals following Kennedy's retirement are specifically why I left the US (or, more accurately, that moment was when my wife typed "immigration to Canada" into Google after months of ignoring me suggesting it). It sucks that it appears our calculations may have been correct =/

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  • RiboflavinRiboflavin Registered User regular
    Meh, I'm a Republican(mostly, I did vote for Perot) that supports same sex marriage. I don't think they will overturn it because they would lose waaaaaaaaaay too many voters. Back in the day I think most Republicans would not have supported gay marriage but now its the norm and honestly I think most of us (Republicans) don't care about sexual preference and pushing this issue would kill the voter base. Of course there are always the extremists but they are a minority.

  • ArdolArdol Registered User regular
    Riboflavin wrote: »
    Meh, I'm a Republican(mostly, I did vote for Perot) that supports same sex marriage. I don't think they will overturn it because they would lose waaaaaaaaaay too many voters. Back in the day I think most Republicans would not have supported gay marriage but now its the norm and honestly I think most of us (Republicans) don't care about sexual preference and pushing this issue would kill the voter base. Of course there are always the extremists but they are a minority.

    Maybe a minority in the general public, but not a minority in the Supreme Court perhaps. Justices don't have to worry about voters.

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  • spool32spool32 Contrary Library Registered User regular
    Yeah it's not going to matter what the voters think. The voting solution is to either make this clear through legislation, or amend the Constitution.

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  • Phoenix-DPhoenix-D Registered User regular
    spool32 wrote: »
    Yeah it's not going to matter what the voters think. The voting solution is to either make this clear through legislation, or amend the Constitution.

    Pack the court. Thomas and company will find a bullshit theocracy reason to overturn any law.

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  • ShivahnShivahn Unaware of her barrel shifter privilege Western coastal temptressRegistered User regular
    edited October 7
    Well, it's also not really about overturning it. I mean, don't get me wrong, I don't think it's unlikely that it'll end up overturned, but more critically, you can shave something to death without overturning it. The Supreme Court refused to hear a case in.. 2017? which let stand the Texas' supreme court's decision that, while states have to license and recognize same sex marriages, they don't have to offer them the same benefits. As far as I know, that's still the case. This was before Kavanaugh was on the court, and before whoever comes next (presumable ACB). Even if I could be convinced that a de jure overturning of same sex marriage was impossible, it's pretty clear that a de facto reduction of it to a pale shadow is at least very likely.

    edit: though tbf Gorsuch's opinion on trans people is actually consistent with very gay-friendly jurisprudence.

    Shivahn on
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  • monikermoniker Registered User regular
    Shivahn wrote: »
    Well, it's also not really about overturning it. I mean, don't get me wrong, I don't think it's unlikely that it'll end up overturned, but more critically, you can shave something to death without overturning it. The Supreme Court refused to hear a case in.. 2017? which let stand the Texas' supreme court's decision that, while states have to license and recognize same sex marriages, they don't have to offer them the same benefits. As far as I know, that's still the case. This was before Kavanaugh was on the court, and before whoever comes next (presumable ACB). Even if I could be convinced that a de jure overturning of same sex marriage was impossible, it's pretty clear that a de facto reduction of it to a pale shadow is at least very likely.

    edit: though tbf Gorsuch's opinion on trans people is actually consistent with very gay-friendly jurisprudence.

    They are actively turning the First Amendment from a shield into a spear. Bigotry against LGBTA+ (and probably black) people will be protected because blonde baby jesus.

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  • daveNYCdaveNYC Why universe hate Waspinator? Registered User regular
    Shivahn wrote: »
    Well, it's also not really about overturning it. I mean, don't get me wrong, I don't think it's unlikely that it'll end up overturned, but more critically, you can shave something to death without overturning it. The Supreme Court refused to hear a case in.. 2017? which let stand the Texas' supreme court's decision that, while states have to license and recognize same sex marriages, they don't have to offer them the same benefits. As far as I know, that's still the case. This was before Kavanaugh was on the court, and before whoever comes next (presumable ACB). Even if I could be convinced that a de jure overturning of same sex marriage was impossible, it's pretty clear that a de facto reduction of it to a pale shadow is at least very likely.

    edit: though tbf Gorsuch's opinion on trans people is actually consistent with very gay-friendly jurisprudence.

    You can see the same thing has been done to abortion rights where they've put such requirements on clinics that they can't stay open. They'd do something similar here, where they wouldn't outlaw same-sex marriage, they'd simply allow all and sundry to act as though that marriage doesn't exist if it... something something deeply held religious beliefs.

    And then they'll probably go to court with any employer who asks potential employees if they'd discriminate in that way using religious discrimination as the excuse.

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  • tbloxhamtbloxham Registered User regular
    Riboflavin wrote: »
    Meh, I'm a Republican(mostly, I did vote for Perot) that supports same sex marriage. I don't think they will overturn it because they would lose waaaaaaaaaay too many voters. Back in the day I think most Republicans would not have supported gay marriage but now its the norm and honestly I think most of us (Republicans) don't care about sexual preference and pushing this issue would kill the voter base. Of course there are always the extremists but they are a minority.

    Most active Republicans care deeply about sexual preference. Sadly your party is riddled with bigots against anyone who is not a white cis male. You are right that extremists are the minority of the country, but Republicans are a minority party composed almost completely of extremists and the ill informed. The ill informed don't care that much about anything, they just vote Republican because that's what they usually do, and extremists ABSOLUTELY want gay marriage banned. They want inter-racial marriage banned. They want women to be unable to marry without their fathers permission.

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  • tbloxhamtbloxham Registered User regular
    Phoenix-D wrote: »
    spool32 wrote: »
    Yeah it's not going to matter what the voters think. The voting solution is to either make this clear through legislation, or amend the Constitution.

    Pack the court. Thomas and company will find a bullshit theocracy reason to overturn any law.

    Indeed, we explicitly do not need to amend the constitution because the constitution does not say how many supreme court justices there should be. All we need to do is select 4 new members in good standing, subject them to a dilligent and careful review to prove they are independant and fair minded and appoint them.

    When we pack the court, we have the advantage that we can pack the court with well respected, fair and diverse jurors because all the things we want from the court are so patently obvious and clear to anyone who is not a partisan hack.

    1) Should women be allowed to make their own healthcare decisions and decide for themselves about pregnancy? -> Yes
    2) Should people be prevented from voting? -> No
    3) Should members of government be allowed to take bribes, or engage in activities which look like bribes to the public? -> No
    4) Should governments be allowed to pass laws controlling campaign finance? -> Yes
    5) Should districts for the house be structured in a way which benefits one party at the expense of another, if those changes are applied by the party which benefits? -> No
    6) Should people be allowed to enter into a marriage with any other adult who consents, with equal benefits regardless of the gender of those involved? -> Yes
    7) Should vast swathes of the American public be forced to live in stateless areas with no political representation in the Senate? -> No

    We don't need 10 RBG's. We need 10 people who understand some basic facts about how a democracy needs to work, how equality needs to work, and so on. We could appoint Condeleeza Rice (I'm having a hard time thinking of a Republican woman who is a lawyer) and get 90% of what we want out of the court.

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  • Jealous DevaJealous Deva Registered User regular
    On the one hand you are right, on the other I wonder how exactly that would play with people like Peter Thiel or Richard Grenell, otherwise right wing out gay people who at this point are pretty invested in the Republican party but would probably be pretty pissed at a reversal on gay marriage.

  • Phoenix-DPhoenix-D Registered User regular
    On the one hand you are right, on the other I wonder how exactly that would play with people like Peter Thiel or Richard Grenell, otherwise right wing out gay people who at this point are pretty invested in the Republican party but would probably be pretty pissed at a reversal on gay marriage.

    Read the dissent and ask yourself if they care.

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  • CoinageCoinage Heaviside LayerRegistered User regular
    What's Thiel gonna do, support paying more taxes? He'd rather die

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  • AngelHedgieAngelHedgie Registered User regular
    spool32 wrote: »
    Yeah it's not going to matter what the voters think. The voting solution is to either make this clear through legislation, or amend the Constitution.

    Which, as the literally created out of whole cloth concept of qualified immunity demonstrates, doesn't actually work. The courts have gutted many of the protections of the Bill of Rights through their "interpretation" of the Constitution, and there's nothing showing that "clarifying" through either legislation or amendment will stop this. The answers here may very well be court packing and Congress wielding its Article III powers to restrain the Court's jurisdiction.

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  • tbloxhamtbloxham Registered User regular
    On the one hand you are right, on the other I wonder how exactly that would play with people like Peter Thiel or Richard Grenell, otherwise right wing out gay people who at this point are pretty invested in the Republican party but would probably be pretty pissed at a reversal on gay marriage.

    Which is why there will be no outright federal ban on gay marriage, and no outright federal ban on abortion. Instead the courts will remove the supporting constructs that prevent individual states banning the practice locally, install new constructs which prevent private companies retaliating against jurisdictions which implement bans (using religious anti-discrimination laws as the basis) and remove the regulations which allow people to get access to out of state abortions or have their marriages recognized.

    For example, companies which try to (for example) pull their HQ's or refuse federal contracts with states and local governments which ban abortion or gay marriage will find themselves at the same end of a suddenly newly pointy stick intended to prevent them from doing things like explicitly saying, "We will not open a store in Michigan because there are too many black people there". SUddenly they wont get the benefit of the doubt, and any attempt to boycott jurisdictions will face heavy fines. Newpapers and private individuals who speak out will also find their voices silenced under the guise of 'preventing discrimination', as you can be certain that hate speech rules will be swiftly extended and given extra teeth to protect right wing jurisdictions.

    Rich people like Thiel and Grenell will find that their rich gay and lesbian friends don't suffer too much. They can get married in Canada, pay the additional money to have specialized mortgage forms prepared etc. The structures will be created such that the rich avoid the suffering, while the poor are punished more to appease the hateful.

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  • MorganVMorganV Registered User regular
    Coinage wrote: »
    What's Thiel gonna do, support paying more taxes? He'd rather die

    I dunno. Vampires have a fairly strong self-preservation instinct.
    Don't know how accurate the reporting is on Thiel wanting to inject the blood of the young, it's been reported both ways, but at least the last four years have made me think the fucking worst of the rich.

    And it'll never stop being funny to me.

    durandal4532
  • jdarksunjdarksun Struggler Registered User regular
    @MrMister Cross-post from the election thread, as this is off-topic there:
    MrMister wrote: »
    A paper she was second author on when she was a law clerk, and that’s not even what it says

    “Judges cannot—not should they try to—align the our legal system with the Church’s moral teachings whenever they diverge” —ACB & her coauthor In that paper’s conclusion

    Instead, they are discussing when Catholic Judges are required to ~recuse themselves~ because applying the law would run counter to their faith—which they think is morally required of them in some but not all cases where the law and the church are at odds (specifically in cases where the judge would be murdering someone by directly ordering their death sentence, but not even in all cases where the judge’s orders would result in a person’s death sentence being applied: as always, the Catholics love their doctrine of double effect).

    Glossing this as she believes that “the Bible Trumps the constitution” is misinformation
    Dude she wrote in the “Catholic Judges in Capital Cases” article that a Catholic judge who put the law above his faith was wrong to do so.

    Justice William Brennan: "there isn’t any obligation of our faith superior [to the law]"
    Barrett: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

    She's saying "fuck the law, your religion comes first."

    Like, maybe she's changed her mind in the last twenty years or whatever, but it's a pretty scary thing to have a Supreme Court justice say and maybe we should not consider them for the position of ultimate arbiter of law.

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  • MrMisterMrMister Please demonstrate your enthusiasm for e-marking and/or e-assessment with examplesRegistered User regular
    edited October 8
    jdarksun wrote: »
    @MrMister Cross-post from the election thread, as this is off-topic there:
    MrMister wrote: »
    A paper she was second author on when she was a law clerk, and that’s not even what it says

    “Judges cannot—not should they try to—align the our legal system with the Church’s moral teachings whenever they diverge” —ACB & her coauthor In that paper’s conclusion

    Instead, they are discussing when Catholic Judges are required to ~recuse themselves~ because applying the law would run counter to their faith—which they think is morally required of them in some but not all cases where the law and the church are at odds (specifically in cases where the judge would be murdering someone by directly ordering their death sentence, but not even in all cases where the judge’s orders would result in a person’s death sentence being applied: as always, the Catholics love their doctrine of double effect).

    Glossing this as she believes that “the Bible Trumps the constitution” is misinformation
    Dude she wrote in the “Catholic Judges in Capital Cases” article that a Catholic judge who put the law above his faith was wrong to do so.

    Justice William Brennan: "there isn’t any obligation of our faith superior [to the law]"
    Barrett: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

    She's saying "fuck the law, your religion comes first."

    Like, maybe she's changed her mind in the last twenty years or whatever, but it's a pretty scary thing to have a Supreme Court justice say and maybe we should not consider them for the position of ultimate arbiter of law.

    In the first paragraph of "Catholic Judges In Capital Cases" she and he co-author point out that the Catholic Church opposes the death penalty, but the legal system endorses it, and this puts Catholic judges in a difficult position. In the second paragraph, they say what should be done about it:
    The legal system has a solution for this dilemma-it allows (indeed it
    requires) the recusal of judges whose convictions keep them from doing
    their job. This is a good solution.

    The topic of the paper is not that. The authors maintain that throughout and do not take it to be a major subject of argument. Instead, it's this:
    But it is harder than you think to determine when a judge must recuse himself and when he may stay on the
    job. Catholic judges will not want to shirk their judicial obligations.
    They will want to sit whenever they can without acting immorally. So
    they need to know what the church teaches, and its effect on them. On
    the other hand litigants and the general public are entitled to impartial
    justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense. We need to know whether
    judges are sometimes legally disqualified from hearing cases that their
    consciences would let them decide.

    That is to say, the paper is about 1) granted that they should sometimes recuse, where exactly can Catholic judges participate in capital cases without recusing themselves?, and 2) can they be forceably recused by others because their Catholocism grounds reasonable suspicion that they cannot apply the law? The answers to those questions are, respectively, 'it's complicated' and 'generally no.'

    Their disagreement with Brennan in the quote you pull is ~not~ that they think the Catholic judge should apply their religious convictions in place of the law. They don't think that:

    " It would betray a public trust and undermine this system if judges who
    flatly opposed capital punishment were to cheat-to take charge of sentencing hearings and manipulate the law and evidence in order to save
    lives."

    So they agree with Brennan that judges should not positively substitute their moral code for the law. Their disagreement is with Brennan is that, as they interpret Brennan, he is saying that Catholic Judges should be willing to personally apply the death penalty in cases which the Church calls murder. They argue instead that in those cases the judge must recuse themselves. Hence Judges may never positive deviate from the law and impose their own vision, but they think it is sometimes appropriate to recuse and avoid personal complicity in murder (while still allowing the system to carry out it's judgment without a person's personal involvement).

    It would be legitimate to ask ACB about whether she still endorses the views in this paper, and if so, how that applies to Supreme Court Justices and the conditions under which she would feel compelled to recuse herself. Possibly, the answer would be "almost never"--because SCOTUS justices mostly interpret questions of law, which, due to the paper's Catholic casuistry, it seems to think is fine even in cases where the law itself is bad (the paper distinguishes legal interpretation that leads to a death from actively ordering a death). But maybe not; maybe she would feel more compelled to recuse.

    Either way, I stand by my characterization that the way the paper is being presented here is flat out misinformation. Even in this old, co-authored paper, she does not say that Catholics should substitute their judgment for the law and she in fact vigorously rejects that claim. She has also point blank rejected it every time she's been asked in hearings (e.g. by Grassley). So, no, she is not committed to the superiority of the bible to the consitution or whatever other incendiary and inaccurate formulation is going around.

    MrMister on
    spool32shrykeN1tSt4lkerLanlaornKorrorHappylilElfrahkeesh2000
  • spool32spool32 Contrary Library Registered User regular
    If that's the sum total of the support for "Barrett thinks the bible overrules the Constitution", then the accusation is pretty much false. This paper is very clearly saying that judges should not impose their morality on the justice system, and should instead step aside in favor of someone without the same moral conflict.

    MrMister
  • spool32spool32 Contrary Library Registered User regular
    I very much encourage everyone read through that Vox article right down to the bottom. I think we've been approaching this issue with Barrett all wrong.

  • shrykeshryke Member of the Beast Registered User regular
    edited October 8
    Yeah, Barrett is shitty for a whole host of other reasons. There's no reason to try and emphasize the one that isn't actually correct.

    She's absolutely, like all conservative judges the Federalist Society nominates, going to put her thumb heavily on the scale in favour of conservative politics and social issues. But this particular thing she wrote is not a useful line of attack.

    shryke on
    spool32MrMisterFencingsaxBlackDragon480ShadowfireKamar
  • AiouaAioua Ora Occidens Ora OptimaRegistered User regular
    So then she'll gladly recuse herself from any abortion cases, right?


    Right?

    life's a game that you're bound to lose / like using a hammer to pound in screws
    fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
    that's right we're on a fucked up cruise / God is dead but at least we have booze
    bad things happen, no one knows why / the sun burns out and everyone dies
    JaysonFour
  • spool32spool32 Contrary Library Registered User regular
    Aioua wrote: »
    So then she'll gladly recuse herself from any abortion cases, right?


    Right?

    The paper says that yes, orthodox catholics should do so because the perception can only be that they're 'cheating'.
    The implication seems clear but not entirely helpful: An orthodox Catholic judge should recuse himself or herself if the legal materials required affirming Roe. If an orthodox Catholic judge opts instead to cast a vote to overrule Roe, though, either the judge has decided that the purely legal materials support that vote or is willing to cheat. And the problem again is that the observer concerned with impartiality can’t tell which inference to draw.

    This is a legitimate line of questioning to bring up in the hearing, and a good way to get an abortion question on the table without needing the judge to dodge for the traditional litmus test reasons.

  • KrieghundKrieghund Registered User regular
    So when she doesn't recuse herself, what can we do? Because I will wager one internet that she won't.

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  • daveNYCdaveNYC Why universe hate Waspinator? Registered User regular
    spool32 wrote: »
    If that's the sum total of the support for "Barrett thinks the bible overrules the Constitution", then the accusation is pretty much false. This paper is very clearly saying that judges should not impose their morality on the justice system, and should instead step aside in favor of someone without the same moral conflict.

    Ha! So a judge would need to decide if something qualifies as cruel and unusual punishment, but do so without imposing their morality on the justice system? Sounds like Balls and Strikes, but even more blinkered.

    Shut up, Mr. Burton! You were not brought upon this world to get it!
    AngelHedgieDarkPrimusdispatch.o
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