What’s weird about the leak to me is like, wouldn’t SC drafts be tracked and identifiable? I guess you could scrub that stuff but is it as easy as removing a cover page or something?
Also the theory it was a clerk never really made sense based on 1) the timing and 2) the supposition that an ambitious young lawyer would torpedo their career to leak it. Which leaves the justices themselves, their immediate families and like, a handful of security people (also unlikely) as possibilities
I would be shocked if the SC was using a 21 CFR Part 11 compliant Quality Management System, and surprised if they used a secure SharePoint. I would expect that it is all Word docs emailed around between clerks with Track Changes on.
Probably the Senate should rush through a bill to make sure that the court is protected from these terrible leaks in the future! We must focus on the nations priorities after all.
Riling up outrage over the leak as opposed to the contents of the leak makes as much sense as any for the motive behind this leak.
Shut up, Mr. Burton! You were not brought upon this world to get it!
My experience is the higher you get in a government or corporate structure the lower the standards about stuff like that is. Like you can totally get some 15$ an hour worker to follow any security protocol at all but let some vice president decide that he or she is tired of having an id card swipe machine on the way to their office and its a giant PITA to get them to comply
I absolutely would not be surprised if they were just sending word documents or circulating paper copies with no identifying info on them.
Susan Collins calling the cops on sidewalk chalk that urged her to do something to protect American women’s rights is a pretty good summation of where DC elected officials’ heads are at.
NEWS — I've obtained the police report. It confirms Susan Collins was the complainant.
Susan Collins calling the cops on sidewalk chalk that urged her to do something to protect American women’s rights is a pretty good summation of where DC elected officials’ heads are at.
NEWS — I've obtained the police report. It confirms Susan Collins was the complainant.
Have some empathy, people. Any reference to a large cat is understandably very triggering to a member of the Face Eating Leopard party, and whoever who chose to confront her with striped orange(ish) shapes clearly knew that.
In my view, government officials should be afraid of the people in the sense that they should be afraid of losing their positions, through impeachment, losing elections, being fired, or whatever, and they should be afraid of the people in the sense that if they abuse their offices they may become persona non grata in polite society and/or become the subject of nonviolent protest. They should not be afraid of the people in the sense that they think they or their family members will be assassinated. I think it would be helpful if people who are angry that the supreme court's family members have been extended security services were specific in which kind of "fear" they're talking about.
It makes sense that people are very upset right now, because the consequences of this decision will be terrible. I believe that a creature weighing a couple pounds in which organ differentiation has just begun is not a person, whereas the adult gestating them is, and the decision about whether to continue pregnancy should between patients and doctors. Things will get worse for a lot of people. Nonetheless, understood as a legal decision, it is not clear to me that it was wrong for the court to overturn Roe. So far, I have never heard anyone say a kind word about the legal reasoning in Roe. Even lawyers who are ardent liberal supporters of abortion rights, and bitter enemies of movement conservatives in the judiciary, like Brian Leiter or Paul Campos, have said that there were clearly colorable legal arguments that Roe was wrongly decided, or, more straightfowardly, that it was just a bad decision with feeble reasoning. Eminent (dead) scholar of constitutional law John Hart Ely, who personally supported abortion, was quoted in the LA Times going so far as to say that Roe not only was not constitutional law, but that it gave very little impression of even trying to be. Instead of praising the actual decision, I've seen some people say they think that the same result could potentially have been reached via a better gender equality argument, but mostly I've seen them emphasize stare decisis. Stare decisis is a valid concern, but it is what you talk about when you don't want to talk about the decision itself and it is also not unqualified.
As far as I can tell as a non-legal observer this is really not among the worst decisions of the court in terms of its grounding in law. Cases like Sebelius, Shelby County, and Janus also rewrote the law in ways that advanced substantive priorities of the conservative movement, but in ways that floated free from credible constitutional arguments. I would be curious though, if there is some accessible legal analysis which I should be reading which would convince me otherwise.
Ok. This kind of analysis drives me up a wall. It's become a sort of received wisdom among the legal elite to signal their intellectual bona fides to jump on the bandwagon that "Roe is, objectively, poorly reasoned -- but" train. It is not. It would have, perhaps, been better if the first case to raise the issue of women's right to an abortion was RBG's championed equal protection case (the US Military woman who faced discharge if she did not terminate her pregnancy) and not the Roe case, which raised the issue under the theory of the privacy right embedded in liberty/substantive due process. But this is difficult to know and the legal analysis that follows is not that Roe should accordingly be overturned because it rests on a less defensible but still colorable constitutional ground, even if that premise was accepted!
The repeated quotations of John Hart Ely -- DEMOCRACY AND DISTRUST's John Hart Ely, who posited that judicial review was only constitutionally defensible where it advances the higher values of majoritarian government while protecting minority rights -- is locked in time and you should not take on faith that this is reflective of how Ely would respond to the current moment. You know who keeps hammering on that quote? The conservative legal movement, and they are rarely ever just talking about Roe. They are talking about the entire suite of fundamental rights recognized as substantive due process. The very debate over when an argument GOOD CONSTITUTIONAL REASONING vs. POOR CONSTITUTIONAL REASONING is a debate about the One Correct Method to interpret the Constitution, which conveniently happens to be the Method that gets you the narrow conservative results desired without any grounding or basis in methods applied by Justices since the Founding.
Such as, for example, where the fuckity fuck did judicial review come from? Justice Marshall's reasoning establishing the authority of the Court to overturn acts of Congress is itself grounded nowhere in the Constitution, but by sleight of constitutional hand, he aggrandized the power of the Court at the birth of the Republic. The people who drafted the goddamn thing were still alive, and you could have asked them if they ever intended the Court to have that power, or reasoned that by failing to include it in the Constitution, they never intended the Court to have that power. But is anyone (credible) saying that Marbury v. Madison is bad, poorly reasoned, non-constitutional lawmaking? No!! It's been 200+ years. The issue is fucking settled!
As for stare decisis. I got at this a little bit before, but the value of consistency is not the only justice-promoting aspect that respect for precedent is supposed to advance. There is also the well-known, well-understood value of reliance, and the overturning of settled expectations that large swaths of the population have organized their lives and futures around. The stability of the law is itself a value, because frequent, seismic changes in the law undermine both respect and deference to the law. Stare decisis is not a promise that things will never change, but is itself a method of approaching issues of law that cautions strongly against changing the law even if its original formulation was incomplete or flawed in some non-fatal way. That is why Casey is not only important for reaffirming Roe (though it rolled back a lot of protections from Roe), but for articulating THE test of stare decisis that remains good law in every federal court:
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case. . . . Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (cleaned up).
In order to get around this, Alito's draft opinion trashes not only the reasoning in Roe but the above standard in Casey. Is there anything actually substantively incorrect with the guidance outlined above in Casey for when a case should be overturned? Or is it that by cautioning courts to examine "prudential and pragmatic considerations," Courts are no longer doing law? But why shouldn't Courts consider the effects of their rules, not just at the time they were declared but at the time they are reexamined? Where does it say THAT in the Constitution? Is it not an advancement of the higher values of majoritarian democracy implicitly embedded within the entire Constitution to consider those effects? The kind of thing that Ely holds is the highest and best value of the Judiciary's function?
When you talk to Sophisticated Legal Elites, what you will get is the same story 90% of the time: "The outcome is good, but I would have done the reasoning better." Bully for you then. Constitutional arguments exist on a spectrum of defensibility and the reaffirmation of the reasoning in Roe with respect to other substantive due process rights reaffirms their viability as constitutional analysis. Pissing all over the fact that it doesn't say "abortion" right there in the text of the 14th Amendment is the backed-in constitutional argument of those seeking to redefine what constitutional analysis IS and what it ISN'T. But that conversation is itself subject to reevaluation and there is nothing in the constitution that says, Ye Shall Interpret Me By This Manner, and No Other.
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HakkekageSpace Whore Academysumma cum laudeRegistered Userregular
TBH I'm more surprised that SC Justices' immediate families weren't already receiving special protection.
The thing that just gets me is that Congress is so swift to act in this case without any actually threatening situation as an inciting incident but AFAIK the Daniel Anderl Judicial Security and Privacy Act, which was introduced in the Senate after a sitting federal judge's son was murdered by a madman and her husband shot in her home in 2020, has not moved since being voted out of committee in December of last year. It's the alacrity in response to this situation and not to that one that is disturbing.
One of these things represents a broad change to managing both public and private records and would make it more difficult to dox SCOTUS and other federal judges, something which people in this thread were broadly supportive of mind you, while the other is a single page that basically tacks on "and their families" to the existing legislation for SCOTUS security.
If it's not obvious why one of those would have a much easier time getting through the legislative process I'm not sure what to tell you.
As for this: The process for moving the bill through Congress is exactly the same, except that one skips the agenda line and jumps right to the top of the To Do list, and the other gets to stand in the "we'll get to you when we get to you" line. And it really has very little to do with the policy details, which only one or two of the sponsors will be familiar with anyway, and everything to do with political priorities in the moment.
TBH I'm more surprised that SC Justices' immediate families weren't already receiving special protection.
The thing that just gets me is that Congress is so swift to act in this case without any actually threatening situation as an inciting incident but AFAIK the Daniel Anderl Judicial Security and Privacy Act, which was introduced in the Senate after a sitting federal judge's son was murdered by a madman and her husband shot in her home in 2020, has not moved since being voted out of committee in December of last year. It's the alacrity in response to this situation and not to that one that is disturbing.
One of these things represents a broad change to managing both public and private records and would make it more difficult to dox SCOTUS and other federal judges, something which people in this thread were broadly supportive of mind you, while the other is a single page that basically tacks on "and their families" to the existing legislation for SCOTUS security.
If it's not obvious why one of those would have a much easier time getting through the legislative process I'm not sure what to tell you.
As for this: The process for moving the bill through Congress is exactly the same, except that one skips the agenda line and jumps right to the top of the To Do list, and the other gets to stand in the "we'll get to you when we get to you" line. And it really has very little to do with the policy details, which only one or two of the sponsors will be familiar with anyway, and everything to do with political priorities in the moment.
AFAIK it had unanimous consent so it should go through a much faster procedure then a normal bill. It seems like the idiots proposed it because of the DC-bubble-types were fainting and I guess no one felt like wasting time on any kind of objections for whatever reason.
So I've seen a report (don't have the tweet right now, but it had the text of the bill in it) that the Louisiana bill that flat out says the state courts can't review the law ALSO has in it that officers of the state should ignore any Federal ruling that seeks to overturn or limit the law in any way. So that's two ways that it is just flat out unconstitutional, because last I heard states don't get to ignore the Federal government.
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HakkekageSpace Whore Academysumma cum laudeRegistered Userregular
TBH I'm more surprised that SC Justices' immediate families weren't already receiving special protection.
The thing that just gets me is that Congress is so swift to act in this case without any actually threatening situation as an inciting incident but AFAIK the Daniel Anderl Judicial Security and Privacy Act, which was introduced in the Senate after a sitting federal judge's son was murdered by a madman and her husband shot in her home in 2020, has not moved since being voted out of committee in December of last year. It's the alacrity in response to this situation and not to that one that is disturbing.
One of these things represents a broad change to managing both public and private records and would make it more difficult to dox SCOTUS and other federal judges, something which people in this thread were broadly supportive of mind you, while the other is a single page that basically tacks on "and their families" to the existing legislation for SCOTUS security.
If it's not obvious why one of those would have a much easier time getting through the legislative process I'm not sure what to tell you.
As for this: The process for moving the bill through Congress is exactly the same, except that one skips the agenda line and jumps right to the top of the To Do list, and the other gets to stand in the "we'll get to you when we get to you" line. And it really has very little to do with the policy details, which only one or two of the sponsors will be familiar with anyway, and everything to do with political priorities in the moment.
AFAIK it had unanimous consent so it should go through a much faster procedure then a normal bill. It seems like the idiots proposed it because of the DC-bubble-types were fainting and I guess no one felt like wasting time on any kind of objections for whatever reason.
The Daylight Savings Time 4Ever bill also passed by unanimous consent, to the buyer's regret of a few Senators who were like, wait what was that bill? Choosing to take a hard look at a bill vs. No need, get it done is a resource allocation choice correlated directly with political urgency and not "well, it's substantively complex....many ramifications to consider...."
I'm starting to think all this is just a gish gallop to tie up opposition resources
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
5-4 argues that it doesnt matter if Roe is a strong decision or not because the people trying to get rid of it dont give a fuck.
I can’t claim any expertise or deep history in reading SC rulings, but the absurd hypocrisy of Alito’s draft was pretty self-apparent from like, page 2, even with no context outside of his own damned words.
He criticizes Roe for a lack of focus and bringing up “irrelevant” history and then immediately devotes dozens of pages to irrelevant pet hobby horses and troll citations, the fucking hack.
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ButtersA glass of some milksRegistered Userregular
Originalism is so fucking stupid and I just can't wrap my head around such a well-educated serious person believing in it.
Originalism is so fucking stupid and I just can't wrap my head around such a well-educated serious person believing in it.
The problem there is you’ve got a lot of assumptions not in evidence, starting with “Well-educated serious person” and finishing with the idea that any of them actually believe in it rather than just twisting it into a justification for whatever they already want.
I'm not coming down on either side of this but I will say that fucking up a Molotov is pretty easy if you're just going by what you've seen in TV or movies.
Especially if you fail to yell, "BORTLES!"
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FencingsaxIt is difficult to get a man to understand, when his salary depends upon his not understandingGNU Terry PratchettRegistered Userregular
edited May 2022
I will say, I probably would have forgotten to break the window first, if it comes down to it.
I also probably would have left the molotov home first try.
Originalism is so fucking stupid and I just can't wrap my head around such a well-educated serious person believing in it.
The fact that Clarence fucking Thomas is probably the most consistent originalist should really tell you everything you need to know about what motivates people. It exists purely to try and reinforce the class system we have if not make it a strict caste system.
Schumer doesn’t live in a gated community with a 3 mile drive in the country. He lives in a nice apartment building next to Prospect Park, convenient for the Q train. I’ve protested there and I’m pretty sure half of Brooklyn has at some point.
Originalism is so fucking stupid and I just can't wrap my head around such a well-educated serious person believing in it.
The fact that Clarence fucking Thomas is probably the most consistent originalist should really tell you everything you need to know about what motivates people. It exists purely to try and reinforce the class system we have if not make it a strict caste system.
If he was a true Originalist he would resign on the grounds that the Founding Fathers would have had conniptions on seeing him on the bench.
Originalism is so fucking stupid and I just can't wrap my head around such a well-educated serious person believing in it.
The fact that Clarence fucking Thomas is probably the most consistent originalist should really tell you everything you need to know about what motivates people. It exists purely to try and reinforce the class system we have if not make it a strict caste system.
If he was a true Originalist he would resign on the grounds that the Founding Fathers would have had conniptions on seeing him on the bench.
You have seen his opinion on Loving right? Or what he has had to say about slavery? I honestly wouldn't be surprised to see him rule that only white people could be appointed to the judiciary. I don't think he would rule himself out of a job but that is honestly the only line I seem him holding on. Dude is straight out of the 19th century.
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HakkekageSpace Whore Academysumma cum laudeRegistered Userregular
Schumer doesn’t live in a gated community with a 3 mile drive in the country. He lives in a nice apartment building next to Prospect Park, convenient for the Q train. I’ve protested there and I’m pretty sure half of Brooklyn has at some point.
I haven't yet but I just moved here, give me a minute
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VanguardBut now the dream is over. And the insect is awake.Registered User, __BANNED USERSregular
Pretty much any park near a train in BK is a protest hub
lawdog is lawdog
tps://twitter.com/nycsouthpaw/status/1523883164044828673
hts://twitter.com/nycsouthpaw/status/15240659368843264
Susan Collins calling the cops on sidewalk chalk that urged her to do something to protect American women’s rights is a pretty good summation of where DC elected officials’ heads are at.
NEWS — I've obtained the police report. It confirms Susan Collins was the complainant.
lawdog is lawdog
tps://twitter.com/nycsouthpaw/status/1523883164044828673
hts://twitter.com/nycsouthpaw/status/15240659368843264
Susan Collins calling the cops on sidewalk chalk that urged her to do something to protect American women’s rights is a pretty good summation of where DC elected officials’ heads are at.
NEWS — I've obtained the police report. It confirms Susan Collins was the complainant.
On one hand. In a vacuum, and in the aftermath of 1/6 where Congress nearly got murdered by a mob of angry terrorists that started as protestors because Trump actively prevented Congress from having adequate security, I can understand why Democrats in Congress would be wary about letting there be a 'both sides' narrative. Security or protection for the individual justices and their families that doesn't disrupt (Constitutionally protected) non-violent protest but is there to prevent violence is the kind of thing most people can see a legitimate argument for.
I can only imagine if someone were to take a shot at a justice even if there is no way they actually could have been successful if Congress is doing anything but bending over backwards to protect the Justices (and even then, to a big degree) we know the DC media is going to bend over backwards to invalidate any arguments about 1/6 because now everyone is doing it. And to some degree looking at the demographics of the violent gun toters in the US and stochastic terrorism, its just as likely this security ends up protecting one of the three good justices and slightly less evil bad justics vs. the five who voted for this atrocity.
On the other hand, this isn't happening in a vacuum. The five Conservative justices gleefully voted with the full knowledge of the anger and upheaval this decision will cause, and that they are inevitably sentencing thousands of innocent - disproportionately poor and minority - women to death. They are celebrating this as the current capstone of a 50 year campaign of terror against healthcare providers and women to deny women the right to make basic decisions about their bodies.
We also know that these police aren't just going to be protecting against actual violence, they are going to be used to crush the aforementioned Constitutionally protected non-violent protest and disruption to these justices lives to insulate them from any consequence of their decision. This bill is bullshit and makes me so angry because it just shows that there are two sets of laws in this country - one for the rich and powerful, and one for everyone else.
Everyone always remembers Wilhoit’s proposition of Conservatism, but rarer to remember what he says about it’s all encompassing nature of the body politic:
There is no such thing as liberalism — or progressivism, etc.
There is only conservatism. No other political philosophy actually exists; by the political analogue of Gresham’s Law, conservatism has driven every other idea out of circulation.
There might be, and should be, anti-conservatism; but it does not yet exist. What would it be? In order to answer that question, it is necessary and sufficient to characterize conservatism. Fortunately, this can be done very concisely.
Conservatism consists of exactly one proposition, to wit:
There must be in-groups whom the law protectes but does not bind, alongside out-groups whom the law binds but does not protect.
There is nothing more or else to it, and there never has been, in any place or time.
For millenia, conservatism had no name, because no other model of polity had ever been proposed. “The king can do no wrong.” In practice, this immunity was always extended to the king’s friends, however fungible a group they might have been. Today, we still have the king’s friends even where there is no king (dictator, etc.). Another way to look at this is that the king is a faction, rather than an individual.
As the core proposition of conservatism is indefensible if stated baldly, it has always been surrounded by an elaborate backwash of pseudophilosophy, amounting over time to millions of pages. All such is axiomatically dishonest and undeserving of serious scrutiny. Today, the accelerating de-education of humanity has reached a point where the market for pseudophilosophy is vanishing; it is, as The Kids Say These Days, tl;dr . All that is left is the core proposition itself — backed up, no longer by misdirection and sophistry, but by violence.
So this tells us what anti-conservatism must be: the proposition that the law cannot protect anyone unless it binds everyone, and cannot bind anyone unless it protects everyone.
Then the appearance arises that the task is to map “liberalism”, or “progressivism”, or “socialism”, or whateverthefuckkindofstupidnoise-ism, onto the core proposition of anti-conservatism.
No, it a’n’t. The task is to throw all those things on the exact same burn pile as the collected works of all the apologists for conservatism, and start fresh. The core proposition of anti-conservatism requires no supplementation and no exegesis. It is as sufficient as it is necessary. What you see is what you get:
The law cannot protect anyone unless it binds everyone; and it cannot bind anyone unless it protects everyone.
Bob Casey flipped his position on codifying Roe today. He's now in favor. Famously one of the few remaining anti-choice Democrats. Also his dad was the one who was suing Planned Parenthood in Casey
Self-righteousness is incompatible with coalition building.
Bob Casey flipped his position on codifying Roe today. He's now in favor. Famously one of the few remaining anti-choice Democrats. Also his dad was the one who was suing Planned Parenthood in Casey
This should have been a red line since at least 2004 for Democrats looking to hold/attain higher office.
Part of the strength of the Republican party is that even if you're running as an anti-choice, anti-lgbt rights candidate in the bluest of blue states at least the party would have your back as you got stomped into the mud because you were holding the line.
Their views are disgusting but having a unified front is good politics. In 2022 we shouldn't have to be vote counting for abortion or other rights beyond one body = one yay.
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Such as, for example, where the fuckity fuck did judicial review come from? Justice Marshall's reasoning establishing the authority of the Court to overturn acts of Congress is itself grounded nowhere in the Constitution, but by sleight of constitutional hand, he aggrandized the power of the Court at the birth of the Republic. The people who drafted the goddamn thing were still alive, and you could have asked them if they ever intended the Court to have that power, or reasoned that by failing to include it in the Constitution, they never intended the Court to have that power. But is anyone (credible) saying that Marbury v. Madison is bad, poorly reasoned, non-constitutional lawmaking? No!! It's been 200+ years. The issue is fucking settled!
This i disagree with. Judicial review is right there in the plain text. It cannot be the case that both the judicial power is vested in the court AND that the constitution is supreme AND that there is no judicial review. If the court is to hear appeals based on the law then either they must decide and strike down laws by the common practice or the Constitution is not above the law of congress and the executive.
The arguments against Marbury at the time were strictly political and not founded in either the text of the constitution or the historical practice of common law as taken from the English. Which, while it did not have a high court striking down primary legislation(until 2015), did have a high court that would strike down acts of ministers when they were inconsistent with the legislation (which would have the place as the constitution would in US law). To suggest that SCOTUS would not have a similar power given that it was explicitly structured on the English courts just with an actual written document to guide the rules, would be ludicrous.
I agree with the rest. But would emphasize that the "very serious legal scholars" are making political arguments. They want to legitimize the opposing argument because SCOTUS would have a legitimacy problem if people on the supreme court were making an illegitimate or political argument.
Bob Casey flipped his position on codifying Roe today. He's now in favor. Famously one of the few remaining anti-choice Democrats. Also his dad was the one who was suing Planned Parenthood in Casey
There was a sit in protest in his office prior to his making this statement
Bob Casey flipped his position on codifying Roe today. He's now in favor. Famously one of the few remaining anti-choice Democrats. Also his dad was the one who was suing Planned Parenthood in Casey
There was a sit in protest in his office prior to his making this statement
They must not have brought any chalk near him. Must be why he actually listened to the majority of his constituents
I’m looking forward to the Chuck Tingle audiobook “Trepidatiously Pounded in the Butt by the Handsome Anthropomorphic Manifestation of Susan Collins’ Chalk Phobia”
Bob Casey flipped his position on codifying Roe today. He's now in favor. Famously one of the few remaining anti-choice Democrats. Also his dad was the one who was suing Planned Parenthood in Casey
I am expecting more of this going forward. When/if Roe v Wade goes down the pressure on people like Casey is going to go up dramatically in a way I think none of them are expecting.
I'm betting a decent (but probably not sufficient) number of Senators will feel a lot less comfortable not bypassing the filibuster on this vote too.
As much as Roe v Wade has been dead in the water for years now I think most people didn't really realise it and even those that did never truly processed it. And now all of those people are.
It'll be interesting to see how this goes in the midterms. If my hunch is right, this might be a bigger bloodbath for the GOP than 2018, when they tried to destroy ACA. In fact, I'll argue that had they succeeded, the incoming bloodbath will still be bigger than what the GOP might have faced (on the hand, with Trump in office, I could see that timeline being one where 2020 wasn't a mixed bag on election results, GOP would have gotten fucked). Anyways, I say this won't go well for the GOP because people will not see it as a legitimate policy passed by an elected government they don't like. They'll see as a tyrannical policy forced upon them by an unelected group elites.
That's the real miscalculation that the GOP made here and what Roberts has being trying to avoid with is bullshit sabotage decisions. SCOTUS only has the power it has because the public largely sees it as non-political (which is horseshit). The moment that bullshit façade falls, is the moment that the court will start getting power stripped from it and conservative tyranny dismantled. There is nothing stopping the other two branches of the government from increasing the size of the bench. The shadow docket only exists because the rest of the government allows it, that can easily be legislated out of existence. They might safe from eating amendments that could really strip down their levels of bullshit, but there are things that can be done that done require amendments. Also killing the myth that the court isn't political, also means that many more people start caring about court appointments, that aren't shitty conservatives and that is yet one more thing that might drive non-conservatives to show up or vote against conservatives, when they might not have cared enough to both with either voting or making sure they were voting against conservatives.
This likely does result in democrats killing the filibuster. Much easier to shut down republican SCOTUS if the democratic minority in the Senate can't block everything on a whim. Even if they don't expand the court and they fucking should. It let's you kill the shadow docket and pump out laws quicker than SCOTUS can hear them, while also being able to run attack ads about republican SCOTUS judges overruling the will of the people.
In my view, government officials should be afraid of the people in the sense that they should be afraid of losing their positions, through impeachment, losing elections, being fired, or whatever, and they should be afraid of the people in the sense that if they abuse their offices they may become persona non grata in polite society and/or become the subject of nonviolent protest. They should not be afraid of the people in the sense that they think they or their family members will be assassinated. I think it would be helpful if people who are angry that the supreme court's family members have been extended security services were specific in which kind of "fear" they're talking about.
It makes sense that people are very upset right now, because the consequences of this decision will be terrible. I believe that a creature weighing a couple pounds in which organ differentiation has just begun is not a person, whereas the adult gestating them is, and the decision about whether to continue pregnancy should between patients and doctors. Things will get worse for a lot of people. Nonetheless, understood as a legal decision, it is not clear to me that it was wrong for the court to overturn Roe. So far, I have never heard anyone say a kind word about the legal reasoning in Roe. Even lawyers who are ardent liberal supporters of abortion rights, and bitter enemies of movement conservatives in the judiciary, like Brian Leiter or Paul Campos, have said that there were clearly colorable legal arguments that Roe was wrongly decided, or, more straightfowardly, that it was just a bad decision with feeble reasoning. Eminent (dead) scholar of constitutional law John Hart Ely, who personally supported abortion, was quoted in the LA Times going so far as to say that Roe not only was not constitutional law, but that it gave very little impression of even trying to be. Instead of praising the actual decision, I've seen some people say they think that the same result could potentially have been reached via a better gender equality argument, but mostly I've seen them emphasize stare decisis. Stare decisis is a valid concern, but it is what you talk about when you don't want to talk about the decision itself and it is also not unqualified.
As far as I can tell as a non-legal observer this is really not among the worst decisions of the court in terms of its grounding in law. Cases like Sebelius, Shelby County, and Janus also rewrote the law in ways that advanced substantive priorities of the conservative movement, but in ways that floated free from credible constitutional arguments. I would be curious though, if there is some accessible legal analysis which I should be reading which would convince me otherwise.
Ok. This kind of analysis drives me up a wall. It's become a sort of received wisdom among the legal elite to signal their intellectual bona fides to jump on the bandwagon that "Roe is, objectively, poorly reasoned -- but" train. It is not. It would have, perhaps, been better if the first case to raise the issue of women's right to an abortion was RBG's championed equal protection case (the US Military woman who faced discharge if she did not terminate her pregnancy) and not the Roe case, which raised the issue under the theory of the privacy right embedded in liberty/substantive due process. But this is difficult to know and the legal analysis that follows is not that Roe should accordingly be overturned because it rests on a less defensible but still colorable constitutional ground, even if that premise was accepted!
The repeated quotations of John Hart Ely -- DEMOCRACY AND DISTRUST's John Hart Ely, who posited that judicial review was only constitutionally defensible where it advances the higher values of majoritarian government while protecting minority rights -- is locked in time and you should not take on faith that this is reflective of how Ely would respond to the current moment. You know who keeps hammering on that quote? The conservative legal movement, and they are rarely ever just talking about Roe. They are talking about the entire suite of fundamental rights recognized as substantive due process. The very debate over when an argument GOOD CONSTITUTIONAL REASONING vs. POOR CONSTITUTIONAL REASONING is a debate about the One Correct Method to interpret the Constitution, which conveniently happens to be the Method that gets you the narrow conservative results desired without any grounding or basis in methods applied by Justices since the Founding.
Such as, for example, where the fuckity fuck did judicial review come from? Justice Marshall's reasoning establishing the authority of the Court to overturn acts of Congress is itself grounded nowhere in the Constitution, but by sleight of constitutional hand, he aggrandized the power of the Court at the birth of the Republic. The people who drafted the goddamn thing were still alive, and you could have asked them if they ever intended the Court to have that power, or reasoned that by failing to include it in the Constitution, they never intended the Court to have that power. But is anyone (credible) saying that Marbury v. Madison is bad, poorly reasoned, non-constitutional lawmaking? No!! It's been 200+ years. The issue is fucking settled!
As for stare decisis. I got at this a little bit before, but the value of consistency is not the only justice-promoting aspect that respect for precedent is supposed to advance. There is also the well-known, well-understood value of reliance, and the overturning of settled expectations that large swaths of the population have organized their lives and futures around. The stability of the law is itself a value, because frequent, seismic changes in the law undermine both respect and deference to the law. Stare decisis is not a promise that things will never change, but is itself a method of approaching issues of law that cautions strongly against changing the law even if its original formulation was incomplete or flawed in some non-fatal way. That is why Casey is not only important for reaffirming Roe (though it rolled back a lot of protections from Roe), but for articulating THE test of stare decisis that remains good law in every federal court:
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case. . . . Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (cleaned up).
In order to get around this, Alito's draft opinion trashes not only the reasoning in Roe but the above standard in Casey. Is there anything actually substantively incorrect with the guidance outlined above in Casey for when a case should be overturned? Or is it that by cautioning courts to examine "prudential and pragmatic considerations," Courts are no longer doing law? But why shouldn't Courts consider the effects of their rules, not just at the time they were declared but at the time they are reexamined? Where does it say THAT in the Constitution? Is it not an advancement of the higher values of majoritarian democracy implicitly embedded within the entire Constitution to consider those effects? The kind of thing that Ely holds is the highest and best value of the Judiciary's function?
When you talk to Sophisticated Legal Elites, what you will get is the same story 90% of the time: "The outcome is good, but I would have done the reasoning better." Bully for you then. Constitutional arguments exist on a spectrum of defensibility and the reaffirmation of the reasoning in Roe with respect to other substantive due process rights reaffirms their viability as constitutional analysis. Pissing all over the fact that it doesn't say "abortion" right there in the text of the 14th Amendment is the backed-in constitutional argument of those seeking to redefine what constitutional analysis IS and what it ISN'T. But that conversation is itself subject to reevaluation and there is nothing in the constitution that says, Ye Shall Interpret Me By This Manner, and No Other.
Which is why the application of the Glucksberg test as the only standard to evaluate unenumerated rights is such a blaring alarm siren for all kinds of rights.
One of the particular benefits of a legal education is the requirement to examine situations from multiple, often contradictory lenses. So-called activist judges (meaning the conservatives) have a nasty habit of jettisoning this virtue, and instead apply rigid interpretive frameworks to justify their pre-existing policy preference.
Any decent half-decent law student would apply multiple possible standards for unenumerated rights on a fourteenth amendments final. Given the stare decisis considerations and conflicting outcomes these standards yield, the “correct” answer on the exam would probably be to uphold Roe and its progeny since nothing has changed in society or law to justify overturning the previous decision.
Believing this doesn’t make me an advocate for endless maintenance of the status quo. Decisions like Brown correctly recognized that the “separate but equal” standard was not workable due to real world experience. Thus, interpretive frameworks supporting stare decisis in Brown were proven to be in conflict with reality.
The decision in Dobbs never grapples with these questions, because to do so would yield an answer contrary to Alito’s desired outcome. For all of my quibbles with Roe, it at least tries to grapple with reality a little bit. Alito’s huffing and puffing about Roe’s defects are a pathetic joke since his reasoning is much more blatantly defective.
So tut-tuting idiots have been bringing up a federal law claiming to make it illegal to protest judges. This is on shaky legal ground to say the least. First amendment and all that, not to mention the tiny problem of all the rulings against laws protecting health clinics..
NPR did a little digging annnd of course it is.
NPR reporter
Until this week, I had rarely heard about the federal law that makes it a crime to picket outside a judge's home (18 USC § 1507).
I was curious about its origins.
It turns out it was passed as part of the "Internal Security Act of 1950" - a controversial McCarthy-era law.
Posts
Courts do not like changing those sorts of processes.
Riling up outrage over the leak as opposed to the contents of the leak makes as much sense as any for the motive behind this leak.
I absolutely would not be surprised if they were just sending word documents or circulating paper copies with no identifying info on them.
Such violent threat! Someone might have SEEN THAT CHALK BEFORE IT WASHED AWAY IN RAIN OH NO
https://bangordailynews.com/2022/05/09/news/bangor/pro-abortion-chalk-message-appears-on-susan-collins-bangor-sidewalk/
Have some empathy, people. Any reference to a large cat is understandably very triggering to a member of the Face Eating Leopard party, and whoever who chose to confront her with striped orange(ish) shapes clearly knew that.
The lines are being crossed by the oppressors and everyone else is just trying to fucking exist, which naturally involves using any means available
Ok. This kind of analysis drives me up a wall. It's become a sort of received wisdom among the legal elite to signal their intellectual bona fides to jump on the bandwagon that "Roe is, objectively, poorly reasoned -- but" train. It is not. It would have, perhaps, been better if the first case to raise the issue of women's right to an abortion was RBG's championed equal protection case (the US Military woman who faced discharge if she did not terminate her pregnancy) and not the Roe case, which raised the issue under the theory of the privacy right embedded in liberty/substantive due process. But this is difficult to know and the legal analysis that follows is not that Roe should accordingly be overturned because it rests on a less defensible but still colorable constitutional ground, even if that premise was accepted!
The repeated quotations of John Hart Ely -- DEMOCRACY AND DISTRUST's John Hart Ely, who posited that judicial review was only constitutionally defensible where it advances the higher values of majoritarian government while protecting minority rights -- is locked in time and you should not take on faith that this is reflective of how Ely would respond to the current moment. You know who keeps hammering on that quote? The conservative legal movement, and they are rarely ever just talking about Roe. They are talking about the entire suite of fundamental rights recognized as substantive due process. The very debate over when an argument GOOD CONSTITUTIONAL REASONING vs. POOR CONSTITUTIONAL REASONING is a debate about the One Correct Method to interpret the Constitution, which conveniently happens to be the Method that gets you the narrow conservative results desired without any grounding or basis in methods applied by Justices since the Founding.
Such as, for example, where the fuckity fuck did judicial review come from? Justice Marshall's reasoning establishing the authority of the Court to overturn acts of Congress is itself grounded nowhere in the Constitution, but by sleight of constitutional hand, he aggrandized the power of the Court at the birth of the Republic. The people who drafted the goddamn thing were still alive, and you could have asked them if they ever intended the Court to have that power, or reasoned that by failing to include it in the Constitution, they never intended the Court to have that power. But is anyone (credible) saying that Marbury v. Madison is bad, poorly reasoned, non-constitutional lawmaking? No!! It's been 200+ years. The issue is fucking settled!
As for stare decisis. I got at this a little bit before, but the value of consistency is not the only justice-promoting aspect that respect for precedent is supposed to advance. There is also the well-known, well-understood value of reliance, and the overturning of settled expectations that large swaths of the population have organized their lives and futures around. The stability of the law is itself a value, because frequent, seismic changes in the law undermine both respect and deference to the law. Stare decisis is not a promise that things will never change, but is itself a method of approaching issues of law that cautions strongly against changing the law even if its original formulation was incomplete or flawed in some non-fatal way. That is why Casey is not only important for reaffirming Roe (though it rolled back a lot of protections from Roe), but for articulating THE test of stare decisis that remains good law in every federal court:
In order to get around this, Alito's draft opinion trashes not only the reasoning in Roe but the above standard in Casey. Is there anything actually substantively incorrect with the guidance outlined above in Casey for when a case should be overturned? Or is it that by cautioning courts to examine "prudential and pragmatic considerations," Courts are no longer doing law? But why shouldn't Courts consider the effects of their rules, not just at the time they were declared but at the time they are reexamined? Where does it say THAT in the Constitution? Is it not an advancement of the higher values of majoritarian democracy implicitly embedded within the entire Constitution to consider those effects? The kind of thing that Ely holds is the highest and best value of the Judiciary's function?
When you talk to Sophisticated Legal Elites, what you will get is the same story 90% of the time: "The outcome is good, but I would have done the reasoning better." Bully for you then. Constitutional arguments exist on a spectrum of defensibility and the reaffirmation of the reasoning in Roe with respect to other substantive due process rights reaffirms their viability as constitutional analysis. Pissing all over the fact that it doesn't say "abortion" right there in the text of the 14th Amendment is the backed-in constitutional argument of those seeking to redefine what constitutional analysis IS and what it ISN'T. But that conversation is itself subject to reevaluation and there is nothing in the constitution that says, Ye Shall Interpret Me By This Manner, and No Other.
NNID: Hakkekage
As for this: The process for moving the bill through Congress is exactly the same, except that one skips the agenda line and jumps right to the top of the To Do list, and the other gets to stand in the "we'll get to you when we get to you" line. And it really has very little to do with the policy details, which only one or two of the sponsors will be familiar with anyway, and everything to do with political priorities in the moment.
NNID: Hakkekage
AFAIK it had unanimous consent so it should go through a much faster procedure then a normal bill. It seems like the idiots proposed it because of the DC-bubble-types were fainting and I guess no one felt like wasting time on any kind of objections for whatever reason.
The Daylight Savings Time 4Ever bill also passed by unanimous consent, to the buyer's regret of a few Senators who were like, wait what was that bill? Choosing to take a hard look at a bill vs. No need, get it done is a resource allocation choice correlated directly with political urgency and not "well, it's substantively complex....many ramifications to consider...."
NNID: Hakkekage
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I can’t claim any expertise or deep history in reading SC rulings, but the absurd hypocrisy of Alito’s draft was pretty self-apparent from like, page 2, even with no context outside of his own damned words.
He criticizes Roe for a lack of focus and bringing up “irrelevant” history and then immediately devotes dozens of pages to irrelevant pet hobby horses and troll citations, the fucking hack.
It’s because originalists decide what they believe and then go looking for a legal standard that supports that belief.
The problem there is you’ve got a lot of assumptions not in evidence, starting with “Well-educated serious person” and finishing with the idea that any of them actually believe in it rather than just twisting it into a justification for whatever they already want.
Especially if you fail to yell, "BORTLES!"
I also probably would have left the molotov home first try.
The fact that Clarence fucking Thomas is probably the most consistent originalist should really tell you everything you need to know about what motivates people. It exists purely to try and reinforce the class system we have if not make it a strict caste system.
Schumer doesn’t live in a gated community with a 3 mile drive in the country. He lives in a nice apartment building next to Prospect Park, convenient for the Q train. I’ve protested there and I’m pretty sure half of Brooklyn has at some point.
If he was a true Originalist he would resign on the grounds that the Founding Fathers would have had conniptions on seeing him on the bench.
You have seen his opinion on Loving right? Or what he has had to say about slavery? I honestly wouldn't be surprised to see him rule that only white people could be appointed to the judiciary. I don't think he would rule himself out of a job but that is honestly the only line I seem him holding on. Dude is straight out of the 19th century.
I haven't yet but I just moved here, give me a minute
NNID: Hakkekage
Maine had it's chance and it blew it.
Everyone always remembers Wilhoit’s proposition of Conservatism, but rarer to remember what he says about it’s all encompassing nature of the body politic:
This should have been a red line since at least 2004 for Democrats looking to hold/attain higher office.
Part of the strength of the Republican party is that even if you're running as an anti-choice, anti-lgbt rights candidate in the bluest of blue states at least the party would have your back as you got stomped into the mud because you were holding the line.
Their views are disgusting but having a unified front is good politics. In 2022 we shouldn't have to be vote counting for abortion or other rights beyond one body = one yay.
Come Overwatch with meeeee
This i disagree with. Judicial review is right there in the plain text. It cannot be the case that both the judicial power is vested in the court AND that the constitution is supreme AND that there is no judicial review. If the court is to hear appeals based on the law then either they must decide and strike down laws by the common practice or the Constitution is not above the law of congress and the executive.
The arguments against Marbury at the time were strictly political and not founded in either the text of the constitution or the historical practice of common law as taken from the English. Which, while it did not have a high court striking down primary legislation(until 2015), did have a high court that would strike down acts of ministers when they were inconsistent with the legislation (which would have the place as the constitution would in US law). To suggest that SCOTUS would not have a similar power given that it was explicitly structured on the English courts just with an actual written document to guide the rules, would be ludicrous.
I agree with the rest. But would emphasize that the "very serious legal scholars" are making political arguments. They want to legitimize the opposing argument because SCOTUS would have a legitimacy problem if people on the supreme court were making an illegitimate or political argument.
There was a sit in protest in his office prior to his making this statement
They must not have brought any chalk near him. Must be why he actually listened to the majority of his constituents
I am expecting more of this going forward. When/if Roe v Wade goes down the pressure on people like Casey is going to go up dramatically in a way I think none of them are expecting.
I'm betting a decent (but probably not sufficient) number of Senators will feel a lot less comfortable not bypassing the filibuster on this vote too.
As much as Roe v Wade has been dead in the water for years now I think most people didn't really realise it and even those that did never truly processed it. And now all of those people are.
That's the real miscalculation that the GOP made here and what Roberts has being trying to avoid with is bullshit sabotage decisions. SCOTUS only has the power it has because the public largely sees it as non-political (which is horseshit). The moment that bullshit façade falls, is the moment that the court will start getting power stripped from it and conservative tyranny dismantled. There is nothing stopping the other two branches of the government from increasing the size of the bench. The shadow docket only exists because the rest of the government allows it, that can easily be legislated out of existence. They might safe from eating amendments that could really strip down their levels of bullshit, but there are things that can be done that done require amendments. Also killing the myth that the court isn't political, also means that many more people start caring about court appointments, that aren't shitty conservatives and that is yet one more thing that might drive non-conservatives to show up or vote against conservatives, when they might not have cared enough to both with either voting or making sure they were voting against conservatives.
This likely does result in democrats killing the filibuster. Much easier to shut down republican SCOTUS if the democratic minority in the Senate can't block everything on a whim. Even if they don't expand the court and they fucking should. It let's you kill the shadow docket and pump out laws quicker than SCOTUS can hear them, while also being able to run attack ads about republican SCOTUS judges overruling the will of the people.
battletag: Millin#1360
Nice chart to figure out how honest a news source is.
Which is why the application of the Glucksberg test as the only standard to evaluate unenumerated rights is such a blaring alarm siren for all kinds of rights.
One of the particular benefits of a legal education is the requirement to examine situations from multiple, often contradictory lenses. So-called activist judges (meaning the conservatives) have a nasty habit of jettisoning this virtue, and instead apply rigid interpretive frameworks to justify their pre-existing policy preference.
Any decent half-decent law student would apply multiple possible standards for unenumerated rights on a fourteenth amendments final. Given the stare decisis considerations and conflicting outcomes these standards yield, the “correct” answer on the exam would probably be to uphold Roe and its progeny since nothing has changed in society or law to justify overturning the previous decision.
Believing this doesn’t make me an advocate for endless maintenance of the status quo. Decisions like Brown correctly recognized that the “separate but equal” standard was not workable due to real world experience. Thus, interpretive frameworks supporting stare decisis in Brown were proven to be in conflict with reality.
The decision in Dobbs never grapples with these questions, because to do so would yield an answer contrary to Alito’s desired outcome. For all of my quibbles with Roe, it at least tries to grapple with reality a little bit. Alito’s huffing and puffing about Roe’s defects are a pathetic joke since his reasoning is much more blatantly defective.
NPR did a little digging annnd of course it is.
NPR reporter