Yes. Certain registered non-profits, the category that has chosen to be disallowed from engaging in politics in exchange for tax privileges. This isn't the government picking some organizations and declaring that they're not allowed to make campaign ads, and the fact that you don't see a difference between that actual (hypothetical) discrimination, and people choosing to make an organization that isn't allowed to spend money in politics three months before a campaign and then doing exactly that and whining when they get in trouble, worries me greatly.
Wait a sec... you're shifting the goalposts here, and drawing some imbalanced comparisons. The relationship whereby a PAC cannot run ads three months before an election is not one of mutually agreed-upon benefit between PAC and government. It is a flat-out restriction on freedom of speech without any other balancing legal principal other than the government doesn't like too much spending on political ads. When they organized as a PAC, they did not do so because "yea!, now we don't get to run ads before an election!" A church does register as such because yea! no taxes. Not the same thing. Not sure what churches really ahve to do with this. As I said, I'd rather they be taxed and free to speak.
I really don't give a shit why they organized as a PAC, but my point is that when they did so they accepted the limitations placed upon them. They were not singled out by the government and treated differently from other PACs, there was no discrimination, simply consequences when they broke the law that applied to all similar organizations.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
when you say "statutory construction" do you also mean interpretation of the constitution??
because on a lot of these big cases, it's not the statute that's in question, it's whether the constitutional test when applied falls one way or the other (or such as in the case of gay marriage, which test applies in the first place - you can't just "apply a statute" to determine that, it's going to be based on your understanding of homosexuality)
as a matter of the history of the court, there has always been a process where the court pursues some activist outlook, and then tries to mitigate the precedent of activism, by strangling the new jurisprudence in fairly thin arguments that it was always really in the US constitution - appealing to some higher principle under which the old and new would be consistent
this wasn't an unambiguous slide in a gloriously enlightened direction; both the creation of the Lochner era and its eventual reversal did this
You could argue that this dates back to Marbury v. Madison. The role of the Court is left vague in the Constitution, which has always given it great leeway in how it pursues its mandate.
One of the first laws ever passed, the Judiciary Act of 1789, did in fact lay out some basic roles of the Courts, including the Supreme Court's function as the decider of constituionality of other laws. Doesn't quite say "judicial review" but it is there. Also, Marbury was in 1803. I mean, it's not like it came along generations after the Constitution was written. This was all arguably in the era of formation for the U.S. government.
Not only that, but even before Marbury this was pretty much how all state judiciaries operated with respect to their state constitutions, and dates back to how England had once operated. Going with the whole "intent" thing, it's pretty safe to say that this was what the constitution was saying when Article III established a supereme court.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
when you say "statutory construction" do you also mean interpretation of the constitution??
because on a lot of these big cases, it's not the statute that's in question, it's whether the constitutional test when applied falls one way or the other (or such as in the case of gay marriage, which test applies in the first place - you can't just "apply a statute" to determine that, it's going to be based on your understanding of homosexuality)
and that is not so straight forward!
I agree completely. Constitutional interpretation is a messier business, and I don't agree with Scalia on it at all (and even less so with Thomas). I have been talking about statutory cases (I thought I was pretty clear on that).
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ultimately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
hmm. there's quite a chunk of jurisprudence, in this manner, that invoke the relatively narrow window created by the 1960s court, which openly asserted that it was acting only because of the desperation of the situation on the ground, and the utter imbecility of the legislatures
but outside of this the court tends to veer away from directly participating in political disputes, favouring technicalities and funky compromise arguments constructed to avoid creating precedent (cough PPACA cough). I am not aware of any tradition of invoking the reality of judicial activism to justify activism
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
when you say "statutory construction" do you also mean interpretation of the constitution??
because on a lot of these big cases, it's not the statute that's in question, it's whether the constitutional test when applied falls one way or the other (or such as in the case of gay marriage, which test applies in the first place - you can't just "apply a statute" to determine that, it's going to be based on your understanding of homosexuality)
and that is not so straight forward!
I agree completely. Constitutional interpretation is a messier business, and I don't agree with Scalia on it at all (and even less so with Thomas). I have been talking about statutory cases (I thought I was pretty clear on that).
but some of the most important stuff they do is constitutional interpretation, and that is where personal background really comes into play. it's not useless and should not be excised, as you seemed to suggest...
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Sir Landsharkresting shark faceRegistered Userregular
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Sir Landshark on
Please consider the environment before printing this post.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
the situation on the ground is no longer desperate
so scotus gets to decide whether it wants to remain as a court of civil rights. the argument in the 1960s was that this would be unrolled as soon as civil equality came along. but in the intervening decades americans have come to assign SCOTUS, rather than legislatures or constitutional amendment, as the ideal arena to wage civil rights disputes
it might just punt and let the status quo persist, there is plenty of space for it to do so in this particular case
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I would like some money because these are artisanal nuggets of wisdom philistine.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
At this point, I don't see how the SCOTUS is fundamentally not an extension of Congress and it's political system on any subject that really matters.
When who appoints the SCOTUS justice becomes a huge concern, you are basically admitting these people are party members.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
Scalia is friends with everyone. But they are all generally friends, because they put their differences aside. The senate used to do that to, in most cases. . .
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ultimately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
hmm. there's quite a chunk of jurisprudence, in this manner, that invoke the relatively narrow window created by the 1960s court, which openly asserted that it was acting only because of the desperation of the situation on the ground, and the utter imbecility of the legislatures
but outside of this the court tends to veer away from directly participating in political disputes, favouring technicalities and funky compromise arguments constructed to avoid creating precedent (cough PPACA cough). I am not aware of any tradition of invoking the reality of judicial activism to justify activism
It's been awhile since I read the historiography, but the normal status quo for the Court is to follow the general will of the legislature and the voting public, and this includes the Warren Court. The Courts that have actively worked against the will of the people in the manner Scalia suggested are extremely rare.
And that is well within the tradition of Madison. As Andrew Jackson so elegantly noted, when push comes to serve the Supreme Court does not have an army or a checkbook.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
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Sir Landsharkresting shark faceRegistered Userregular
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
Yes. Obamacare was largely upheld thanks to a Republican appointee. Didn't see any House or Senate Republicans voting for it nor did I see any Republican presidential candidates that didn't want a full repeal.
Tons of other decisions that weren't 5-4 along party lines.
Just because Scalia and Thomas exist doesn't mean the entire Court is nearly as partisan as the other branches.
Sir Landshark on
Please consider the environment before printing this post.
Scalia is friends with everyone. But they are all generally friends, because they put their differences aside. The senate used to do that to, in most cases. . .
Again, it's not important that he's friends with everyone.
What's important is that when his son's law firm was presenting a case before the Court, he didn't have the fucking integrity to recuse his sorry ass.
Making the decision that feels right is not the hard choice. The hard choice is making the decision that feels wrong, and telling congress that until they fix their law, the wrong result will keep occurring, because that's what they wrote.
Somehow I feel that Earl Warren's decision in Brown v. Board of Education was in no way an easy choice.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
I agree. There are a number of clearly understood maxims of statutory interpretation, and following them diligently yields very consistent results, the results may just run against what the court thinks was intended. I would argue that a court which followed these maxims consistently, and damn the consequences, would be the most effective tool possible to force congress to actually pay attention to drafting.
Seriously, you guys have no idea how TERRIBLE they are at drafting. Almost nothing is easy or straightforward, and there's really no reason or excuse for it.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
I agree. There are a number of clearly understood maxims of statutory interpretation, and following them diligently yields very consistent results, the results may just run against what the court thinks was intended. I would argue that a court which followed these maxims consistently, and damn the consequences, would be the most effective tool possible to force congress to actually pay attention to drafting.
Seriously, you guys have no idea how TERRIBLE they are at drafting. Almost nothing is easy or straightforward, and there's really no reason or excuse for it.
You've argued this three times now, and you keep missing my response that there is no tool effective enough to force Congress to do anything. Witness sequestration. All your method does is hurt people.
but this rather undermines any noble intent to uphold the law 'as written'. The court always asserts, after the fact, that it is upholding the law 'as written', so this is pretty meaningless.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
Most people in the House and Senate don't even talk to each other anymore. Next time you swing through D.C., contact your Member's office for a Capitol tour and take a few minutes to sit in the gallery over the Senate chamber. It's frequently a tomb in there; occasionally someone heads down to read a speech, but he's giving it to a conspicuously empty chamber for the benefit of the CSPAN cameras.
As much as people rightfully give Clarence Thomas shit for his refusal to engage during oral arguments, if one accepts the aphorism that 90% of life is just showing up, he's still doing about 85% more than your Representative most days. :?
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
Most people in the House and Senate don't even talk to each other anymore. Next time you swing through D.C., contact your Member's office for a Capitol tour and take a few minutes to sit in the gallery over the Senate chamber. It's frequently a tomb in there; occasionally someone heads down to read a speech, but he's giving it to a conspicuously empty chamber for the benefit of the CSPAN cameras.
As much as people rightfully give Clarence Thomas shit for his refusal to engage during oral arguments, if one accepts the aphorism that 90% of life is just showing up, he's still doing about 85% more than your Representative most days. :?
Hey, they're hard at work raising money to fight off the barrage of money Citizens United created.
Self-righteousness is incompatible with coalition building.
hell, the creation of judicial review at all is, you may notice, completely absent from constitution and legislation. it just got wished into existence out of thin air by the court
I agree 100%. The argument that I am making in this thread is about what the role of the court should be, acknowledging that there are competing views, and that the court itself is ulitmately the final arbiter on what it's role should be (absent an actual conflict with the executive branch over the enforcement of a judgement, which, ironically is precisely what Marbury was meant to avoid).
(Of course, since I am SKFM, autocorrect went to change Marbury to Burberry)
that would undermine the fiction that it is an apolitical arbitrator that continually reveals higher principle
and that fiction is desperately important to the legitimacy of the court
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
Well of course, but it's still far less partisan than our other branches of government.
Really? Really?
Really?
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
Most people in the House and Senate don't even talk to each other anymore. Next time you swing through D.C., contact your Member's office for a Capitol tour and take a few minutes to sit in the gallery over the Senate chamber. It's frequently a tomb in there; occasionally someone heads down to read a speech, but he's giving it to a conspicuously empty chamber for the benefit of the CSPAN cameras.
As much as people rightfully give Clarence Thomas shit for his refusal to engage during oral arguments, if one accepts the aphorism that 90% of life is just showing up, he's still doing about 85% more than your Representative most days. :?
That's been going on for years, and it actually isn't as ugly or stupid as it appears.
Congressmen making those speeches are actually just using the chambers as a backdrop for video that they send to local news organizations (and these days social media and Internet outlets). It's not meant to be a speech to a group and never has been. It's just nicer to give the speech in the Senate or House chambers visually than in their office.
Not having the other members show up for those is no more odd than them not showing up for photo shoots or campaign videos.
I have argued before that your country's modern liberal-democratic-capitalist-regulatory-welfare-state is, as a certain variety of Tenther might insist, wholly inconsistent with its constitutional pretensions and is built on a repeated layers of kludges and hacks
of course, I think the logical response is: then so much the worse for constitutional pretensions
I have argued before that your country's modern liberal-democratic-capitalist-regulatory-welfare-state is, as a certain variety of Tenther might insist, wholly inconsistent with its constitutional pretensions and is built on a repeated layers of kludges and hacks
of course, I think the logical response is: then so much the worse for constitutional pretensions
The real world result of this has been a steady expansion of the power of the Executive over the 20th century. Unless something major changes, I can fully see a future America where we have a de facto elected dictator and a rump legislature and court system. That's not a good outcome, but it is where we are headed. And frankly, it seems to be how the average American already thinks the system works.
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I really don't give a shit why they organized as a PAC, but my point is that when they did so they accepted the limitations placed upon them. They were not singled out by the government and treated differently from other PACs, there was no discrimination, simply consequences when they broke the law that applied to all similar organizations.
? I don't see how taking a strict technical approach to statutory construction would undermine the legitimacy of the court. There are many cases in the modern era that were decided on this basis, and they never raise an outcry.
when you say "statutory construction" do you also mean interpretation of the constitution??
because on a lot of these big cases, it's not the statute that's in question, it's whether the constitutional test when applied falls one way or the other (or such as in the case of gay marriage, which test applies in the first place - you can't just "apply a statute" to determine that, it's going to be based on your understanding of homosexuality)
and that is not so straight forward!
One of the first laws ever passed, the Judiciary Act of 1789, did in fact lay out some basic roles of the Courts, including the Supreme Court's function as the decider of constituionality of other laws. Doesn't quite say "judicial review" but it is there. Also, Marbury was in 1803. I mean, it's not like it came along generations after the Constitution was written. This was all arguably in the era of formation for the U.S. government.
Not only that, but even before Marbury this was pretty much how all state judiciaries operated with respect to their state constitutions, and dates back to how England had once operated. Going with the whole "intent" thing, it's pretty safe to say that this was what the constitution was saying when Article III established a supereme court.
I agree completely. Constitutional interpretation is a messier business, and I don't agree with Scalia on it at all (and even less so with Thomas). I have been talking about statutory cases (I thought I was pretty clear on that).
As we can see right now where I think most people find the idea that the court isn't highly political to be laughable.
hmm. there's quite a chunk of jurisprudence, in this manner, that invoke the relatively narrow window created by the 1960s court, which openly asserted that it was acting only because of the desperation of the situation on the ground, and the utter imbecility of the legislatures
but outside of this the court tends to veer away from directly participating in political disputes, favouring technicalities and funky compromise arguments constructed to avoid creating precedent (cough PPACA cough). I am not aware of any tradition of invoking the reality of judicial activism to justify activism
but some of the most important stuff they do is constitutional interpretation, and that is where personal background really comes into play. it's not useless and should not be excised, as you seemed to suggest...
Well of course, but it's still far less partisan than our other branches of government.
The fact that the court always claims, after the fact, to uphold the law 'as written' does not mean that they in fact have always done so. The fact that I always claim to grade my students on their merits does not mean I have always done so. And the fact that the questions on which the court rules are squishy also does not mean that there's no such thing as ruling on the merits. The grades my students deserve are often squishy, but that doesn't mean there isn't a way to grade them on the merits. Etc.
The legal realist style positions may be an accurate description of how some, especially some politically charged, decisions are and have been made. But as a normative theory--one that claims to be the only real possibility--it's pretty flimsy.
the situation on the ground is no longer desperate
so scotus gets to decide whether it wants to remain as a court of civil rights. the argument in the 1960s was that this would be unrolled as soon as civil equality came along. but in the intervening decades americans have come to assign SCOTUS, rather than legislatures or constitutional amendment, as the ideal arena to wage civil rights disputes
it might just punt and let the status quo persist, there is plenty of space for it to do so in this particular case
Really? Really?
Really?
pleasepaypreacher.net
I agree with that. That's not saying there aren't politics at play, but it's not like one group of Justices refuses completely to work with the other...
pleasepaypreacher.net
Oddly enough, Kagan and Scalia are hunting buddies.
pleasepaypreacher.net
When who appoints the SCOTUS justice becomes a huge concern, you are basically admitting these people are party members.
Has there been one in the Roberts court? I'm honestly asking I have no idea.
pleasepaypreacher.net
It's been awhile since I read the historiography, but the normal status quo for the Court is to follow the general will of the legislature and the voting public, and this includes the Warren Court. The Courts that have actively worked against the will of the people in the manner Scalia suggested are extremely rare.
And that is well within the tradition of Madison. As Andrew Jackson so elegantly noted, when push comes to serve the Supreme Court does not have an army or a checkbook.
my point is that "the law as written" is so flimsy a standard that "the court should uphold the law as written" doesn't actually place any restrictions
Yes. Obamacare was largely upheld thanks to a Republican appointee. Didn't see any House or Senate Republicans voting for it nor did I see any Republican presidential candidates that didn't want a full repeal.
Tons of other decisions that weren't 5-4 along party lines.
Just because Scalia and Thomas exist doesn't mean the entire Court is nearly as partisan as the other branches.
Thomas tends to have a bit more intellectual honesty, even if you disagree with his doctrine.
Again, it's not important that he's friends with everyone.
What's important is that when his son's law firm was presenting a case before the Court, he didn't have the fucking integrity to recuse his sorry ass.
http://www.forbes.com/sites/danielfisher/2012/06/01/so-much-for-politics-more-than-half-of-supreme-court-decisions-unanimous/#_=1362166366468&count=none&id=twitter-widget-0&lang=en&original_referer=&size=m&text=So Much For Politics: More Than Half Of Supreme Court Decisions Unanimous - Forbes&url=http://onforb.es/K27W8W
There's a link to SCOTUS blog in there if you don't trust Forbes. Apologies for the giant link.
in a very "you should have done this via constitutional amendment or legislation, grumble grumble" way that may strike you as familiar, ho ho ho ho ho
Somehow I feel that Earl Warren's decision in Brown v. Board of Education was in no way an easy choice.
This seems to me to be a claim that needs substantially more defense than I've ever seen it receive. All sorts of things require balancing many competing considerations in a delicate way, one on which there is no perfectly general agreement--hell, weather prediction does. But that doesn't mean we can't predict the weather. We tend to be pretty okay at it.
I agree. There are a number of clearly understood maxims of statutory interpretation, and following them diligently yields very consistent results, the results may just run against what the court thinks was intended. I would argue that a court which followed these maxims consistently, and damn the consequences, would be the most effective tool possible to force congress to actually pay attention to drafting.
Seriously, you guys have no idea how TERRIBLE they are at drafting. Almost nothing is easy or straightforward, and there's really no reason or excuse for it.
You've argued this three times now, and you keep missing my response that there is no tool effective enough to force Congress to do anything. Witness sequestration. All your method does is hurt people.
well weather eventually happens, so you have a third party that, in an unambiguously fair fashion, tests your ability to balance considerations. the creativity of the human mind is endless, but it is still insufficient for convincing the North Wind to reconsider.
the equivalent in SCOTUS is the court, a century later, eventually denouncing Lochner as unjustified. regrettably this is a poor way to calibrate relative approaches to new jurisprudence, not least due to the small number of datapoints
when all sides claim that their interpretation upholds the law 'as written', adding "the winner is the one that upholds the law as written" as a criterion adds nothing. and, identically, after the champion has seen off all the other contenders, saying "it won because it upheld the law as written" adds nothing.
Most people in the House and Senate don't even talk to each other anymore. Next time you swing through D.C., contact your Member's office for a Capitol tour and take a few minutes to sit in the gallery over the Senate chamber. It's frequently a tomb in there; occasionally someone heads down to read a speech, but he's giving it to a conspicuously empty chamber for the benefit of the CSPAN cameras.
As much as people rightfully give Clarence Thomas shit for his refusal to engage during oral arguments, if one accepts the aphorism that 90% of life is just showing up, he's still doing about 85% more than your Representative most days. :?
Hey, they're hard at work raising money to fight off the barrage of money Citizens United created.
That's been going on for years, and it actually isn't as ugly or stupid as it appears.
Congressmen making those speeches are actually just using the chambers as a backdrop for video that they send to local news organizations (and these days social media and Internet outlets). It's not meant to be a speech to a group and never has been. It's just nicer to give the speech in the Senate or House chambers visually than in their office.
Not having the other members show up for those is no more odd than them not showing up for photo shoots or campaign videos.
of course, I think the logical response is: then so much the worse for constitutional pretensions
Far from the truth, and that's even before considering the many commonly accepted canons of construction that contradict each other.
The real world result of this has been a steady expansion of the power of the Executive over the 20th century. Unless something major changes, I can fully see a future America where we have a de facto elected dictator and a rump legislature and court system. That's not a good outcome, but it is where we are headed. And frankly, it seems to be how the average American already thinks the system works.