dajo9 said:
wifeisafurd said:
Anarchistbear said:
OaktownBear said:
Anarchistbear said:
The Supreme Court is an authoritarian institution staffed by the hacks of the two parties to do their bidding. The idea that our rights are surrendered to nine people with no accountability is astonishing enough but the idea that these old fogies are peeing into the 18th century mind to tell us what they think about corporate speech and gay wedding cakes is not only astonishing but a mind blowing surrender of individual freedom to autocracy.
The Court has always been reactionary and trampled more rights than they recognized. Although the Warren Court is heralded as the great facilitator of black equality, those rights were won in the street ( MLK) and by the people (LBJ)
Don't reform it. End or neuter it.
This is idiotic and a total misunderstanding of the role of the court. As I said elsewhere, without the Supreme Court as a back stop, the bill of rights becomes a mere suggestion that no one has to actually follow.
It is extremely annoying how stupid Americans are about their own government. Almost all of the things that the Supreme Court gets blamed for are not primarily their fault. They are laws that were passed by state or federal government.
The Supreme Court will never make abortion illegal. They only say whether or not the states can do that. If it were not for the Supreme Court, abortion would have been illegal in much of the country for decades.
The Supreme Court will never make gay marriage illegal. They only say whether or not the states can do that. If it were not for the Supreme Court, much of the country would not have gay marriage.
The Supreme Court never made segregation law of the land. For too long it did not stop states from making it the law of the land. The Supreme Court was the first branch of government to end segregation and it was years before the Civil Rights Act was then passed.
I may not be fond of the current view of Search and Seizure rules by the court, but they don't set the law. They set the floor. Without the court, many places would be far worse. Communities can on their own have rules and laws that are more protective than what the court provides, and many do. But they can't do worse than the court. The court does no harm.
The Court's role is to REVIEW LAWS THAT ARE PASSED BY CONGRESS/WHITE HOUSE OR THE STATES. In almost every case IT IS THOSE LAWS THAT ARE THE PROBLEM. The Supreme Court didn't create segregation. States did. The Supreme Court never made segregation the law of the land or made segregation worse. For a long time it did not overturn those laws, but it was the laws themselves that were the fundamental problem and the Supreme Court was the only avenue to overturn them.
As for the ACA, the Democrats could have expanded Medicare to cover everyone and the Supreme Court would have nothing to say about it. Because the hoops they jumped through to get moderates on board and the way they wanted to sell the ACA, they structured the law in a way that made it susceptible to Supreme Court review.
The Supreme Court basically upholds individual rights. In most cases, for those that care about individual rights would see the Supreme Court at worst does nothing and at best protects individual rights. In some cases, like Citizen's United, that may give you a result you don't like. I would gladly accept Citizen's United in exchange for all the protections the Supreme Court provides.
Nothing is won in the street. Ask Hong Kong or Tian An Men what is won in the street. It is won at the ballot box. It is won in the state legislatures and governors' houses. It is won in the Congress and the White House. And sometimes it is won in the Supreme Court. Marching around in the streets does nothing until those institutions decide to make a change. Frankly, if liberals were more interested in voting than running around yelling, we wouldn't be having this conversation.
You're doing a lot of lawyering here but you sound like George Will defending the designated hitter out if some allegiance to the purity of the game
Supreme Court justices are vetted and selected based on party loyalty, who they clerked for, their decisions, etc. The idea that they are calling "balls and strikes" is naive. They have been acting as an extension of their party masters.
Was Bush vs Gore about the law? No it was about the candidates.
Was overturning case law in Citizens about the law? No it was allowing corporations to spend money in ways that undermine democracy. Whose interest is that? The constitution's?
When you say that the courts never made segregation worse do you think Plessy vs Ferguson didn't maintain and legitimize segregation? It set the country back 70 years. Wasn't the 14th amendment relevant then?
Whose balls? Whose strikes?
This is the problem of having people talking about stuff they don't know anything about. Like most internet mouthpieces, you laud or criticize the Court, according to our viewpoints, solely without understanding or reference to the Court's own history and the legal doctrine and decisions, the basis on which court decisions are more often than not based: federalism, substantive due process (and level of scrutiny), and the like.
Citizens United was a foregone conclusion when in 1978 a majority consisting primates of liberal justices decided money equals speech (the opinion was per curium, but was primarily written by Brennan according to insiders). There were several SCOTUS cases that followed this case; nevertheless, you don't like Citizens United since greedy corporations get rights, so it must not be based on legal principles. Whine as you may, when you go get your law degree instead of repeating Vox, you can play the game. Until then I suggest people read you for the primary purpose of finding out what names you can make-up, and leave views on what the Supreme Court does to posters like Oak. I'm reminded by someone positing a stupid Vox article that said SCOTUS was going to overrule Roe one week after Kavanaugh's nomination was approved. I wonder who posted that? The reality is the Roe decision of Justice Blackman doesn't exist today. It was basically overruled (other than in name only) in 1992 when Blackman's tri-semester balancing test was simply rejected and replaced with a different standard. Then came cases that said Congress could ban some types of abortion procedures, varying cases on what limits or restrictions state laws could place on abortion procedures. In fact, abortions can't be obtained in a good portion of the country, and even Planned Parenthood in its briefs admits that the number of abortions has plummeted due to birth control, education, etc. The reality is that SCOTUS rarely overturns any decision explicitly as Oak is trying to tell you. They just interpret the earlier rulings a lift differently, see what happens, and let society evolve. Look at the cases on gay marriage. It took several cases and a huge change in society's view of gay rights They rarely get out in front. Want to change things, win elections. The court is not designed to meet your political whims. That most cases are decide by huge majorities consisting of judges from different ideological backgrounds should tell you that, assuming you even knew that or had the grey matter to understand the significance of the same. Stick to inventing names
One thing I can't abide is the "you're not qualified to have this discussion" argument. I can't believe I am saying this, but when anarchist says the Supreme Court is made up of political hacks, he is generally correct. I know I'm not qualified to say that but my go-to source of information on the Supreme Court is constitutional law professor, Eric Segall (oh no, he is only a Professor at Georgia State - I guess he isn't qualified either).
Segall wrote the book, "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges", making the argument that Supreme Court Judges are "politicians in robes" who essentially fabricate prior law reasoning to reach their personal conclusions. I know I'm not qualified, but that's essentially what I see happening.
Segall's solution is to greatly reduce the power of the Court by reducing it to 8 Justices with 4 appointed by each party. I don't think that is politically feasible so I just believe the Judicial balance should be in-line with the people. I support a 13 seat Supreme Court to balance things out.
https://law.gsu.edu/profile/eric-j-segall/
https://www.amazon.com/Supreme-Myths-Court-Justices-Judges/dp/0313396876
I don't see this as a matter of being qualified. Frankly, it is frustrating to some of us, yes probably mostly lawyers, that Americans ignore or forget what is taught in any high school civics class.
You guys seem to think I'm speaking out of a deep reverence for the Supreme Court. I'm not. Any remaining shreds of that I might have had, and they were few, believe me, went out the window with Bush v. Gore. (I have no doubt if the fact pattern was flipped in that case that George Bush would have won by the exact same vote). If people think we go to law school and are taught that the sun shines out of every orifice of the Supreme Court, that is not correct.
The Supreme Court absolutely is a political body made up of political actors. Now, 1. Most cases are not very political and 2. I do believe that they have more personal restraint on their politics then a President or legislator. But yes, they make political decisions. Sometimes extremely political decisions.
My point here is not reverence for the court. It is quite simply that people do not seem to understand procedurally where the court fits in the process. For the sake of my argument, you could have 9 of the most nakedly political people on the court. They do not make laws. They do not EVER infringe on the rights of an individual. Not because they are good and pure. Because they can't. The Supreme Court quite simply interprets laws for constitutionality. The Supreme Court can be complicit in abridging rights, but they cannot do it without another government entity passing laws to abridge those rights.
In a nutshell the Supreme Court:
1. Reviews federal, state and local laws to determine whether they unconstitutionally infringe on individual rights that are embodied in the constitution.
2. Review federal laws to determine whether they are within the limited powers defined in the Constitution with respect to the states
3. Review state laws to determine whether they are interfering with powers given to the federal government by the Constitution. (and within this, whether those state laws conflict with federal law)
That is about 99% of it. So in the area of free speech, for instance, no Supreme Court decision by itself limits speech. A law is passed, normally by a state or local government that seeks to restrict speech in some way. Somebody sues and takes it up to the Supreme Court. The court either rules 1. It is an impermissible restriction and the Court has protected speech. or 2. It is permissible and the law stands. In the second case, the members of that community are free to repeal the law. No other community has to adopt that law. The court didn't make the law. The court only says whether somebody can or cannot make that law. We may think they should have said they cannot. But the bottom line is, the court's only role in that case is to either provide more free speech protection than the law at issue, or to provide the same protection as the law at issue. That is what I mean when I say in many cases they do no harm. You could have 9 Hitlers on the Supreme Court, and in that case they could do no harm. That is most cases that involve individual rights.
Then there are other issues where we may not like the results but it doesn't make it an incorrect decision. Citizen's United is a good example. I think as law, that is a disaster. But WIAF is probably right. Constitutionally it is probably the right decision even if I don't like the effect. And honestly, if you went through the elements and thought about other things it might apply to, you very well might agree that you wouldn't trade the restrictions on your speech that you would have to accept in other cases to get the result you want in Citizens United. Had the founding fathers wanted to limit speech with respect to elections, they could have written that into the first amendment. Had they wanted to limit the speech of groups or associations (which would be a terrible idea) they could have put that in as well. If we now want to limit speech with respect to elections we can do so by passing an amendment. There is a process for that. It is hard, I know (and the founding fathers could have made it easier, but they didn't). The fact that we can't get the votes do make that exception is not the fault of the Supreme Court. There are many things I would change in the Constitution if I could (I think that state and local governments not having the free reign to regulate weapons as the community sees fit is a horrible idea, but if I'm on the court my response is, nothing I can do about it. Go get an amendment).
It is a constant that people yell at the Supreme Court for not striking down stupid laws that federal and state governments pass when the federal and state government had every right to pass the stupid law. The court does not opine on the wisdom of the law, merely the right of the government to pass it. If you don't like the ACA, blame Obama. Not the court if they uphold the ACA.
And there is so much expansion of individual rights that the court is entirely responsible for in interpreting the Bill of Rights. Our entire right to freedom of speech has been created by the court. The first amendment means virtually nothing without the court's interpretation. In fact, in the early days of our country many interpreted the first amendment as merely a restriction on prior restraint of speech. In other words, the government could not stop you from saying whatever you want, but once you said it, the government could arrest you for saying it. The court said no, that would have a chilling impact on speech. That may seem obvious now, but it wasn't until the court said it was. There is no law explaining what free speech rights we have. It could have easily been limited to only political speech. It could easily have been limited by whether it enhances discourse (so "Trump/Obama is a dumbass" wouldn't be protected). There is no reason the government could not have been able to regulate movies or television. The restrictions on the government are all developed by the court from the words "Congress shall make no laws abridging the freedom of speech". Oh yeah, and they could have limited it to the federal government and let the states do what they want. Today, you can walk through the LA County courthouse with a jacket that says "******* the Draft" because the court said you can and for no other reason. That is all on the court.
Miranda rights and the requirement you be read them are an invention of the court interpreted out of the Bill of Rights. (and by the way, in the UK, the rights they are read say something like "you don't have to answer any question but if you don't your failure to answer such question can be used against you at trial". The fact that ours differs substantially from that is all the Supreme Court)
It used to be common practice in America when somebody came to the police station and said "A Black guy mugged me" to go and round up every Black guy in the town or neighborhood and interrogate them, often enhanced, until someone confessed. The Court is the one that interpreted that out of the Bill of Rights.
Let me be straight here. If you are a liberal, you should love the Supreme Court. Not necessarily the current makeup of the Supreme Court. Not every decision they make. And no not their politics. Yes, the Supreme Court is generally more little c conservative. But in the large majority of their cases, they have 2 options, be more liberal than the law they are reviewing or be as conservative as the law they are reviewing. Yes, there are cases, like affirmative action, or Citizens United, where they have the ability to strike down something liberals like. But in most cases that liberals care about they are in a position to either strike down a law that may be infringing individual rights or leave the state to do what it wants.
Same sex marriage is a perfect example. The movement was lobbying states one by one to pass laws legalizing it. The Supreme Court never would have overturned one of those laws because it had no ability to do so. However, the movement did get the court to overturn laws restricting same sex marriage. That gave that right in many states that would never have given that right. Had the court held the other way, the only result was going to be that the movement went back to lobbying states one by one. The Supreme Court was a no lose situation for same sex marriage.
There are just exceptionally few occasions where liberal positions are struck down by the court because liberal policies are rarely constitutionally questionable, and if they are, they can normally be fixed.
This is basically like saying "I want a big shield and if I can't get it, screw the smaller shield, I'll take no shield". The court is a shield against the arrows shot at us by our government. The politics of the court determines how big the shield is. While we most certainly can criticize the size of the shield, we always need to understand that the problem is the arrows, not the shield. And throwing down the shield is not the solution.
