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​ 🏛️ ​Official Supreme Court nomination thread - Amy Coney Barrett

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43 minutes ago, Maurile Tremblay said:

What the majority wants is supposed to be irrelevant to how judges decide constitutional issues. The whole point of the "constitutional" part of a constitutional democracy is that the majority is prohibited form censoring stuff, from establishing state religions, from enacting cruel punishments, etc., no matter how popular those things are. Judges are given lifetime appointments precisely because they're supposed to be insulated from the popular will, and to uphold constitutional principles without being constrained by what the majority of Americans feel is reasonable and just.

I get this. I don't disagree with that intent. But insulating SCOTUS from popular will yet not having similar intent to keep it free from the influences of government is likely also not the intent of this structure.

The way courts have been politicized, there seems to me to be way more potential for the state to influence the judiciary. An example of this is a party that runs a pro-life stance as part of its political platform, and wields the ability to create a SCOTUS majority with a potential aim of overturning a long-standing law like Roe v Wade. It can then enforce its viewpoint on a public that largely swings the other way, and scores political points with its minority constituents.

This overturn has not happened, to be sure. Though Trump hasn't been shy about signaling that with Barrett's appointment, this overturn can occur. 

This also certainly can cut the other way too should Democrats force a more liberal majority and impose their own agenda through the highest court in the land. 

The point being that if the idea was to insulate SCOTUS from the influences of popular will, seems to me they should be similarly insulated from the influences of church and or state (or in the example here, the comingling of both). 

I don't think that's happening.

37 minutes ago, Maurile Tremblay said:

It would be crazy for Kavanaugh or any federal judge to order NOT counting votes that meet the letter of the law. There's no way that would get five votes on the Supreme Court, I hope.

In this case, as I understand it, the question was whether votes postmarked before the election (but arriving afterwards) should be counted even though they don't meet the letter of the law.

I hope so too. However these days, I am not sure I can count on crazy not happening. Hope alone is not a good preventative strategy.

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3 hours ago, parasaurolophus said:

The bold is the wrong way to frame it. They are never counted in WI. There is no "postmarked by" option. Any ballots received after 8pm on election day, are never counted.

A federal judge overturned a state law and picked 6 days after as an arbitrary deadline. 

Kavanaughs point is made considering that. 

Lets say Trump wins WI by 100 votes on election day, 8pm. Then 5 days later 101 ballots show up for Biden. They are now allowed to be counted. Biden wins. 

A federal judge literally would have decided a state by overturning state law. 

Under current law those ballots are never counted. They do NOT meet any "letter of the law" unless you think a federal judge should be able to write state election laws.

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

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5 hours ago, Stompin' Tom Connors said:

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

I agree with the bolded part -- all things considered, it would be totally reasonable for a state to extend its deadline for accepting absentee ballots.  On the other hand, since we've all known about covid since March at the latest and since we've all known when election day is for years now, it's also reasonable just to stick to the law as written.  If I were a resident of WI, I would be fine with either approach.  

That's not really what this case was even about.  It's more about who gets to make that decision.  If the state legislature decides that the law is fine as is and opts to leave it along, should a state court be able to override that decision to establish new election procedures on its own?  And what role, if any, do federal courts play in this issue?  Those questions aren't unimportant -- they matter!  But it's just plainly wrong to frame the issue as if the supreme court was stepping in on its own to decide how states should handle absentee ballots.  That isn't what they're doing. 

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What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

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12 minutes ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

This is a good example of something that would warrant judicial intervention.

A less dramatic example would be something like a severe blizzard that hits WI today and effectively shuts down mail delivery.  There would be no time for the legislature to act before election day, so it would reasonably fall to a judge to figure out how to move forward with a fair election under those conditions.

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1 hour ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

What if a federal court intervened in a last minute federal decision? 

That doesnt seem very comparable. 

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1 hour ago, IvanKaramazov said:

This is a good example of something that would warrant judicial intervention.

A less dramatic example would be something like a severe blizzard that hits WI today and effectively shuts down mail delivery.  There would be no time for the legislature to act before election day, so it would reasonably fall to a judge to figure out how to move forward with a fair election under those conditions.

Seeing as the Wisconsin legislature has not passed a single bill in over six months, while a pandemic is raging through our state, yeah - one would hope the Court would step in at that point.

 

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9 hours ago, Stompin' Tom Connors said:

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

There's the rub though.  Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.  If a State wanted to limit counted votes to votes received by a certain date, that's their law.  A court shouldn't allow for extensions.  If a State wanted an extension to be allowed, then it should be passed by their legislature.  To be fair, I'm jumping in mid-stream here and don't know what the laws of different States are with respect to voting laws, I'm speaking more theoretical of the duty of a court and State legislatures.   

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20 minutes ago, Snotbubbles said:

There's the rub though.  Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.  If a State wanted to limit counted votes to votes received by a certain date, that's their law.  A court shouldn't allow for extensions.  If a State wanted an extension to be allowed, then it should be passed by their legislature.  To be fair, I'm jumping in mid-stream here and don't know what the laws of different States are with respect to voting laws, I'm speaking more theoretical of the duty of a court and State legislatures.   

100%.  The question is not:  Is this a reasonable request.  

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2 hours ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

I think that's a vastly different example from what happened.  It's a hypothetical and it's not really comparable to the Wisconsin case.  

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40 minutes ago, Snotbubbles said:

Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.

The first is sometimes a necessary element of the second. Courts presume that legislatures intend to be reasonable. If there's a typo in some legislation, for example, a court will give effect to what the legislature probably intended -- based on what would be reasonable -- instead of enforcing the typo as written.

Similarly, if a law has some crazy, unreasonable, obviously unintended effect in some situation because it simply neglected to account for the possibility of a severe blizzard, or a global pandemic, a court may avoid the unreasonable, obviously unintended effect the same way it avoids enforcing a typo.

I'm not commenting on the specific Wisconsin situation at issue in the recent Supreme Court decision -- just saying, as a general principle, that "what a court considers reasonable" and "what the legislature passed as law" are not always entirely separate inquiries.

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2 minutes ago, Maurile Tremblay said:

The first is sometimes a necessary element of the second. Courts presume that legislatures intend to be reasonable. If there's a typo in some legislation, for example, a court will give effect to what the legislature probably intended -- based on what would be reasonable -- instead of enforcing the typo as written.

Similarly, if a law has some crazy, unreasonable, obviously unintended effect in some situation because it simply neglected to account for the possibility of a severe blizzard, or a global pandemic, a court may avoid the unreasonable, obviously unintended effect the same way it avoids enforcing a typo.

I'm not commenting on the specific Wisconsin situation at issue in the recent Supreme Court decision -- just saying, as a general principle, that "what a court considers reasonable" and "what the legislature passed as law" are not always entirely separate inquiries.

True, but you're doing a "reasonable" analysis on what was written, debated and intended.  You're not doing the analysis as an addition to extend the law past it written intent.  So in this case, a deadline, the analysis would be whether the deadline was reasonable not on whether extending the deadline is reasonable.  If the deadline is unreasonable then you strike down the law and send it back to the State Legislature to cure, you don't add and extension because the court find the extension reasonable.   

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4 minutes ago, Snotbubbles said:

True, but you're doing a "reasonable" analysis on what was written, debated and intended.  You're not doing the analysis as an addition to extend the law past it written intent.  So in this case, a deadline, the analysis would be whether the deadline was reasonable not on whether extending the deadline is reasonable.  If the deadline is unreasonable then you strike down the law and send it back to the State Legislature to cure, you don't add and extension because the court find the extension reasonable.   

If a statutory deadline is found to be so unreasonable that it's illegal, a court wouldn't simply repeal the whole deadline until the legislature fixes it. (There has to be some deadline.) It would likely impose a reasonable deadline of its own until the legislature gets around to acting.

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6 minutes ago, Maurile Tremblay said:

If a statutory deadline is found to be so unreasonable that it's illegal, a court wouldn't simply repeal the whole deadline until the legislature fixes it. (There has to be some deadline.) It would likely impose a reasonable deadline of its own until the legislature gets around to acting.

[Grrr, you made me read the SC opinion]  The issues before the SC were 1) changing state election rules too close to an election; and 2) the judiciary usurping the state legislature’s authority to either keep or make changes to state election rules in light of the pandemic.

Gorsuch wrote in his concurrence: "The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them.  Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions."  I think we both agree on that.

Based on Kavanaugh's concurrence, I'm not sure the Court would repeal a deadline, even unreasonable, without a State Legislature having a reasonable time to cure the issue.  "In this case, however, just six weeks before the November election and after absentee voting had already begun, the District Court ordered several changes to Wisconsin’s election laws, including a change to Wisconsin’s deadline for receipt of absentee ballots. Although the District Court’s order was well intentioned and thorough, it nonetheless contravened this Court’s longstanding precedents by usurping the proper role of the state legislature and rewriting state election laws in the period close to an election."    

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16 minutes ago, Snotbubbles said:

Based on Kavanaugh's concurrence, I'm not sure the Court would repeal a deadline, even unreasonable, without a State Legislature having a reasonable time to cure the issue.

I haven't read any court's opinion about the Wisconsin thing, so I'm just discussing the general principle.

Suppose the Wisconsin statute had a typo so that the deadline to receive mailed ballots for the 2020 election was November 3, 2021. Somebody files suit six weeks before the election saying, "A deadline that's a year off seems kind of unreasonable, don't you think?"

The court is very likely, I believe, to fix a reasonable deadline of its own rather than just not doing anything until the legislature sees fit to act maybe sometime next year.

We're getting sidetracked, though. I don't think we're disagreeing about anything of imminent practical importance.

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Is this where we’re discussing these cases now? 
 

Quote

Amy Howe

@AHoweBlogger

#SCOTUS rejects Republicans' request to block extension of deadline for receipt of mail-in ballots in North Carolina. Justice Barrett did not participate.

 

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