Fantasy Football - Footballguys Forums
Welcome to Our Forums. Once you've registered and logged in, you're primed to talk football, among other topics, with the sharpest and most experienced fantasy players on the internet.
🏛️ Official Supreme Court nomination thread - Amy Coney Barrett (2 Viewers)
- Thread starter Sinn Fein
- Start date
Just because a law is democratically enacted does not mean it is Constitutional. The Constitution says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."I can't see how any ruling could be more "contemplated by the Constitution" than those rulings.
Ramsay Hunt Experience
Footballguy
Yeah, when a decision changes the way a Constitutional provision had been interpreted for over 70 years, I'd call it "activist."
Rich Conway
Footballguy
Agree to disagree, I guess. That "striking down laws" is a common definition of judicial activism (not sure I agree that it's common, btw) doesn't prevent it from being a stupid definition. People using "literally" to mean "figuratively" is also common, and also stupid. If Congress passed a law that Lutheranism was to become the national religion, voting to strike it down wouldn't be activist in the slightest.
If we're looking for decisions that are activist, I would think that Wickard should sit right near the top, and that didn't strike anything down.
Last edited by a moderator:
Rich Conway
Footballguy
I do agree that most people use the term in a "the judge did something I don't like" way. I also agree that Scalia was quite activist in many instances (Raich, for example).
pantagrapher
Footballguy
I'm ambivalent about this. On the one hand, it would be nice to have that appointment done with, but on the other: if she feels healthy and sharp, I don't see why the onus is on her to step down so a political party can "protect" her seat. And as others have said, it's unlikely a jurist as liberal as Ginsberg would make it through confirmation process today.
Is Ginsburg really more liberal than Sotomayor or Kagan? I don't follow many rulings, but on the major controversial ones, they always seem to agree.
fatguyinalittlecoat
Footballguy
I think they are pretty similar but Ginsburg had a much more radical resume when she was nominated.
bigbottom
Footballguy
I think I misunderstood your original statement. I took you to be saying that striking down laws is inherently not activist. Striking down laws certainly can be activist, depending on the issue in question and the basis for striking it down. But you're right, judicial activism can occur whether striking down or upholding a particular law.
Agree to disagree, I guess. That "striking down laws" is a common definition of judicial activism (not sure I agree that it's common, btw) doesn't prevent it from being a stupid definition. People using "literally" to mean "figuratively" is also common, and also stupid. If Congress passed a law that Lutheranism was to become the national religion, voting to strike it down wouldn't be activist in the slightest.
If we're looking for decisions that are activist, I would think that Wickard should sit right near the top, and that didn't strike anything down.
Rich Conway
Footballguy
Agree then. As you note, I wasn't saying that striking down laws is "not activist", rather that striking down laws isn't inherently or necessarily activist.
Anthony Borbely
Footballguy
Good thread
I think this is one of the best threads I have ever seen in here in terms of civil discussions from people on all parts of the political spectrum.
dparker713
Footballguy
That's not cited because it struck down a law, but because it expanded the right to privacy. A non enumerated right springing from the parsing of "liberty"
Catch's definition is probably about what the term should mean.
Ramsay Hunt Experience
Footballguy
I disagree with this. I don't see how upholding the will of democratic majorities can ever be activist. It may be wrong. It may be stupid. But its not judicial activism. Judicial activism typically refers to unelected judges overturning majoritarian political decisions. There's nothing "activist" about the courts declining to override the legislature. The courts are quite literally refraining from action.
dparker713
Footballguy
Judicial review of Congressional laws was not included in the Constitution. It wasn't until the fourth Chief Justice, John Marshall, wrote Marbury that we established Judicial review. So any review of the law is really based upon judicial activism in the first place.
I can't see how any ruling could be more "contemplated by the Constitution" than those rulings.
dparker713
Footballguy
I disagree, that's part of the mandate of the Court - to interpret the Constitution. Stare Decisis has its place, but each Justice and each Court is different and none should be entirely beholden to their predecessors.
bigbottom
Footballguy
bigbottom
Footballguy
Interesting. I would have argued that inventing a way to allow a clearly unconstitutional law to stand or inventing a way to strike down a clearly constitutional law would be examples of judicial activism (with "inventing" meaning coming up with an argument that finds little to no support in constitutional text or precedent). But I'll have to chew on your take a bit.
I'd be disappointed if Ginsburg timed her retirement based on tribalistic political reasons.
Here's my four-point plan to depoliticize the judicial appointment process.
1. Presidents should nominate candidates without applying litmus tests on specific issues. It's okay for Presidents to consider whether a prospective nominee's judicial philosophy is consistent with the President's political philosophy -- I'm not saying that a Republican should consider someone like Kagan, or that a Democrat should consider someone like Alito. But that should be the extent of how politics and judicial appointments intersect.
2. Senators should vote to confirm or reject a nominee based only on the nominee's competence and integrity, without regard to whether her judicial philosophy is consistent with their political philosophies. It is appropriate for Republicans to confirm someone like Kagan and for Democrats to confirm someone like Alito. (If a nominee's substantive record or philosophy are way outside the mainstream, I'd say that a "no" vote can be justified based on concerns about her competence.)
3. Judges should try to get the legally correct answers in the cases before them, without regard to whether the legally correct answer is more favorable to the Red Tribe or the Blue Tribe.
4. In no case should people play around with timing merely to advance the interests one tribe or another. If a Justice passes away in January when the sitting President has just a few days before the next President is sworn in, the President should not skip over the normal vetting process to nominate someone immediately. (More relevant to the current situation, he also should not take advantage of a short Congressional recess merely to evade the normal confirmation process.) The Senate should not filibuster or delay the confirmation process for any reason, especially not because they hope that upcoming election results will favor their tribe. Justices should retire when they're no longer fit for the job, or when they get bored with it, without regard to whether the timing of their retirement will favor one tribe or the other. (Same with death.)
Last edited by a moderator:
fatguyinalittlecoat
Footballguy
Maurile, your four point plan is completely unenforceable and, in my judgment, just silly.
The solution isn't to continue to try to perpetuate the fiction that courts are apolitical. We need to just acknowledge that courts are political and proceed from there.
The way to end the timing problem is to end lifetime appointments to the Supreme Court. You get one 18 year term. If you want to stay a judge after that, you take Senior Status and sit on one of the Courts of Appeal.
The solution isn't to continue to try to perpetuate the fiction that courts are apolitical. We need to just acknowledge that courts are political and proceed from there.
The way to end the timing problem is to end lifetime appointments to the Supreme Court. You get one 18 year term. If you want to stay a judge after that, you take Senior Status and sit on one of the Courts of Appeal.
timschochet
Footballguy
I like Maurile's idea but as I listen to our candidates for President on either side it strikes me that we're moving in the opposite direction. Ted Cruz and his followers can talk all they want about originalism but what they're looking for is a justice who will side with the NRA, overturn Obamacare, and reverse the legalizations of abortion and gay marriage. Liberals want somebody who will get rid of Citizens United and Heller.
Ramsay Hunt Experience
Footballguy
I don't think liberals really care all that much for reversing Heller. Heller wouldn't prevent most of the gun regulation being proposed right now. It's pretty squarely confined to a right to keep a firearm in your home. I think liberals are far more concerned that Heller will be extended into those areas.
Citizen's United is always tough to talk about. Most liberals concentrate on the most trivial part of the case (corporate personhood). It's weird because corporations have enjoyed some Constitutional protections and not others for a long time now. And of course, it would be weird to have freedom of the press if it didn't extend to corporations like The New York Times. I think Citizen's United is wrongly decided for other reasons. Which is that I think there is nothing in the First Amendment that actually prevents the government from limiting private expenditures on electioneering activity. It's a case where you have to apply those "Constitutional values" to a situation the Founders never contemplated. So, while I'd like Citizen's United overturned, I think it's probably more accurate to say that I'd like the justification for federal campaign regulation expanded to situations beyond those contemplated in Buckey v. Valeo.
Citizen's United is always tough to talk about. Most liberals concentrate on the most trivial part of the case (corporate personhood). It's weird because corporations have enjoyed some Constitutional protections and not others for a long time now. And of course, it would be weird to have freedom of the press if it didn't extend to corporations like The New York Times. I think Citizen's United is wrongly decided for other reasons. Which is that I think there is nothing in the First Amendment that actually prevents the government from limiting private expenditures on electioneering activity. It's a case where you have to apply those "Constitutional values" to a situation the Founders never contemplated. So, while I'd like Citizen's United overturned, I think it's probably more accurate to say that I'd like the justification for federal campaign regulation expanded to situations beyond those contemplated in Buckey v. Valeo.
Silly because it is completely unenforceable, or silly for other reasons?
(There are a lot of unenforceable traditions of professionalism in the law that I think are non-silly.)
Last edited by a moderator:
Even when "electioneering activity" is a euphemism for publishing speech? I think it's pretty clear that the First Amendment is at least implicated...
Last edited by a moderator:
That definition is too objective and people would not be able to endlesslyargue about what it means.
cstu
Footballguy
My argument against CU is that freedom of speech was created to protect actual human beings, not the artificial construction of an entity like a corporation.
Corporations do deserve some Constitutional protections, but freedom of speech in the form of unlimited political spending should not be one of them.
Why not extend the 5th Amendment to corporations if you going to extend the 1st? Or allow corporations to have their own militias? Or is that only a matter of time?
Last edited by a moderator:
Do you think the government should have succeeded in its attempt to prevent the New York Times from publishing the Pentagon Papers?
timschochet
Footballguy
We limit free speech all the time, when other competing rights are in play.
Can't one argue that, yes, corporations have the right to free speech, and yes, money is free speech, but the state has the right to make rules and regulations regarding elections and this right overrides the above mentioned rights?
Can't one argue that, yes, corporations have the right to free speech, and yes, money is free speech, but the state has the right to make rules and regulations regarding elections and this right overrides the above mentioned rights?
Money isn't speech. That's why limits on campaign contributions are constitutional. Citizens United wasn't about campaign contributions; it was about airing a movie.
No right is absolute, including the right to free speech. But when speech restrictions are based on content (e.g., "You can show a movie about John Malkovich, but not about Hillary Clinton"), there needs to be a really super good reason for the restriction.
Last edited by a moderator:
What was the reasons the liberal justices were against the decision? Ginsburg shocked me by this, being a former ACLUer.
Money spent by corporations to support or oppose political candidates has a potentially corrupting influence that detracts from the integrity of the democratic process. (That's my attempt to distill a 90-page dissent into a single sentence.)
Last edited by a moderator:
timschochet
Footballguy
But it wasn't just about the movie was it? I thought they also held that the government couldn't restrict individual expenditures.
Rich Conway
Footballguy
Once you allow freedom of the press, it is a pretty short leap from editorials to campaign commercials. And from there, I don't see a distinction between letting the New York Post publish daily editorials commercials, letting MSNBC offer endorsements commercials, and letting Google buy TV spots.
cstu
Footballguy
The people (members of the press) working at the NYT had the right to publish the Pentagon Papers at the company they worked for.
There is a line between the freedom of speech of the press and that of a corporation to spend unlimited amounts of money to influence elections.
cstu
Footballguy
Rich Conway
Footballguy
Why is there a line there? Is the press not influencing elections with their Opinion/Editorial page? Is Rush Limbaugh not influencing elections with his radio show? Ditto Sean Hannity, Bill O'Reilly, Rachel Maddow, etc. and their TV shows?
Or, put another way, if Microsoft wanted to influence an election, couldn't it simply buy or create a newspaper, TV station, etc. and air pro-whoever shows 24x7?
Last edited by a moderator:
I still find it hard to believe someone who values free speech as much as someone who was an ACLU lawyer would be compelled by that. I would have bet large amounts of money she was going to join the conservatives on that one.
fatguyinalittlecoat
Footballguy
IvanKaramazov
Footballguy
This is a nice idea, but I think the Republicans and Democrats are essentially playing a prisoners' dilemma on this issue. It would be nice for everybody if both parties behaved non-cynically, in the way you described. But the best of all possible worlds is for your party to play dirty while the other party plays nice. Both parties know this, so they both rush to the gutter.
In other words, I think our current state of affairs is the equilibrium, and the nicer, more gentlemanly behavior of yesteryear was the aberration.
IvanKaramazov
Footballguy
Rich Conway
Footballguy
cstu
Footballguy
The press supposed to be unbiased.
In the case of radio and cable TV infotainment, I agree corporations should be allowed to create any show they want but that's much more difficult than directly donating money to a campaign.
PlasmaDogPlasma
Footballguy
fatguyinalittlecoat
Footballguy
Even today, it remains illegal for corporations to donate directly to campaigns.
Rich Conway
Footballguy
Perhaps the press is supposed to be unbiased, although I think you'd have a hard time arguing it ever was unbiased, even at the time the Bill of Rights was created. It's certainly not unbiased now. Not to mention, can you even define "the press" in the internet era? Is every blogger "the press"? How about every Facebook page?
As far as the difference between creating a show and donating to a Super PAC, isn't the difficulty merely a matter of degree? Not to mention, more difficult can certainly be overcome easily enough simply by throwing more money at the problem.
fatguyinalittlecoat
Footballguy
I've never been a huge fan of human nature.
njherdfan
Footballguy
Interesting. So in a hypothetical situation, if a state completely banned abortions, and an appellate court upheld the ban by attempting to distinguish Roe and Casey, you wouldn't consider that activist?
cstu
Footballguy
True, but doesn't believe there's no unofficial communication going on between campaigns and Super PACs?
http://www.huffingtonpost.com/entry/super-pac-coordination_us_56463f85e4b045bf3def0273
Ramsay Hunt Experience
Footballguy
Correct. I'd consider it wrongly decided. I might consider it politically motivated or disingenuous. But I don't think it's activist as I understand that term. It would just be a ####ty decision for another reason.
