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******Official SCOTUS Thread******


squistion

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12 minutes ago, Maurile Tremblay said:

I don't think that's entirely new. Conservatives typically argue that judicial review is bad when applied to state laws because states' rights are awesome. I've heard liberals argue that judicial review is bad when applied to federal laws because the people, through their representatives, should be able to promote the general welfare however they see fit without worrying about pesky requirements like an affirmative grant of authority under the Commerce Clause, etc.

People on both sides have always opposed "judicial activism." They just have a different view of what qualifies.

It's not entirely new and goes back to the Lochner era. But I get what IK is saying, and I think Robert J. Bork's book The Tempting Of America: The Political Seduction Of The Law set forth certain principles that became the linchpin of "conservative" thoughts about the judiciary vis a vis the legislature in and around 1987. Bork felt that the Court should not place policy preferences ahead of legislative primacy and that began to be parroted by conservative thinkers throughout the country, who were generally more in thrall to Bork's stance on pornography, censorship, and other matters than his theories about the American project and its corresponding jurisprudence.

Your point is correct, though. I just wanted to add to what Ivan was saying. Intellectual conservatives from about '85-'15 were uniquely lockstep in talking about legislative primacy, whereas Democrats and left-leaning intellectuals were much more likely to praise the Court that had been theirs from about 1937. 

Edited by rockaction
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Just now, spodog said:

Webster's has bloviate as: to speak or write verbosely and windily.   My response was 206 words, your response to my response was 450.  

Glad to review your CV, glad you have a JD, glad you got good grades in civics.  It's a shame civics has been jettisoned in most schools, to be replaced with politically oriented nonsense like this in our schools. 

I'll stand by my primary premise that the SC is far from the most dangerous branch, and that the FF were quite forward thinking in their construction of this branch.

As for your sign-off, it is indeed a good day.   Any day I get an opportunity to highlight the lowering of society's collective IQ that Twitter has been able to achieve is a good day.   🙂 

I'm an American Heritage guy. They had both Buckley and David Foster Wallace on their usage panels, cementing them as probably the best arbiters of usage and taste I can think of. Glad you dug the CV. Perhaps next time you won't assume an obviously self-critical but lighthearted post wasn't necessarily a beg for a civics lesson. Hence the wordiness. I need to know with some degree of certitude that you know. As for your link, I didn't click it. I'm sure that regardless of what I think is the worst I can come up with, academia has done me one better in reality than I could do with merely my imagination.

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3 hours ago, The Commish said:

Not sure what this has to do with my comment, but I'm fully on board with term limits and a SIGNIFICANT cut in "pay"...like to a small stipend.  I don't think "politician" should be a career.

The only relationship it had to your observation about the belligerent kid and belligerent parent is this:   You are correct, a parent has a lifelong obligation to their child and a guidance/oversight obligation for the first two decades at least.     Your analogy is valid at present, since the children that we send to Congress today tend to be there for decades.   A preferable situation would be strict term limits that would invalidate your analogy, as we'd instead be sending our peers to DC for a finite period of time.

Not as passionate about the pay aspect as you may be, as I think the term limits issue will minimize the importance of the rate of pay for representatives and Senators. 

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https://twitter.com/kylegriffin1/status/1308458538608594945

Some Senate Republicans have voiced total support for Trump's SCOTUS nominee before Trump has announced an actual nominee.

 

:( 

Indeed, why bother interviewing the candidate or concerning yourself with details like their judicial record, background and qualifications?

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51 minutes ago, cap'n grunge said:

Yep. Look for a 15 seat court soon with 9 liberals and 6 conservatives.

Yep, if you can't win then move the goal posts.  Not going to happen however.......ever.  Just like the electoral college isn't going to change either.  The founders were brilliant on that one.

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31 minutes ago, JohnnyU said:

Yep, if you can't win then move the goal posts.  Not going to happen however.......ever.  Just like the electoral college isn't going to change either.  The founders were brilliant on that one.

If there is a 15 seat court I am pretty sure the only way it got that way was if the dems won

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1 hour ago, squistion said:

https://twitter.com/kylegriffin1/status/1308458538608594945

Some Senate Republicans have voiced total support for Trump's SCOTUS nominee before Trump has announced an actual nominee.

 

:( 

Indeed, why bother interviewing the candidate or concerning yourself with details like their judicial record, background and qualifications?

There is no need for confirmation hearings anymore.  Hopefully, we've seen our last.  One of the great silver linings to come out of this circus.

I can see this being page 8 news - "the President appointed 8 new Supreme Court Justices today, having received the advice and consent of the senate, bringing the total to a new record 57 active justices on the Court."

 

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On 9/21/2020 at 10:59 AM, Maurile Tremblay said:

The tradition of voting against qualified candidates for ideological reasons would not have started with Garland if he'd been put to a vote. Senator Obama voted against Alito and Roberts, for example, which deprives him of standing to complain about it happening to his own nominee. The most famous example is still Bork.

Yep exactly. I remember the angry feeling I felt when I read Obama's reasoning for not approving Roberts way back in 2007 or whatever it was. 

Edited by Zow
Obama actually spoke it but I read a transcript.
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38 minutes ago, JohnnyU said:

Yep, if you can't win then move the goal posts.  Not going to happen however.......ever.  Just like the electoral college isn't going to change either.  The founders were brilliant on that one.

It would take a Constitutional Amendment to change the electoral college (which would have to be ratified by 2/3rds of the states). However the Constitution does not set a specific number of SCOTUS justices, so to expand it to 11, 13 or 15 all that would be needed for the Democrats would be to win the White House and majorities in both houses of Congress.

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21 minutes ago, CletiusMaximus said:

There is no need for confirmation hearings anymore.  Hopefully, we've seen our last.  One of the great silver linings to come out of this circus.

I can see this being page 8 news - "the President appointed 8 new Supreme Court Justices today, having received the advice and consent of the senate, bringing the total to a new record 57 active justices on the Court."

 

Maybe there could be circuit supreme courts around the country when the number gets high enough. 

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1 hour ago, dawgtrails said:

If there is a 15 seat court I am pretty sure the only way it got that way was if the dems won

With all the talk of increasing the size of the SC, wouldn't the public voting for the Dems to the Whitehouse, Congress, and the Senate almost be a mandate for them to increase?  Totally legal, totally within the constitution.  I don't see an issue.  The Public has spoken.  Especially when it's on the table before the election.

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1 hour ago, Zow said:

Yep exactly. I remember the angry feeling I felt when I read Obama's written reasoning for not approving Roberts way back in 2007 or whatever it was. 

This is very confusing.

Edit: He stated his reasoning on the floor of the Senate.  

Edited by Henry Ford
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No matter how this confirmation turns out it will be interesting to see how Roberts responds to protect the legacy of the court (or as some argue his own legacy) in the terms ahead.  I doubt he becomes the fourth in the liberal wing, but I also assume he is no longer the swing vote on many 5-4 decisions either.  (Wonder who will be?)   

As someone on the left I'm torn between this is going to be a nightmare for the country as progress will be stalled at least a generation and maybe this is a grand opportunity to start being bolder in how democrats need to paint their visions, to sell what a more perfect union would look like.  Guess we shall see. 

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7 minutes ago, Chaz McNulty said:

With all the talk of increasing the size of the SC, wouldn't the public voting for the Dems to the Whitehouse, Congress, and the Senate almost be a mandate for them to increase?  Totally legal, totally within the constitution.  I don't see an issue.  The Public has spoken.  Especially when it's on the table before the election.

The Court will be viewed as a partisan tool of whoever is in control. Precedent will be out the window. Wild swings in what is Constitutional. Political activism on the Court at its best/worst. No credibility or confidence. 

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5 minutes ago, jerseydevil20 said:

The Court will be viewed as a partisan tool of whoever is in control. Precedent will be out the window. Wild swings in what is Constitutional. Political activism on the Court at its best/worst. No credibility or confidence. 

I don't think the current system is effective.  It's luck of the draw for when a confirmation happens (SC Justice dying).  It has probably only worked out because it has been balanced, but now that it's unbalanced, the Democrats will be forced into increasing it to 11 (if they win White House and Senate).  Roberts will still be the swing vote.

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11 minutes ago, Henry Ford said:

This is very confusing.

Edit: He stated his reasoning on the floor of the Senate.  

I must have read a written transcript of his reason. I distinctly recall being in a particular classroom of my law school reading this. I apologize for any confusion. 

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So Obama's reasoning seems to have boiled down to this:

Quote

In his work in the White House and the Solicitor General's Office, he [Roberts] seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

 

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On 9/21/2020 at 12:59 PM, Maurile Tremblay said:

The tradition of voting against qualified candidates for ideological reasons would not have started with Garland if he'd been put to a vote. Senator Obama voted against Alito and Roberts, for example, which deprives him of standing to complain about it happening to his own nominee. The most famous example is still Bork.

I'll die on the hill that Bork was so ethically compromised by his actions in the Nixon administration he had no business being a Supreme Court Justice.  Ever.

Edited by Henry Ford
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42 minutes ago, Chaz McNulty said:

I don't think the current system is effective.  It's luck of the draw for when a confirmation happens (SC Justice dying).  It has probably only worked out because it has been balanced, but now that it's unbalanced, the Democrats will be forced into increasing it to 11 (if they win White House and Senate).  Roberts will still be the swing vote.

I agree, the current system is broken. Unfortunately it assumes restraint and decorum which has been in short supply. There’s not much reason for optimism looking forward. It’s sad. 

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2 hours ago, Zow said:

Yep exactly. I remember the angry feeling I felt when I read Obama's reasoning for not approving Roberts way back in 2007 or whatever it was. 

Obama also voted against raising the debt ceiling, which I think is similarly indefensible.  Rather than get mad at Obama about these votes, though, it's probably more helpful to think about this a situation that is forced on senators -- particularly those that have ambitions.  Obama was running for president (officially or unofficially) when he cast those votes, and the fact of the matter is that if he had voted otherwise he might very well have not won the nomination.  I see both of these as being a "good guy cast into a bad situation" as opposed to something to be particularly mad at Obama about.

Edit: In case that's somehow unclear, I liked Obama the president better than Obama the senator.

Edited by IvanKaramazov
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This seems to be a done deal. Democrats need to be thinking about their next moves immediately and in the near future. They need to make sure the loss on the Supreme Court result in wins in the presidency and Senate. Hammer the hypocrisy, the damage the new court could do to healthcare and skewed priorities of the GOP (not working on stimulus, etc).

Then they could go one of two ways:

1. Play their game, down and dirty. Get rid of the filibuster, increase the number of justices, etc.

2. Work on reforms to try and prevent these problems in the future. Establish time frames and processes for the confirmation of Justices. It may not have gotten Garland confirmed but at least force them to put an official vote against him. I think you also need to look at restricting the powers of majority leaders as the current system allows for progress only on a purely partisan basis.

Either way they need to be ready for the Supreme Court losses. Get something ready for healthcare. Get something ready for abortion protections. Use the majority wisely while you have it.

Option 1 seems to be a recipe for disaster. Sure it will give short term wins but the GOP will come back and do it better when they get a chance. An expansion to 11 is reasonable. It won’t put them into the majority but will bring back the idea of there being swing votes. Making DC and PR states is also reasonable but opens a can of worms.

I fully view Biden as a necessary stop gap to get us out the Trump era and back on the track to normalize. Use his 4 years to fix what was broken and try to put in reforms to make sure they don’t happen again. 

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1 minute ago, Biff84 said:

This seems to be a done deal. Democrats need to be thinking about their next moves immediately and in the near future. They need to make sure the loss on the Supreme Court result in wins in the presidency and Senate. Hammer the hypocrisy, the damage the new court could do to healthcare and skewed priorities of the GOP (not working on stimulus, etc).

Then they could go one of two ways:

1. Play their game, down and dirty. Get rid of the filibuster, increase the number of justices, etc.

2. Work on reforms to try and prevent these problems in the future. Establish time frames and processes for the confirmation of Justices. It may not have gotten Garland confirmed but at least force them to put an official vote against him. I think you also need to look at restricting the powers of majority leaders as the current system allows for progress only on a purely partisan basis.

Either way they need to be ready for the Supreme Court losses. Get something ready for healthcare. Get something ready for abortion protections. Use the majority wisely while you have it.

Option 1 seems to be a recipe for disaster. Sure it will give short term wins but the GOP will come back and do it better when they get a chance. An expansion to 11 is reasonable. It won’t put them into the majority but will bring back the idea of there being swing votes. Making DC and PR states is also reasonable but opens a can of worms.

I fully view Biden as a necessary stop gap to get us out the Trump era and back on the track to normalize. Use his 4 years to fix what was broken and try to put in reforms to make sure they don’t happen again. 

This would be fantastic and would represent a tremendous accomplishment of the Biden administration IMO.  Everyone (who is not a tool) seems to recognize that SCOTUS nominations and judicial appointments in general have gotten out of control.  It is time for structural reform that isn't just another round of partisan payback for whatever the other guys did last.  Term limits for justices would be a fantastic first step, as would legislation that standardizes the confirmation process.

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25 minutes ago, IvanKaramazov said:

This would be fantastic and would represent a tremendous accomplishment of the Biden administration IMO.  Everyone (who is not a tool) seems to recognize that SCOTUS nominations and judicial appointments in general have gotten out of control.  It is time for structural reform that isn't just another round of partisan payback for whatever the other guys did last.  Term limits for justices would be a fantastic first step, as would legislation that standardizes the confirmation process.

I’ve seen 18 year terms mentioned, staggered to allow a nomination every 2 years. Two Justices per term seems reasonable.

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5 hours ago, JohnnyU said:

Yep, if you can't win then move the goal posts.  Not going to happen however.......ever.  Just like the electoral college isn't going to change either.  The founders were brilliant on that one.

It's much easier to increase the court size than change the electoral college. One requires a change to the Constitution and the other does not.

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1 hour ago, cap'n grunge said:

It's much easier to increase the court size than change the electoral college. One requires a change to the Constitution and the other does not.

Yes, it's also much easier to increase the court size than to impose term limits on Article III judges. Constitutional amendments are really hard.

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36 minutes ago, Maurile Tremblay said:
1 hour ago, cap'n grunge said:

It's much easier to increase the court size than change the electoral college. One requires a change to the Constitution and the other does not.

Yes, it's also much easier to increase the court size than to impose term limits on Article III judges. Constitutional amendments are really hard.

Can states mandate that their electoral votes be proportionally distributed?  

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3 minutes ago, Maurile Tremblay said:

Sure, if they want to be more like Maine. Or Nebraska.

Isn't this all that's really needed to make a meaningful difference in terms of EC impact?  We don't have to get rid of the EC....it's just the "winner take all" part that's a problem right?

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3 minutes ago, The Commish said:

Isn't this all that's really needed to make a meaningful difference in terms of EC impact?  We don't have to get rid of the EC....it's just the "winner take all" part that's a problem right?

No, the National Popular Vote Interstate Compact needs the states in the compact to use winner-take-all for it to work. (Winner of the nationwide popular vote, that is.) Otherwise the states in the compact will dilute their own influence while the other states will not.

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7 minutes ago, Maurile Tremblay said:

No, the National Popular Vote Interstate Compact needs the states in the compact to use winner-take-all for it to work. Otherwise the states in the compact will dilute their own influence while the other states will not.

Well, I kinda meant ALL states to go that route.  I know that's never going to happen, but that seems easier than a Constitutional Amendment addressing the EC.

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I always thought that the popular vote should be counted as a state.  Maybe the average of the 50 states for electoral votes.  This would encourage voting in states like Texas and California where the results are pretty much known.  It would also make it a little more difficult to lose the election but win the popular vote.

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6 hours ago, The Future Champs said:

Any party that packs the Court is going to get roasted in the next election, so go ahead.

I don't think that is necessarily true.

More Americans have voted for a Democratic presidential candidate in six of the last seven cycles.  This is almost certain to be true again in 2020.

More Americans voted for Democrats in the House in 2018.

Democratic Senators represent far more people than Republican Senators.

 

The reality is that the majority of the country is Center-Left to Left.

The GOP will be blamed for politicizing the Supreme Court - rightly or wrongly.  Refusing to allow Obama to fill Scalia's seat, and pushing Trump's nominee for Ginsburg's seat will easily win the politicizing argument.

So, if the Dems come into power, and talk about judicial reform, and adding judges to ease workloads, and that includes 4 new justices on the Supreme Court - sure the Trump Party will be angry - but I don't think that necessarily translates into nation-wide backlash.

 

Trump Party is acting brazen now, because they think there will be no consequences to their naked power grab.  Time will tell if they are correct.

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Some interesting dichotomies arising out of all this.

Amy Coney Barrett - her Catholic religion is the basis for The Handmaid's Tale

Joe Biden - How his Catholic religion shapes his politics.

We can see the differences in stark detail - one is pure evil leading to a dystopia of female slaves, one is saintly with references to faith, justice, love with references to Matthew; all based on the same religion.  One a pure hit piece based on a comparison to an imagined dystopian world (Note to Newsweek - Atwood imagined that world, not some Catholic group) and the other a fawning love piece.  Love the images - Biden looks like a devout saint in the front of the church.

If you wanted case A on how the press is wildly left, here it is. 

Not surprising that we start to see ridiculous hit pieces emerge.  Really, this is the best they can come up with?  Responsibility for an imagined world based on her religion?  She must be a super solid pick from a personal point of view.

Edited by Sand
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5 minutes ago, Sand said:

Some interesting dichotomies arising out of all this.

Amy Coney Barrett - her Catholic religion is the basis for The Handmaid's Tale

Joe Biden - How his Catholic religion shapes his politics.

We can see the differences in stark detail - one is pure evil leading to a dystopia of female slaves, one is saintly with references to faith, justice, love with references to Matthew; all based on the same religion.  One a pure hit piece based on a comparison to an imagined dystopian world (Note to Newsweek - Atwood imagined that world, not some Catholic group) and the other a fawning love piece.  Love the images - Biden looks like a devout saint in the front of the church.

If you wanted case A on how the press is wildly left, here it is.  I stand in disbelief when there are arguments in here that the mainstream press isn't biased.  It's massively, wholly biased in one direction.

She is not a mainstream Catholic. She belongs to an organization that specifically asserts that men control their wives. 

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