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How rare is a Supreme Court breach? Very rare

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Re: How rare is a Supreme Court breach? Very rare

#121

Post by hotpotamus »

rayiner wrote: post #101
hindsightbias wrote: post #33

Unherd of before rulings, but this is the big one. But they’re just warming up. Obergefell v. Hodges, Affirmative Action… a lot of unwinding in the next generation. Remember, both sides are the same. /s

Like Roe, Obergefell would be another decision where if the Supreme Court overruled, it would simply make the law the same as Europe: https://eclj.org/marriage/the-echr-unanimously-confirms-the-... Likewise in affirmative action. You just listed three things where the supposedly arch conservative Supreme Court is simply making our law the same as France.

The difference is that the US is a country and Europe is not. Generally speaking it might limit your liberties if one state did not recognize your spouse and another did.

Re: How rare is a Supreme Court breach? Very rare

#122

Post by capguy255 »

refurb wrote: post #5
rayiner wrote: post #3

This sort of leak, likely from a law clerk given that it was a draft opinion, is not a good development. Nobody has any loyalty to their institutions anymore. Every institutional loyalty has been subjected to team red or team blue.

This is the bigger problem. There is a process and some people seem to think circumventing it is the right response. The courts will make a decision and then it's up to Congress to draft new laws if it wants. Undermining the process of the judicial branch is not going to end well at all.

Hand-wringing about "process" is a POLITICAL argument designed to deflect attention from substance. It's an argument that politicians make to change the topic and not an appropriate argument for the courts. Stop trying to change the topic.

And even if accepting this framing -- which "process" exactly has been undermined? Has someone suggested stripping the courts of jurisdiction for certain cases? Have the courts been defunded or had their staffers taken away? Have the number of courts been reduced or the justices circulated to another court? These are all "process" changes well within the power of the other political branches, that aren't happening here.

In short -- quit changing the topic and perhaps read the draft opinion, which waxes philosophically about the value of public debate on controversial opinions.

Re: How rare is a Supreme Court breach? Very rare

#123

Post by robmiller »

aaomidi wrote: post #71
hammock wrote: post #35

Earlier quoted context omitted.

Aka a chilling effect (a phrase invented in high court opinion) on justice, if unpopular

Quoted post unavailable.

To borrow an observation from Matt Stoller[0], SCOTUS is only powerful because congress refuses to legislate.

[0] https://twitter.com/matthewstoller/status/150627311232057754...

Re: How rare is a Supreme Court breach? Very rare

#124

Post by tbrownaw »

rayiner wrote: post #90
purple_ferret wrote: post #42

Earlier quoted context omitted.

Who cares. The supreme court has lost all credibility and has become just another political arm.

It takes some mental gymnastics to say that elective abortions to 24 weeks is a “human right” that’s so important it must be read into the Constitution—implying that countries like France, Denmark, Germany, Italy, and Spain are violating human rights by limiting abortions to the first trimester. But to go further and say the Supreme Court “has lost all credibility” by returning US law to the international norm—where…

I wouldn't necessarily read "has lost all credibility" as implying some longwinded thing about human rights in regards to the current case, that the credibility claims are "further than".

There have been attacks and denunciations against the court and its credibility for quite a while. At the very least since that one nomination got deliberately stalled at the end of Obama's last term, but I hear there were people attacking the court even before then, when I wasn't paying much attention yet. Something about hanging chads in Florida for one. Or the previous before-my-time attempt at court packing.

Re: How rare is a Supreme Court breach? Very rare

#125

Post by hindsightbias »

rayiner wrote: post #101
hindsightbias wrote: post #33

Unherd of before rulings, but this is the big one. But they’re just warming up. Obergefell v. Hodges, Affirmative Action… a lot of unwinding in the next generation. Remember, both sides are the same. /s

Like Roe, Obergefell would be another decision where if the Supreme Court overruled, it would simply make the law the same as Europe: https://eclj.org/marriage/the-echr-unanimously-confirms-the-... Likewise in affirmative action. You just listed three things where the supposedly arch conservative Supreme Court is simply making our law the same as France.

They’re just getting started.

30 days: http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20INT/SB/SB...

South Dakota is working on 5 weeks. There are something like a 100 state bills in work this year.

Re: How rare is a Supreme Court breach? Very rare

#126

Post by themacguffinman »

usernomdeguerre wrote: post #62
zdragnar wrote: post #36

Earlier quoted context omitted.

That is extremely unlikely. There's nothing to be gained by breaking the trust of the supreme court justices by leaking a draft of a decision you are in favor of. Now, the justices will be facing intense public discontent from those who want a different decision to be made before the draft is finalized (not that I suspect anything can realistically be changed at this point). If you favor the decision, then it also sp…

Releasing a draft stops many avenues of compromise among the decision makers. Regardless of the industry/institution. When members do not have a way to change their opinion and save face, they won't change their opinion. Politico should have been more thoughtful about its disclosure if they preferred to see changes because now the names on that opinion will never change and we could very well see the exact language b…

US Supreme justices are appointed for life, the only "face" they have to lose realistically is their legacy reputation, how they are seen by future generations. They are not really vulnerable to populist attacks of hypocrisy or flip-flopping or whatever.

Re: How rare is a Supreme Court breach? Very rare

#127

Post by refurb »

capguy255 wrote: post #122
refurb wrote: post #5

Earlier quoted context omitted.

This is the bigger problem. There is a process and some people seem to think circumventing it is the right response. The courts will make a decision and then it's up to Congress to draft new laws if it wants. Undermining the process of the judicial branch is not going to end well at all.

Hand-wringing about "process" is a POLITICAL argument designed to deflect attention from substance. It's an argument that politicians make to change the topic and not an appropriate argument for the courts. Stop trying to change the topic. And even if accepting this framing -- which "process" exactly has been undermined? Has someone suggested stripping the courts of jurisdiction for certain cases? Have the courts bee…

Are you aware of “judicial independence”?

Are you aware of “separation of powers”?

Are you aware that no such leak has ever occurred before it interferes with judicial independence?

Are you aware that the courts job is to decide if laws are constitutional/valid and Congress’ job to actually create law?

You hand wave away “process” when the entire function of the government is based on process.

If you throw away process you throw away the entire system.

Re: How rare is a Supreme Court breach? Very rare

#128

Post by comrh »

rayiner wrote: post #90
purple_ferret wrote: post #42

Earlier quoted context omitted.

Who cares. The supreme court has lost all credibility and has become just another political arm.

It takes some mental gymnastics to say that elective abortions to 24 weeks is a “human right” that’s so important it must be read into the Constitution—implying that countries like France, Denmark, Germany, Italy, and Spain are violating human rights by limiting abortions to the first trimester. But to go further and say the Supreme Court “has lost all credibility” by returning US law to the international norm—where…

How about, "lost credibility by overturning 50 year old precedent, that was reaffirmed 30 years ago, that a member of the current court even said was "settled law" in his confirmation hearings only 4 years ago" ?

Re: How rare is a Supreme Court breach? Very rare

#129

Post by elliekelly »

magpi3 wrote: post #23
elliekelly wrote: post #18

Earlier quoted context omitted.

It could also have been leaked by a sitting Justice in which case the source would have risked nothing at all.

Justices can be impeached. I'm not saying they would be, but it's possible. Why risk it? The opinion is going to come out anyway.

> Why risk it?

Because the opinion can still change. The votes can still change.

Re: How rare is a Supreme Court breach? Very rare

#130

Post by cocacola1 »

xeromal wrote: post #100
giantg2 wrote: post #66

Earlier quoted context omitted.

I'm not sure what you mean by the ignoring process part. Is it the way they were appointed or something to do with the justices themselves? Government is ignoring processes and right at all levels to some degree. I sympathize with the idea that rule of law has become a joke since nobody can enforce it on the people in power.

This post is gonna be too hot to make reasonable arguments, but I think they're talking about how Garland was never confirmed when Obama appointed him. At least one of these seats should've been someone else.

Beyond that, it's probably also that McConnell used the excuse of the upcoming election to delay that nomination, but not when RBG died.

Which, while perhaps unethical to someone on the other side of the political debate, doesn't contravene any rules as far as I'm aware. Same here, so I think the leak is fine.

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