The Independent State Legislature Doctrine

[runrussellrun]

Damn, the "foe" controls only get me -- alone, anyway -- so far.

I think it is likely he will get confirmed, although I am awaiting word on Murkowski, Whitehouse and Collins. Manchin and Heidkamp (sic) will be under enormous pressure to vote to confirm Kavanaugh, and I don't know which way that wind blows.

In the end, the Chief Justice may be the problem for the evangelicals who expect this 5-4 majority to reverse or gut 45 years of "settled law." He may actually prove to be a real conservative, in the old sense. That is, the irony here is that the power of stare decisis is, in its essence, conservative, in the way folks like Burke would have understood the word. Now, "conservative" means a willingness to overturn settled law, impose burdens on women, and pretend that the states will somehow sort this out through their respective legislatures and somehow not give us that chaotic patchwork quilt of different laws across different borders.

Yes, to all of this. I agree. Because you can buy health insurance from other states too. bounce around the echo chamber, whats it like to hear those REAL voices when your all by yourself. ....such a joke.

[seacoaster]

I have no idea what your response means. You might get more traction and conversation if you could be a little less...abstruse.

[Bandito]

I have no idea what your response means. You might get more traction and conversation if you could be a little less...abstruse.

You must be dumb.

[MDlaxfan76]

Work on not being so dumb and comparing Kav to Cosby. You are really stupid.

I said "Things aren't always what they seem on the surface". People who appear nice or truthful may in fact not be.

Read before you post.

This exchange in the last few posts is an example of why I chose to use my User Control Panel to remove Bandito from my feed. We don't have a moderator system to enforce basic civility and actual exchange of ideas and opinions, information and insights. So, unfortunately, indicating "Foe" is the only way to reduce the amount of personal vitriol in your feed.

There are plenty of conservative leaning posters on here who can make their opinions understood coherently without resorting to spewing vitriol.

I happen to think that Kavanaugh may ultimately surprise to the upside, more of a "Roberts" than a "Thomas", though that is very far from assured. And it sure as heck is reasonable to express concern, given the way the process has been managed, the stakes at hand, and the reality that it's a life-time job.

The example of Cosby (and there are a whole heck of a lot of other examples of icons, successful people of supposed or presumed virtue who have proven to have been hiding their true stripes) is a fair refutation of taking for granted Kavanaugh's integrity. We can't simply assume that because Kavanaugh has in parts of his life demonstrated virtue that such is 100% guaranteed to be the whole story. On the other hand, I think it's certainly far, far better to have someone who has demonstrated virtue in key parts of his life than when we know that a person has had a highly disreputable past set of behaviors! (I'm thinking Trump here, obviously).

The issue of integrity in Kavanaugh's case is heightened by the lack of full transparency into his work product while in the White House (despite that President's approval of release) and the examples in which he appears to have not been entirely truthful in his prior confirmation process. It feels like there are things hidden. Add to that the unwillingness to be clear as to whether some cases (but not others) were properly decided in his judgment and the obfuscations inherent in those answers and non-answers. And particularly in light that, out of all the prospective justices on the list provided to Trump his chief distinguishing characteristic is his expansive view of the powers of the Presidency, it is reasonable to wonder whether he is to be trusted to be non-partisan and to truly be judicious in his approach.

[HooDat]

all this teeth gnashing about RvW is ridiculous. The SC is not going to overturn the precedent it has laid out because the conservative justices believe in stare decisis and the progressive judges who might feel more comfortable ruling from the hip are pro-choice.

This is one more way the D's and the R's are creating a false narrative of divisiveness.

[MDlaxfan76]

all this teeth gnashing about RvW is ridiculous. The SC is not going to overturn the precedent it has laid out because the conservative justices believe in stare decisis and the progressive judges who might feel more comfortable ruling from the hip are pro-choice.

This is one more way the D's and the R's are creating a false narrative of divisiveness.

Let's hope you are correct, but I'm not so sure that you are. There are lots of cases percolating that would effectively eliminate, or very, very seriously reduce, access in some states. They're headed to SCOTUS if a majority of the justices decide they want to hear them.

It's an interesting argument re stare decisis, but the reality is that 'conservative' justices have been just as 'activist' in overturning precedent, when given a chance, as 'progressive' justices, finding legal justification, indeed 'rights', where no such have existed historically.

Both sorts of justices do endeavor mightily to honor precedent, but have pretty much all made clear that if they believe the underlying case(s) were improperly decided by prior Courts, they will overturn them. Or if not overturn, to refine in ways that effectively neuter their prior impact.

But you would be correct that only Thomas has outright declared that he would overturn Roe entirely, if given a chance. My hunch is that Kavanaugh alone will not tip the scales, but one more under the Trump/Pence regime is wholly possible. Making the Merrick Garland nomination, who no one actually thought was not fully qualified (heck Kavanaugh thinks so), all the more of an issue to the historical outcome.

[seacoaster]

"Let's hope you are correct, but I'm not so sure that you are."

Bing.

[ChairmanOfTheBoard]

all this teeth gnashing about RvW is ridiculous. The SC is not going to overturn the precedent it has laid out because the conservative justices believe in stare decisis and the progressive judges who might feel more comfortable ruling from the hip are pro-choice.

This is one more way the D's and the R's are creating a false narrative of divisiveness.

agreed. quite a few things have to happen for this to even get there- and yet, the hysteria has already started.

question- if you actively overturn an activist decision, are you an... activist?

[seacoaster]

Interesting Opinion piece in the WaPo:

https://www.washingtonpost.com/opinions ... 1d46c89e2a

"No less a sage than Judge Amy Coney Barrett, one of Trump’s shortlist nominees, has admitted that it’s almost impossible to apply originalism faithfully because “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.” Yes, Brown v. Board of Education — the revered 1954 decision that outlawed racial segregation in schools — was an “activist” ruling. Does that mean it should be overturned? Not even Justice Antonin Scalia, the leading “textual originalist,” ever went so far.

When Scalia did attempt to apply his judicial philosophy, the results often (though not always) mirrored his political views. Scalia, for example, scoffed at the notion that the 14th Amendment’s equal-protection clause outlawed discrimination against women or gays. “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” he said. Yet in 2000, he and four other conservative justices decided that the 14th Amendment gave them the right to stop the Florida recount and thus make George W. Bush president. Did anyone in 1868 have that outcome in mind?"

[a fan]

I've said it before, and I'll say it again: there's a reason my logic professors made fun of the half *ssed "logic" used by lawyers.

If you're an originalist, the concept of precedent goes bye-bye. Ignore any and all previous cases, because guess what, buddy? Those cases aren't
in the Constitution, sorry.

If you're an originalist, any mention of anything but the Constitution and the exact case before you goes bye-bye.

Calling yourself an originalist is a placebo that makes fake conservatives feel better.

Scalia was just a guy, bootstrapping his justifications to his opinions. He can't possibly know what someone was thinking in 1868, no matter how hard he tries. What's more, he doesn't really care....he just wants to use this textual nonsense when it suits him. And when it doesn't? "14th amendment? What's that?"

Scalia served his country, and I thank him for that service. But in no way was he an originalist.

[HooDat]

spot on afan!

If you want to tell the legislature to do its job and write laws because you aren't going to write laws for them - that is one thing.

If you want to pretend to do a 240 year time traveling vulcan mind meld with the Founding Fathers - well good luck with that......

[seacoaster]

I know, we are all "hysterical," but here is the Dean of Supreme Court watchers of the last 30 or 40 years:

https://www.nytimes.com/2018/09/13/opin ... e=Homepage

"Most answers to the “What then?” question have offered side-by-side comparisons of Brett Kavanaugh and the justice he will be succeeding, Anthony Kennedy. What part of Justice Kennedy’s 30-year legacy will he embrace? What part will he repudiate?

I’d like to shift the field of vision and consider the impact of Judge Kavanaugh’s arrival on the eight other justices — on the dynamic of the Supreme Court as a whole. Justice Byron White, who saw 13 new justices take their seats during his own 31-year tenure, once remarked that every time a new justice joins the court, “it’s a different court.”

On one level, that’s a truism: In a group of people as small as nine, it’s hardly a surprise that the departure of one and arrival of another would alter some established patterns, even beyond a measurable shift in the group’s ideological midpoint. But it seems to me that Justice Kennedy’s departure and his replacement by a justice reliably to his right could well be transformative, and not just because the right to abortion may lose its tenuous hold or because the sun may finally set on affirmative action.


“Transformative” is a strong word. But consider the sustained impact that Justice Kennedy’s position in the center of the court had on colleagues both to his left and to his right. An odd-numbered court always has a center, of course, a “median justice,” in the language of political science. But Justice Kennedy was not just any median justice, and the court during the 12 years that he occupied that position after Justice Sandra Day O’Connor’s retirement was not a typical Supreme Court.

People may assume that the court has usually displayed some version of 4+4+Kennedy, but that’s not the case. The current extreme polarization, with most important issues resolved by votes of 5 to 4 and one justice in a position to determine the course of constitutional law, is a historic anomaly. When I started covering the court in the late 1970s, there were three or four justices clustered at the center to whom lawyers presenting their cases had to make their pitch. (Pop quiz: What was the vote in Roe v. Wade? Answer: 7 to 2.) Number-crunching no doubt could identify one or another of this group as the median justice during a given term, but in the absence of today’s polarization, the designation had far less significance than it has attained."

[HooDat]

seacoaster - it sounds like you are a bit of a watercooler expert on the SC. I am curious about your view on the polarization of the court. I want to know if I am seeing through a biased lens.

On the far right I see: Thomas

Leans right: Alito, Gorsuch

In the middle: Roberts (chief justice)

Leans left: Sotomayor

On the far left I see: Ginsburg, Breyer, and Kagan

How would you place the eight sitting justices on that spectrum?

From what I have read, my guess is that Kavanaugh will end up placing out as leans right

[MDlaxfan76]

seacoaster - it sounds like you are a bit of a watercooler expert on the SC. I am curious about your view on the polarization of the court. I want to know if I am seeing through a biased lens.

On the far right I see: Thomas

Leans right: Alito, Gorsuch

In the middle: Roberts (chief justice)

Leans left: Sotomayor

On the far left I see: Ginsburg, Breyer, and Kagan

How would you place the eight sitting justices on that spectrum?

From what I have read, my guess is that Kavanaugh will end up placing out as leans right

Hard not to see Roberts as generally right leaning, though he's an institutionalist. But in all 5-4 decisions with Kennedy the swing vote, Roberts has been on the conservative side. Kavanaugh would make five on the right for those 5-4 decisions that have been somewhat unpredictable over the last years due to Kennedy sing. One more would make it a hard right court. The concern specifically about Kavanaugh, like Gorsuch, is that they aren't just 'leaning' right, they're hard right. That said, I tend to think he'll be closer to Roberts than Thomas, but we just don't know.

[tech37]

As I said, desperate/duplicitous...

https://www.npr.org/2018/09/13/64751136 ... -nominatio

[Trinity]

Maybe he forgot.

[tech37]

get a life, trinity

[a fan]

As I said, desperate/duplicitous...

https://www.npr.org/2018/09/13/64751136 ... -nominatio

Sure, but if you’re going to play this card...that the Dems are playing games....ethically speaking, Gorsuch should be on the bench already.

Seeing as how the senate is in charge of SCOTUS appointment anyway, wasn’t the logic that appointing a Justice one month from an election “wrong”? Aren’t the voters supposed to have a voice?

Guess not, right?

You know my feelings on this and all Federal appointees: to the victor goes the spoils, so long as the appointee is reasonable. Kavanaugh, like Gorsuch, meets that standard and then some.

[Trinity]

Guys who dropped 42k documents the night before the hearing are upset with late information.

[Typical Lax Dad]

Guys who dropped 42k documents the night before the hearing are upset with late information.

What's the rush? The last administration's appointment was "held up".... congress didn't want to rush it....