Re: SCOTUS
Posted: Wed Dec 07, 2022 11:53 am
Katyal is DESTROYING these rude numbnuts. They don't care, they'll do what they want. Disgraceful.
..
..
Agreed, both parts. Katyal is destroying the underlying theory.
Page 260 of 308
Re: SCOTUS
Posted: Wed Dec 07, 2022 11:58 am
Re: SCOTUS
Posted: Wed Dec 07, 2022 12:20 pm
Very interesting.
It would be incredibly damaging for SCOTUS to adopt the independent legislature doctrine. "blast radius"...
Seems like they're trying to refine the standard under which a state court could overstep, but not so much to invalidate the court's role.
Alito seems the most problematic, but Gorsuch, Thomas...
It would be incredibly damaging for SCOTUS to adopt the independent legislature doctrine. "blast radius"...
Seems like they're trying to refine the standard under which a state court could overstep, but not so much to invalidate the court's role.
Alito seems the most problematic, but Gorsuch, Thomas...
Re: SCOTUS
Posted: Wed Dec 07, 2022 1:47 pm
OK, fellas, predictions?
Maybe it is wishful thinking, but I heard enough votes for the North Carolina Supreme Court decision to be affirmed. Six votes? Seven? Dare I say unanimous (probably not).
Don’t have any idea what rules and lines the SCt will draw, however.
Importantly (at least to me) I didn’t hear anything to suggest the Court has any appetite for the extreme application of the state legislature theory, whereby the state legislature could appoint Electors in a presidential election in defiance of how the citizens of their state voted.
That issue, of course, is not before the Court in this case. However the Court comes out here, I think the justices will carefully structure their opinion to avoid any suggestion that that extreme theory will fly.
Maybe it is wishful thinking, but I heard enough votes for the North Carolina Supreme Court decision to be affirmed. Six votes? Seven? Dare I say unanimous (probably not).
Don’t have any idea what rules and lines the SCt will draw, however.
Importantly (at least to me) I didn’t hear anything to suggest the Court has any appetite for the extreme application of the state legislature theory, whereby the state legislature could appoint Electors in a presidential election in defiance of how the citizens of their state voted.
That issue, of course, is not before the Court in this case. However the Court comes out here, I think the justices will carefully structure their opinion to avoid any suggestion that that extreme theory will fly.
Re: SCOTUS
Posted: Wed Dec 07, 2022 2:29 pm
Prediction:
Three votes say that the max ISLT is completely bogus. Two or three votes say that you can rein in rogue state courts under the due process clause. So the state legislature clause does not control this question.
Two or three whacko justices vote for the adoption of the whacko ISLT. How long until Clarence and Sam retire?
They'll both 100% step down if Joe loses in 2024. If Joe wins, they'll hang on to see who wins in 2028.
It is such complete bull shirt (given current hard ball politics and polarization) that justices are allowed to time their retirements to facilitate blatant partisanship. 18 year SCOTUS term limits please!!!
Three votes say that the max ISLT is completely bogus. Two or three votes say that you can rein in rogue state courts under the due process clause. So the state legislature clause does not control this question.
Two or three whacko justices vote for the adoption of the whacko ISLT. How long until Clarence and Sam retire?
They'll both 100% step down if Joe loses in 2024. If Joe wins, they'll hang on to see who wins in 2028.
It is such complete bull shirt (given current hard ball politics and polarization) that justices are allowed to time their retirements to facilitate blatant partisanship. 18 year SCOTUS term limits please!!!
Re: SCOTUS
Posted: Wed Dec 07, 2022 2:35 pm
5-4 sanity rules. Kavanaugh and Roberts vote with the sane judges.
Re: SCOTUS
Posted: Wed Dec 07, 2022 2:42 pm
Won't it be months before a decision is brought?
..
..
Re: SCOTUS
Posted: Thu Dec 08, 2022 7:36 am
SCOTUSblog's post-mortem:
https://www.scotusblog.com/2022/12/cour ... re-theory/
"The Supreme Court on Wednesday signaled that it may not be ready to adopt a sweeping interpretation of the Constitution, known as the “independent state legislature” theory, that would give state legislatures broad power to regulate federal elections without interference from state courts. Although some justices appeared receptive to that theory during nearly three hours of argument, it was not clear that there was a majority to endorse it, even as other justices focused on a narrower version of the theory that would preserve at least some role for state courts in enforcing state laws or the state constitution.
The dispute before the court in Moore v. Harper arose from a challenge to a new congressional map adopted by North Carolina’s Republican-controlled legislature in early November 2021. The North Carolina Supreme Court struck down the map after finding that it was a partisan gerrymander in violation of the North Carolina constitution. The question for the justices is whether the state court overstepped its authority under the U.S. Constitution’s elections clause, which says the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.”
Representing the Republican legislators, lawyer David Thompson maintained that the elections clause vests a state’s legislature with the power to make rules for federal elections. State courts cannot, he stressed, restrict a legislature’s substantive discretion to do so. Instead, he argued, state courts can only enforce procedural limits on the legislature’s authority.
Members of the court saw two main problems with Thompson’s argument. The first was the Supreme Court’s own precedent. Justice Elena Kagan ticked off a series of Supreme Court cases that, she said, make clear that state courts, applying a state’s constitution, can constrain the legislature’s power over federal elections.
Kagan later observed that Thompson’s argument was “a theory with big consequences” that could eliminate most of the “normal checks and balances” in government “at exactly the time when they are needed most” – such as the redistricting in this case, in which legislators have a strong incentive to create a map that will keep them in power. That’s why, Kagan noted, the Supreme Court has made clear that the legislature is subject to normal constraints even under the elections clause.
Chief Justice John Roberts also voiced skepticism about the broad power that Thompson was asserting. Thompson agreed with Roberts that a governor’s veto can limit the legislature’s power under the elections clause, pointing to the Supreme Court’s 1932 decision in Smiley v. Holm, in which the justices upheld the Minnesota governor’s veto of a congressional map enacted by the state legislature. Smiley, Roberts said, is “a pretty significant exception” that “undermines the legislature’s argument that it can do whatever it wants.”
Justice Neil Gorsuch had a different view. State legislatures have not uniformly regarded themselves as limited by their state constitutions on election issues, he said. During the Civil War, he observed, state constitutions would have barred absentee votes for soldiers stationed away from home, but the state legislatures refused to adhere to those limits. And he suggested that limits imposed by a governor’s veto, as in Smiley, are different from limits imposed by state courts, because the veto can be regarded as sharing legislative power.
Justice Ketanji Brown Jackson saw a related problem. In her view, because the state constitution creates the state legislature, the constraints contained in the constitution must apply to the legislature, even when it comes to the legislature’s power under the elections clause.
The justices raised a second set of concerns about Thompson’s proposed distinction between substantive limits on the legislature’s discretion and procedural ones. How, Justice Sonia Sotomayor asked Thompson, do you draw a line between those two sets of limits? Trying to do so, she suggested, would be a “logical morass.”
Justice Amy Coney Barrett appeared to agree, calling the distinction between substantive and procedural limits “notoriously difficult lines to draw.”
Thompson later offered an alternative option to the substantive/procedural distinction. Another possibility, he noted, would allow state courts to intervene to enforce the state constitution when there are “judicially discoverable and manageable” standards for the courts to use – for example, very specific rules about how to determine whether a map is the product of partisan gerrymandering. In this case, Thompson contended, the North Carolina Supreme Court relied on a provision in the state constitution that guarantees the right to free elections. That concept, he told Justice Sonia Sotomayor, is amorphous, so the court usurped the legislature’s policymaking function in interpreting it here.
Arguing on behalf of Democratic voters and non-profits that challenged the legislature’s congressional map, lawyer Neal Katyal cautioned that adopting Thompson’s theory would lead to the invalidation of “hundreds” of state constitutional provisions.
This argument seemed to gain some traction with Justice Brett Kavanaugh, who stopped short of endorsing a sweeping interpretation of the elections clause that would give legislatures near-complete authority. Nearly all state constitutions regulate federal elections, he observed. How, he asked Thompson, should the court deal with this historical practice in deciding this case?
Instead, Kavanaugh appeared receptive to a version of the theory, outlined by Chief Justice William Rehnquist in a concurrence in Bush v. Gore, that would still preserve a role for state courts – subject to oversight by federal courts if they went seriously astray.
Perhaps seeing this theory as the lesser of two evils, Katyal did not push back, although he insisted that the standard for a federal court to invalidate the state court’s interpretation would be “sky high.” And Don Verrilli, arguing on behalf of North Carolina executive-branch officials, suggested a possible test, which he characterized as the “best distillation” of Rehnquist’s concurrence in Bush v. Gore: whether the state court decision is “such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
U.S. Solicitor General Elizabeth Prelogar represented the Biden administration, which filed a brief supporting the Democratic voters and their allies. She too acceded to Kavanaugh’s version of the theory, emphasizing – like Katyal – that federal courts should be “very deferential” to state-court interpretations of state law. A state court would violate the elections clause, she added, if it is not acting as a court, but instead seizing the power to make policies.
Justice Samuel Alito appeared squarely aligned with Thompson and the legislators, and he resisted any suggestion that a ruling for them would pose a danger to American democracy. Noting that many state supreme courts are elected, he asked Katyal whether it advances democracy to transfer “the political controversy about redistricting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of redistricting.”
And Justice Clarence Thomas implied that opposition to the independent state legislature theory rested on partisanship, rather than constitutional principles. If the state legislature drew a map that was very generous to minority votes, he asked Katyal, but the state supreme court ruled that the map violated the state constitution, would you make the same argument? Katyal said yes.
Katyal warned that a ruling for the legislators would have a “blast radius” that would “sow election chaos” and lead to a flood of litigation. Faced with a scenario in which a state court had invalidated election regulations for state elections but not for federal elections, he added, states might have to hold two separate elections using two sets of rules.
Thompson concluded the oral argument with his own dire set of predictions. The state and the challengers, he told the justices, have also contended that a violation of the elections clause occurs when the state legislature is deprived of a “central role” in regulating elections. That test, Thompson said, would create “far more litigation.”
A decision in the case is expected by next summer."
https://www.scotusblog.com/2022/12/cour ... re-theory/
"The Supreme Court on Wednesday signaled that it may not be ready to adopt a sweeping interpretation of the Constitution, known as the “independent state legislature” theory, that would give state legislatures broad power to regulate federal elections without interference from state courts. Although some justices appeared receptive to that theory during nearly three hours of argument, it was not clear that there was a majority to endorse it, even as other justices focused on a narrower version of the theory that would preserve at least some role for state courts in enforcing state laws or the state constitution.
The dispute before the court in Moore v. Harper arose from a challenge to a new congressional map adopted by North Carolina’s Republican-controlled legislature in early November 2021. The North Carolina Supreme Court struck down the map after finding that it was a partisan gerrymander in violation of the North Carolina constitution. The question for the justices is whether the state court overstepped its authority under the U.S. Constitution’s elections clause, which says the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.”
Representing the Republican legislators, lawyer David Thompson maintained that the elections clause vests a state’s legislature with the power to make rules for federal elections. State courts cannot, he stressed, restrict a legislature’s substantive discretion to do so. Instead, he argued, state courts can only enforce procedural limits on the legislature’s authority.
Members of the court saw two main problems with Thompson’s argument. The first was the Supreme Court’s own precedent. Justice Elena Kagan ticked off a series of Supreme Court cases that, she said, make clear that state courts, applying a state’s constitution, can constrain the legislature’s power over federal elections.
Kagan later observed that Thompson’s argument was “a theory with big consequences” that could eliminate most of the “normal checks and balances” in government “at exactly the time when they are needed most” – such as the redistricting in this case, in which legislators have a strong incentive to create a map that will keep them in power. That’s why, Kagan noted, the Supreme Court has made clear that the legislature is subject to normal constraints even under the elections clause.
Chief Justice John Roberts also voiced skepticism about the broad power that Thompson was asserting. Thompson agreed with Roberts that a governor’s veto can limit the legislature’s power under the elections clause, pointing to the Supreme Court’s 1932 decision in Smiley v. Holm, in which the justices upheld the Minnesota governor’s veto of a congressional map enacted by the state legislature. Smiley, Roberts said, is “a pretty significant exception” that “undermines the legislature’s argument that it can do whatever it wants.”
Justice Neil Gorsuch had a different view. State legislatures have not uniformly regarded themselves as limited by their state constitutions on election issues, he said. During the Civil War, he observed, state constitutions would have barred absentee votes for soldiers stationed away from home, but the state legislatures refused to adhere to those limits. And he suggested that limits imposed by a governor’s veto, as in Smiley, are different from limits imposed by state courts, because the veto can be regarded as sharing legislative power.
Justice Ketanji Brown Jackson saw a related problem. In her view, because the state constitution creates the state legislature, the constraints contained in the constitution must apply to the legislature, even when it comes to the legislature’s power under the elections clause.
The justices raised a second set of concerns about Thompson’s proposed distinction between substantive limits on the legislature’s discretion and procedural ones. How, Justice Sonia Sotomayor asked Thompson, do you draw a line between those two sets of limits? Trying to do so, she suggested, would be a “logical morass.”
Justice Amy Coney Barrett appeared to agree, calling the distinction between substantive and procedural limits “notoriously difficult lines to draw.”
Thompson later offered an alternative option to the substantive/procedural distinction. Another possibility, he noted, would allow state courts to intervene to enforce the state constitution when there are “judicially discoverable and manageable” standards for the courts to use – for example, very specific rules about how to determine whether a map is the product of partisan gerrymandering. In this case, Thompson contended, the North Carolina Supreme Court relied on a provision in the state constitution that guarantees the right to free elections. That concept, he told Justice Sonia Sotomayor, is amorphous, so the court usurped the legislature’s policymaking function in interpreting it here.
Arguing on behalf of Democratic voters and non-profits that challenged the legislature’s congressional map, lawyer Neal Katyal cautioned that adopting Thompson’s theory would lead to the invalidation of “hundreds” of state constitutional provisions.
This argument seemed to gain some traction with Justice Brett Kavanaugh, who stopped short of endorsing a sweeping interpretation of the elections clause that would give legislatures near-complete authority. Nearly all state constitutions regulate federal elections, he observed. How, he asked Thompson, should the court deal with this historical practice in deciding this case?
Instead, Kavanaugh appeared receptive to a version of the theory, outlined by Chief Justice William Rehnquist in a concurrence in Bush v. Gore, that would still preserve a role for state courts – subject to oversight by federal courts if they went seriously astray.
Perhaps seeing this theory as the lesser of two evils, Katyal did not push back, although he insisted that the standard for a federal court to invalidate the state court’s interpretation would be “sky high.” And Don Verrilli, arguing on behalf of North Carolina executive-branch officials, suggested a possible test, which he characterized as the “best distillation” of Rehnquist’s concurrence in Bush v. Gore: whether the state court decision is “such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
U.S. Solicitor General Elizabeth Prelogar represented the Biden administration, which filed a brief supporting the Democratic voters and their allies. She too acceded to Kavanaugh’s version of the theory, emphasizing – like Katyal – that federal courts should be “very deferential” to state-court interpretations of state law. A state court would violate the elections clause, she added, if it is not acting as a court, but instead seizing the power to make policies.
Justice Samuel Alito appeared squarely aligned with Thompson and the legislators, and he resisted any suggestion that a ruling for them would pose a danger to American democracy. Noting that many state supreme courts are elected, he asked Katyal whether it advances democracy to transfer “the political controversy about redistricting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of redistricting.”
And Justice Clarence Thomas implied that opposition to the independent state legislature theory rested on partisanship, rather than constitutional principles. If the state legislature drew a map that was very generous to minority votes, he asked Katyal, but the state supreme court ruled that the map violated the state constitution, would you make the same argument? Katyal said yes.
Katyal warned that a ruling for the legislators would have a “blast radius” that would “sow election chaos” and lead to a flood of litigation. Faced with a scenario in which a state court had invalidated election regulations for state elections but not for federal elections, he added, states might have to hold two separate elections using two sets of rules.
Thompson concluded the oral argument with his own dire set of predictions. The state and the challengers, he told the justices, have also contended that a violation of the elections clause occurs when the state legislature is deprived of a “central role” in regulating elections. That test, Thompson said, would create “far more litigation.”
A decision in the case is expected by next summer."
Re: SCOTUS
Posted: Thu Dec 08, 2022 8:00 am
I finished reading a few moments ago what I thought was an actual article meant to inform and enlighten me about the SCOTUS. The author drifted off off into FLP liberal land when he started castigating several judges for their " MISREADING" of the constitution. A quick word for you Ian... when did you become an expert in reading and interpreting the constitution?? That is why we have 9 supreme court justices whose job it is to do just that very thing. I don't think they need your help. The correct terminology you should have used only requires a quick edit. How does this work Ian... IN MY OPINION THE JUSTICES MISINTERPRETED THE CONSTITUTION. I would think a trained media person would understand and comprehend when they have crossed over their reporting into the land of editorializing.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
Re: SCOTUS
Posted: Thu Dec 08, 2022 8:05 am
The Supreme Court’s Most Conservative Justices Got Humiliated on Wednesday
..In the end, Moore v. Harper probably comes down to Justice Amy Coney Barrett. Thomas, Alito, Gorsuch, and Kavanaugh have all endorsed the ISLT in the past. Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, clearly have no desire to revive it. So Moore is in Barrett’s hands, and it serves as the ultimate test of her self-proclaimed originalism.
So it was noteworthy that Barrett sounded audibly skeptical throughout Wednesday’s arguments. She was pretty tough on David Thompson, who represented North Carolina’s GOP legislative leaders, suggesting that his “formalistic test” was an unworkable stab at “trying to deal with our precedent,” which cut against him. Thompson tried to draw a line between “substantive and procedural,” but Barrett wasn’t buying it: “As a former civil procedure teacher, I can tell you that is a hard line to draw and a hard line to teach students in that context as well.” She also pointedly noted that Thompson’s standards for implementing the ISLT were not “more manageable” than the North Carolina Supreme Court’s standards for measuring gerrymanders. It was a polite way of calling Thompson a hypocrite.
Barrett’s questions for Katyal, Verrilli, and Prelogar were much more sympathetic. The justice essentially asked Katyal how the court should write a decision rejecting the ISLT. And she strongly implied to Verrilli that SCOTUS does not even have jurisdiction to hear this case. Overall, Barrett sounded eager to end Moore v. Harper with a whimper.
Which is what any honest originalist would be obligated to do. Scholars of American legal history, particularly in the founding era, have lined up in this case to explain why the ISLT is totally foreign to the laws and traditions of this nation. They have presented overwhelming evidence to support their position, evidence that is not remotely countered by the other side. There are so many political factors in this case. It is haunted by the ghosts of Bush v. Gore and Trump’s coup—both confirmation that the ISLT can be manipulated for scurrilous ends. But the promise of originalism is that it lets judges cut through these extralegal considerations and cling to the original public meaning of the Constitution. Moore v. Harper is one of the rare cases in which that meaning is crystal clear. If Barrett doesn’t let politics interfere, she can turn this awful case into originalism’s shining moment.
Re: SCOTUS
Posted: Thu Dec 08, 2022 8:11 am
Maybe it was an "opinion" piece?cradleandshoot wrote: ↑Thu Dec 08, 2022 8:00 am I finished reading a few moments ago what I thought was an actual article meant to inform and enlighten me about the SCOTUS. The author drifted off off into FLP liberal land when he started castigating several judges for their " MISREADING" of the constitution. A quick word for you Ian... when did you become an expert in reading and interpreting the constitution?? That is why we have 9 supreme court justices whose job it is to do just that very thing. I don't think they need your help. The correct terminology you should have used only requires a quick edit. How does this work Ian... IN MY OPINION THE JUSTICES MISINTERPRETED THE CONSTITUTION. I would think a trained media person would understand and comprehend when they have crossed over their reporting into the land of editorializing.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
https://www.vox.com/policy-and-politics ... h-carolina
Maybe he's qualified to give his opinion?
"Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a BA in philosophy from Kenyon College and a JD, magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court: Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America."
Re: SCOTUS
Posted: Thu Dec 08, 2022 8:14 am
It's a blog.Seacoaster(1) wrote: ↑Thu Dec 08, 2022 8:11 amMaybe it was an "opinion" piece?cradleandshoot wrote: ↑Thu Dec 08, 2022 8:00 am I finished reading a few moments ago what I thought was an actual article meant to inform and enlighten me about the SCOTUS. The author drifted off off into FLP liberal land when he started castigating several judges for their " MISREADING" of the constitution. A quick word for you Ian... when did you become an expert in reading and interpreting the constitution?? That is why we have 9 supreme court justices whose job it is to do just that very thing. I don't think they need your help. The correct terminology you should have used only requires a quick edit. How does this work Ian... IN MY OPINION THE JUSTICES MISINTERPRETED THE CONSTITUTION. I would think a trained media person would understand and comprehend when they have crossed over their reporting into the land of editorializing.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
https://www.vox.com/policy-and-politics ... h-carolina
Maybe he's qualified to give his opinion?
"Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a BA in philosophy from Kenyon College and a JD, magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court: Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America."
By someone quite well qualified to have an educated 'opinion'.
His informed read of the situation.
Apparently cradle thinks he's better qualified...
Re: SCOTUS
Posted: Thu Dec 08, 2022 11:32 am
... well I am in cradle's court, he is clearly better qualified, he knows the reason for the 3/5 th reference in the Constitution! Betcha Mr. Millhiser doesn't.MDlaxfan76 wrote: ↑Thu Dec 08, 2022 8:14 amIt's a blog.Seacoaster(1) wrote: ↑Thu Dec 08, 2022 8:11 amMaybe it was an "opinion" piece?cradleandshoot wrote: ↑Thu Dec 08, 2022 8:00 am I finished reading a few moments ago what I thought was an actual article meant to inform and enlighten me about the SCOTUS. The author drifted off off into FLP liberal land when he started castigating several judges for their " MISREADING" of the constitution. A quick word for you Ian... when did you become an expert in reading and interpreting the constitution?? That is why we have 9 supreme court justices whose job it is to do just that very thing. I don't think they need your help. The correct terminology you should have used only requires a quick edit. How does this work Ian... IN MY OPINION THE JUSTICES MISINTERPRETED THE CONSTITUTION. I would think a trained media person would understand and comprehend when they have crossed over their reporting into the land of editorializing.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
https://www.vox.com/policy-and-politics ... h-carolina
Maybe he's qualified to give his opinion?
"Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a BA in philosophy from Kenyon College and a JD, magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court: Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America."
By someone quite well qualified to have an educated 'opinion'.
His informed read of the situation.
Apparently cradle thinks he's better qualified...
Re: SCOTUS
Posted: Thu Dec 08, 2022 1:09 pm
jhu72 wrote: ↑Thu Dec 08, 2022 11:32 am... well I am in cradle's court, he is clearly better qualified, he knows the reason for the 3/5 th reference in the Constitution! Betcha Mr. Millhiser doesn't.MDlaxfan76 wrote: ↑Thu Dec 08, 2022 8:14 amIt's a blog.Seacoaster(1) wrote: ↑Thu Dec 08, 2022 8:11 amMaybe it was an "opinion" piece?cradleandshoot wrote: ↑Thu Dec 08, 2022 8:00 am I finished reading a few moments ago what I thought was an actual article meant to inform and enlighten me about the SCOTUS. The author drifted off off into FLP liberal land when he started castigating several judges for their " MISREADING" of the constitution. A quick word for you Ian... when did you become an expert in reading and interpreting the constitution?? That is why we have 9 supreme court justices whose job it is to do just that very thing. I don't think they need your help. The correct terminology you should have used only requires a quick edit. How does this work Ian... IN MY OPINION THE JUSTICES MISINTERPRETED THE CONSTITUTION. I would think a trained media person would understand and comprehend when they have crossed over their reporting into the land of editorializing.
FTR Ian Millhiser is his name. He does seem to think he has persuaded ACB to his more correct point of view. I'm simply dumbfounded how Ian never wound up on the supreme court.
https://www.vox.com/policy-and-politics ... h-carolina
Maybe he's qualified to give his opinion?
"Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a BA in philosophy from Kenyon College and a JD, magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of two books on the Supreme Court: Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America."
By someone quite well qualified to have an educated 'opinion'.
His informed read of the situation.
Apparently cradle thinks he's better qualified...
[/quote]
I’ll take that bet.
Re: SCOTUS
Posted: Thu Dec 08, 2022 8:18 pm
Evangelical Pastor with a guilty conscience spills the conservative judges' beans. This is so far from how SCOTUS should behave. If the liberal judges were doing this the right-wing blogosphere and Faux News would be apoplectic. Then the behavior of Alito talking out of court about court business to friends and Thomas' clear conflict of interest with his wife's business. This court will go down in history as the least professional, most political and most corrupt court ever!
The only question is will the conservative court now try to hang the Alito leaks on a patsy?
Desperate scum bags, a disgrace to the American people and the United States' judicial system.
The only question is will the conservative court now try to hang the Alito leaks on a patsy?
Desperate scum bags, a disgrace to the American people and the United States' judicial system.
Re: SCOTUS
Posted: Mon Dec 12, 2022 7:50 am
Get ready for "Common Good Constitutionalism"
Rightwing conservatism's new legal theory...
Rightwing conservatism's new legal theory...
..The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn.
Re: SCOTUS
Posted: Mon Dec 12, 2022 8:17 am
From diss: "If the liberal judges were doing this the right-wing blogosphere and Faux News would be apoplectic."
So true, and falling on so many pairs of deaf ears. Remember: shamelessness is their superpower. They don't care about the propriety of things, how things look, or if things are in fact improper. As long as the result is a "win" in some shorter term way, the Right is good with it, the corrosive impact on government, institutions and the community be damned.
So true, and falling on so many pairs of deaf ears. Remember: shamelessness is their superpower. They don't care about the propriety of things, how things look, or if things are in fact improper. As long as the result is a "win" in some shorter term way, the Right is good with it, the corrosive impact on government, institutions and the community be damned.
Re: SCOTUS
Posted: Mon Dec 12, 2022 8:22 am
Widely panned....dislaxxic wrote: ↑Mon Dec 12, 2022 7:50 am Get ready for "Common Good Constitutionalism"
Rightwing conservatism's new legal theory...
..The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn.
https://www.aei.org/articles/review-com ... tionalism/
"When a widely acclaimed Harvard Law School professor publishes a book that another Harvard Law professor calls “the most important book of constitutional theory in many decades,” it’s certainly worth a look. But Common Good Constitutionalism (Polity, 2022), despite all the praise, is more an embarrassment than a legal masterpiece.
In this book, Adrian Vermeule argues that a “classical law” system, derived from a combination of Roman, continental, and English common-law legal systems,can produce a community that achieves what he calls the “common good.” However, the political structure he devises is highly authoritarian, perhaps even totalitarian. He never successfully defines what he means by the common good or how it can be achieved, and he steps outside the subject of his book to attack originalism in constitutional interpretation as a political system without seeming to understand the limited nature of its role by the courts. He also doesn’t understand that there is a significant difference between originalism and textualism.
Given Vermeule’s prominence in the academic legal profession, it should be a matter of concern to all of us that he is proposing a governmental system that is not remotely consistent with a democratic republic or individual liberty.
A few quotes will demonstrate what he is willing to sacrifice to achieve his undefined “common good”:
The main aim of common good constitutionalism . . . is not the liberal goal of maximizing individual autonomy or minimizing the abuse of power—an incoherent goal in any event. . . . Instead it is to ensure that the ruler has both the authority and the duty to rule well.
Constitutional concepts such as liberty and equality need not be given libertarian or originalist readings. Instead . . . they can be read in the light of a better conception of liberty, as the natural human capacity to act in accordance with reasoned morality ordered to the common good.
The libertarian assumptions central to free speech law and free speech ideology—that government is forbidden to judge the quality and moral worth of public speech . . . will have to fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
Finally:
The crucial point is that the common good need not justify itself before the bar of democracy, but the reverse: democracy, like any other regime-form, is valuable only insofar as it contributes to the common good, and not otherwise.
Although these statements could easily be mistaken for declarations by Vladimir Lenin at the Finland Station or by Franz Kafka’s absurdities in The Trial, Vermeule believes that these measures will produce peace, justice, and abundance, which he defines as at least part of the common good. But as the name indicates, the common good means that everyone in the community has to be satisfied to one degree or another. So how possible or reasonable is it that the common good can be achieved in a community where free speech is denied and the common good is achieved by something called “reasoned morality”?
If nothing else, these ideas are a prescription for dictatorship, and that they originate with a highly regarded academic suggests that something beyond wokeness has infected American elites."
https://lawliberty.org/book-review/unco ... tionalism/
"When my son was two years old, he liked to play a game where he would walk out of his room with a blanket over his head and pretend that we could not see him. The game was funny except that he played it when he was trying to sneak out of bed after bedtime. He genuinely thought he was disguising himself but also vainly hoped that our laughter would earn him a few extra minutes of playtime. Unfortunately for him, it never did. In Common Good Constitutionalism, Adrian Vermeule plays the same game. He hopes to disguise his work as a sober manifesto for abandoning originalism in favor of a kind of reactionary substantive due process. Everyone can see through the disguise, so he hopes that a favorable response to his promised policy outcomes might earn him more of a hearing. Serious readers should not entertain such an idea. They should send him straight back to bed.
The core ideas of this book first appeared in March of 2020 in an Atlantic essay titled “Beyond Originalism.” Vermeule’s argument is that originalism and living constitutionalism are forms of legal positivism lacking the moral framework that, until recently, had been essential to American jurisprudence. This moral framework can be found in the “classical legal tradition” starting with Roman law, and moving through the legal theory of St. Thomas Aquinas, to the ragion di stato of sixteenth-century Italian scholar Giovanni Botero, and finally, to the framers of the American Constitution. Throughout these stages, regimes and their leaders understood law to be linked to a common good that had a metaphysical authority prior to any positive law. Laws were often silent on some issues, and where these silences occurred, legitimate authorities could fill in the gaps in a way that served the metaphysical authority.
For Vermeule, legitimate legal authorities, not citizens, have the default authority to decide the common good. He says that the main aim of his theory is that “the ruler has both the authority and the duty to rule well” and continues:
A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler because protecting them promotes the flourishing of the community.
Hence, where the law is silent, citizens do not retain the right to act at their own discretion but rather must await rulings from legitimate authorities on whether to act. These authorities have to determine if any individual action serves the common good. In more concrete, contemporary terms, this means that Vermeule regards judges and the administrative state as keepers of the common good who oversee the activities of citizens who are free only insofar as the judicial and administrative states allow them to be—for their own good.
The problems with Vermeule’s argument are numerous, but I will confine myself to three. The first is the quality of argumentation. The second is his use of history. The third is his interpretation of the common good as it pertains to regimes and the law. I will leave his treatment of case law and theories of judicial interpretation to other reviewers....."
Re: SCOTUS
Posted: Mon Dec 12, 2022 8:31 am
Should there be tenure in higher ed? This sort of stuff begs that question. (I’d argue same w Elizabeth Warrens run at Harvard)Seacoaster(1) wrote: ↑Mon Dec 12, 2022 8:22 amWidely panned....dislaxxic wrote: ↑Mon Dec 12, 2022 7:50 am Get ready for "Common Good Constitutionalism"
Rightwing conservatism's new legal theory...
..The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn.
https://www.aei.org/articles/review-com ... tionalism/
"When a widely acclaimed Harvard Law School professor publishes a book that another Harvard Law professor calls “the most important book of constitutional theory in many decades,” it’s certainly worth a look. But Common Good Constitutionalism (Polity, 2022), despite all the praise, is more an embarrassment than a legal masterpiece.
In this book, Adrian Vermeule argues that a “classical law” system, derived from a combination of Roman, continental, and English common-law legal systems,can produce a community that achieves what he calls the “common good.” However, the political structure he devises is highly authoritarian, perhaps even totalitarian. He never successfully defines what he means by the common good or how it can be achieved, and he steps outside the subject of his book to attack originalism in constitutional interpretation as a political system without seeming to understand the limited nature of its role by the courts. He also doesn’t understand that there is a significant difference between originalism and textualism.
Given Vermeule’s prominence in the academic legal profession, it should be a matter of concern to all of us that he is proposing a governmental system that is not remotely consistent with a democratic republic or individual liberty.
A few quotes will demonstrate what he is willing to sacrifice to achieve his undefined “common good”:
The main aim of common good constitutionalism . . . is not the liberal goal of maximizing individual autonomy or minimizing the abuse of power—an incoherent goal in any event. . . . Instead it is to ensure that the ruler has both the authority and the duty to rule well.
Constitutional concepts such as liberty and equality need not be given libertarian or originalist readings. Instead . . . they can be read in the light of a better conception of liberty, as the natural human capacity to act in accordance with reasoned morality ordered to the common good.
The libertarian assumptions central to free speech law and free speech ideology—that government is forbidden to judge the quality and moral worth of public speech . . . will have to fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
Finally:
The crucial point is that the common good need not justify itself before the bar of democracy, but the reverse: democracy, like any other regime-form, is valuable only insofar as it contributes to the common good, and not otherwise.
Although these statements could easily be mistaken for declarations by Vladimir Lenin at the Finland Station or by Franz Kafka’s absurdities in The Trial, Vermeule believes that these measures will produce peace, justice, and abundance, which he defines as at least part of the common good. But as the name indicates, the common good means that everyone in the community has to be satisfied to one degree or another. So how possible or reasonable is it that the common good can be achieved in a community where free speech is denied and the common good is achieved by something called “reasoned morality”?
If nothing else, these ideas are a prescription for dictatorship, and that they originate with a highly regarded academic suggests that something beyond wokeness has infected American elites."
https://lawliberty.org/book-review/unco ... tionalism/
"When my son was two years old, he liked to play a game where he would walk out of his room with a blanket over his head and pretend that we could not see him. The game was funny except that he played it when he was trying to sneak out of bed after bedtime. He genuinely thought he was disguising himself but also vainly hoped that our laughter would earn him a few extra minutes of playtime. Unfortunately for him, it never did. In Common Good Constitutionalism, Adrian Vermeule plays the same game. He hopes to disguise his work as a sober manifesto for abandoning originalism in favor of a kind of reactionary substantive due process. Everyone can see through the disguise, so he hopes that a favorable response to his promised policy outcomes might earn him more of a hearing. Serious readers should not entertain such an idea. They should send him straight back to bed.
The core ideas of this book first appeared in March of 2020 in an Atlantic essay titled “Beyond Originalism.” Vermeule’s argument is that originalism and living constitutionalism are forms of legal positivism lacking the moral framework that, until recently, had been essential to American jurisprudence. This moral framework can be found in the “classical legal tradition” starting with Roman law, and moving through the legal theory of St. Thomas Aquinas, to the ragion di stato of sixteenth-century Italian scholar Giovanni Botero, and finally, to the framers of the American Constitution. Throughout these stages, regimes and their leaders understood law to be linked to a common good that had a metaphysical authority prior to any positive law. Laws were often silent on some issues, and where these silences occurred, legitimate authorities could fill in the gaps in a way that served the metaphysical authority.
For Vermeule, legitimate legal authorities, not citizens, have the default authority to decide the common good. He says that the main aim of his theory is that “the ruler has both the authority and the duty to rule well” and continues:
A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler because protecting them promotes the flourishing of the community.
Hence, where the law is silent, citizens do not retain the right to act at their own discretion but rather must await rulings from legitimate authorities on whether to act. These authorities have to determine if any individual action serves the common good. In more concrete, contemporary terms, this means that Vermeule regards judges and the administrative state as keepers of the common good who oversee the activities of citizens who are free only insofar as the judicial and administrative states allow them to be—for their own good.
The problems with Vermeule’s argument are numerous, but I will confine myself to three. The first is the quality of argumentation. The second is his use of history. The third is his interpretation of the common good as it pertains to regimes and the law. I will leave his treatment of case law and theories of judicial interpretation to other reviewers....."
Companies pretty much as a good hygiene matter rotate auditors every 3-5yrs so shouldn’t institutions of higher Ed force some rotation of minds educating their next generation?
Re: SCOTUS
Posted: Thu Jan 19, 2023 8:22 am
Get your popcorn ready
https://www.nytimes.com/2023/01/19/tech ... media.html
"Supreme Court Poised to Reconsider Key Tenets of Online Speech
The cases could significantly affect the power and responsibilities of social media platforms."
https://www.nytimes.com/2023/01/19/tech ... media.html
"Supreme Court Poised to Reconsider Key Tenets of Online Speech
The cases could significantly affect the power and responsibilities of social media platforms."