Roe vs Wade vs SCOTUS legitimacy

[*michaelsean*]

The genie is out of the bottle. I think it would be a big mistake to reverse it now. I’m disgusted with myself for thinking that.

[Dill]

(12-05-2021, 07:47 PM)Belsnickel Wrote: Sociopathicsteelerfan Wrote:[i]You made some very good points that I omitted, but I wanted to focus on this.  I think it absolutely must be emphasized that this is a sword that cuts both ways.  Every POTUS nominates justices that they believe will make decisions compatible with their beliefs.  In this regard neither side is different.  Why is Sotomayor or Kagan given a pass on partisanship, which they both clearly are, but the conservative justices are not?  The answer to that goes a long way towards explaining the opinions I posted earlier.

Oh, I don't disagree at all. There are plenty of progressive court rulings I have disagreed with as I maintain they were made with an eye towards politics rather than the Constitution. My issue is that the first step we need to make as a country towards any sort of reform of the judiciary is to stop pretending they are above politics.

I sort of agree with the bolded; though it requires some disambiguation. 

Just because presidents appoint justices who will "make decisions compatible with [the president's] beliefs," and justices then do just that when seated, doesn't mean all are guilty of some nefarious "partisanship" and/or acting "with an eye towards politics rather than the Constitution." 

It isn't possible for presidents to nominate and justices to rule without employing some "partisan" conception of the common good. By "not possible" I mean the notion of politics-free judgment in politics is conceptually incoherent at its root. (I believe you were making this point in a previous post.) If there were such a thing as politics-free judgment, our current system of liberal democracy could not operate with it. 

That means we ought to be judging SCOTUS nominations and decisions on some ground other than the expectation they be "above politics." (If I understand you, we agree about this.) Rather, everything depends on the "partisan beliefs" in question. (Not sure if you agree with me about this.) For people who thought that blacks were inferior to whites and the U.S. was founded as a Saxon nation, the Dredd Scott decision was both derived from and clarifying/defining Constitutional principle. People who disagree with that decision generally do so not because they are less partisan (quite the opposite), but because the are proceeding from different extra-Constitutional principles than Justice Taney.

Everything also depends on what might be called political or civil culture, the unwritten standards of the voting populace regarding what constitutes fair play--the kind of judgment which operates through and around explicitly political actions like proposing legislation and interpreting the Constitution from the bench. You remember FDR's attempts to pack the courts were opposed by members of his own party, but the Supreme Court also moderated its behavior following that episode. The Democrats opposing FDR were not acting "above politics," but upholding a particular version of it opposed to the president's in that case. 

The danger in acknowledging the bolded above, though, is that many will draw a different conclusion from it than I would, perhaps from you too. For them, "its all politics" validates an anti-democratic politics of the sort playing out in Trump's slow moving coup. This group doesn't simply include avid Trump supporters, but also those who can't see how this constitutes a great threat to liberal democracy as we have known it. "Both sides" are assumed to be playing the same "biased" or "partisan" game. Lost in the equivocation is the ability to discern what sort of actions support a liberal democratic political system and which render it dysfunctional or broken.

NB: I am still working through the position presented here, not certain of all its implications; so it is not "fixed" yet. Interrogation from any angle is welcome.

[Sociopathicsteelerfan]

(12-05-2021, 07:47 PM)Belsnickel Wrote: Oh, I don't disagree at all. There are plenty of progressive court rulings I have disagreed with as I maintain they were made with an eye towards politics rather than the Constitution. My issue is that the first step we need to make as a country towards any sort of reform of the judiciary is to stop pretending they are above politics.

I know you don't, and my bad if my statement implied otherwise.  However, it's rather like the issues we both saw during the Rittenhouse trial.  That judge made consistent rulings based on the law and, based on what side of that issue you were on many saw him as politically partisan.  So while I certainly agree that judicial appointments, being so connected to the political process, will absolutely produce partisan actors I think we need to be careful about how wide a brush we use when declaring the judiciary beholden to politics.  I absolutely think that many bench officers do their best to interpret the law impartially and I also see a real danger in branding the entire system as irredeemably political.

To further expand on my initial point, the 9th Circuit just upheld CA's magazine capacity limit.  In so doing they clearly and utterly disregarded the "in common use" qualifier clearly set down in the Heller decision.  For some reason you don't hear the same people howling about judicial activism and the value of precedent in regard to that decision.  Ironically, the very topic of the thread, the Roe decision, was a very clear case of judicial activism.  They literally created abortion as a constitutional right out of whole cloth.  The same sex marriage decision could absolutely be seen through the same lens.  Please note, I agree with both decisions, although the reasoning behind Roe is on far shakier ground.

So, to anyone reading who cares, don't buy for a second the idea that this is a uniquely right or left problem.  Anyone claiming this is an issue solely with one party is uninformed or blatantly partisan.  Clarence Thomas is no less or more of a "sure thing" for his side than Sotomayor is for hers.

[CJD]

(12-04-2021, 02:56 PM)GMDino Wrote: I posted about it (kind of) in another abortion thread:

Madison Cawthorn is such an insufferable little prick.

[Belsnickel]

So, in light of the ruling in this abortion case, California has decided to apply these principles to firearms.



This was actually predicted by many. The Firearms Policy Coalition (FPC) even filed a brief with SCOTUS for the Texas case saying that allowing this Texas law to stand would open the door for this to be applied to other rights.

This is going to be interesting to watch.

[Au165]

(12-12-2021, 08:06 AM)Belsnickel Wrote: So, in light of the ruling in this abortion case, California has decided to apply these principles to firearms.



This was actually predicted by many. The Firearms Policy Coalition (FPC) even filed a brief with SCOTUS for the Texas case saying that allowing this Texas law to stand would open the door for this to be applied to other rights.

This is going to be interesting to watch.

It’s not going to stop at fire arms. Just imagine a world where any private citizen can be sued for any partisan issue from anywhere in the country with no ability recoup legal fees. The enforcement mechanism was always a horrible idea and should have been struck down immediately, but here we are.

[Sociopathicsteelerfan]

(12-12-2021, 08:06 AM)Belsnickel Wrote: So, in light of the ruling in this abortion case, California has decided to apply these principles to firearms.



This was actually predicted by many. The Firearms Policy Coalition (FPC) even filed a brief with SCOTUS for the Texas case saying that allowing this Texas law to stand would open the door for this to be applied to other rights.

This is going to be interesting to watch.

There's a slight flaw in Governor Gordon Gecko's plan.  It is not permissible, by federal law, to sue firearms manufacturers for the misuse of their product.  As preemption prohibits state law from superseding federal law this will get nuked from orbit once it's signed into law.  It won't even sniff the SCOTUS unless a 9th Circuit judge utterly ignores the law.

[Belsnickel]

(12-12-2021, 02:01 PM)Sociopathicsteelerfan Wrote: There's a slight flaw in Governor Gordon Gecko's plan.  It is not permissible, by federal law, to sue firearms manufacturers for the misuse of their product.  As preemption prohibits state law from superseding federal law this will get nuked from orbit once it's signed into law.  It won't even sniff the SCOTUS unless a 9th Circuit judge utterly ignores the law.

I don't think that is a flaw, here. It isn't allowing for suits based on misuse. This is saying that if you make, sell, or otherwise distribute a firearm the state doesn't want in their state, then another citizen can sue you for that. This would create a civil statute and isn'tabout liability in a criminal act, which means it wouldn't trigger PLCAA at all.

[Sociopathicsteelerfan]

(12-12-2021, 03:33 PM)Belsnickel Wrote: I don't think that is a flaw, here. It isn't allowing for suits based on misuse. This is saying that if you make, sell, or otherwise distribute a firearm the state doesn't want in their state, then another citizen can sue you for that. This would create a civil statute and isn'tabout liability in a criminal act, which means it wouldn't trigger PLCAA at all.

If so then the proposed law means absolutely nothing.  It's already illegal to sell an "assault weapon" in CA, so if you're injured by someone who illegally purchased such a firearm then you already have the ability to sue them civilly, and the person who illegally sold them the firearm.  Looks like grandstanding and an attempt to draw a false equivalency with the Texas law.

[Belsnickel]

(12-12-2021, 05:12 PM)Sociopathicsteelerfan Wrote: If so then the proposed law means absolutely nothing.  It's already illegal to sell an "assault weapon" in CA, so if you're injured by someone who illegally purchased such a firearm then you already have the ability to sue them civilly, and the person who illegally sold them the firearm.  Looks like grandstanding and an attempt to draw a false equivalency with the Texas law.

Well, yes, that's exactly what it is, but you're wrong about it meaning nothing. The reason for California doing this is because of the challenges to gun control going through the courts and the perceived gun friendly SCOTUS. The premise behind the Texas law is that it skirts the constitutional question because it is enforced by the people and not the state. California is going to do this to apply the same logic to their AWB. If the courts strike down their laws or similar laws that criminalize distribution and possession of certain firearms, then they will have a fallback in their civil code. It is grandstanding, but it does more than you realize. It sends a message about the absurdity of the Texas law and also shows the proponents of the law that it will be used against them in other arenas.

I should also point out that you don't need to be injured to sue in this case. Much like the abortion law in Texas, you just have to suspect that someone participated in the ownership, selling, or distribution of said firearms. You could live in California, and see on social media someone post something with one in the background, and you could file suit.

[Sociopathicsteelerfan]

(12-12-2021, 05:23 PM)Belsnickel Wrote: Well, yes, that's exactly what it is, but you're wrong about it meaning nothing. The reason for California doing this is because of the challenges to gun control going through the courts and the perceived gun friendly SCOTUS. The premise behind the Texas law is that it skirts the constitutional question because it is enforced by the people and not the state. California is going to do this to apply the same logic to their AWB. If the courts strike down their laws or similar laws that criminalize distribution and possession of certain firearms, then they will have a fallback in their civil code. It is grandstanding, but it does more than you realize. It sends a message about the absurdity of the Texas law and also shows the proponents of the law that it will be used against them in other arenas.

I should also point out that you don't need to be injured to sue in this case. Much like the abortion law in Texas, you just have to suspect that someone participated in the ownership, selling, or distribution of said firearms. You could live in California, and see on social media someone post something with one in the background, and you could file suit.

Well reasoned.  It raises an interesting secondary consideration though.  If Newsome has stated publicly that the Texas law is unconstitutional, which I have to imagine he has, then enacting the same type of law for a protection clearly stated in the Bill of Rights would be a direct violation of his oath of office by his own admission.  Would that not open the state, and possibly himself, to massive civil lawsuits from anyone affected?  In Texas than could at least feign ignorance, as the issue has not been ruled on.  But if the governor flat out stated that what is happening is unconstitutional and then does the exact same thing in his own state he has no such ability.

[Belsnickel]

(12-12-2021, 05:48 PM)Sociopathicsteelerfan Wrote: Well reasoned.  It raises an interesting secondary consideration though.  If Newsome has stated publicly that the Texas law is unconstitutional, which I have to imagine he has, then enacting the same type of law for a protection clearly stated in the Bill of Rights would be a direct violation of his oath of office by his own admission.  Would that not open the state, and possibly himself, to massive civil lawsuits from anyone affected?  In Texas than could at least feign ignorance, as the issue has not been ruled on.  But if the governor flat out stated that what is happening is unconstitutional and then does the exact same thing in his own state he has no such ability.

Someone can state that they believe something to be unconstitutional, but the SCOTUS is the arbiter of that. If SCOTUS says the Texas law passes muster, then Newsome's personal position doesn't really matter in that regard. All of that being said, the court explicitly did not rule on the constitutionality of the law. They punted on that issue.

[Sociopathicsteelerfan]

(12-12-2021, 06:21 PM)Belsnickel Wrote: Someone can state that they believe something to be unconstitutional, but the SCOTUS is the arbiter of that. If SCOTUS says the Texas law passes muster, then Newsome's personal position doesn't really matter in that regard. All of that being said, the court explicitly did not rule on the constitutionality of the law. They punted on that issue.

To be sure, but I'm speaking to intent.  If you publicly state that "x" law in unconstitutional but then propose the exact same law you are, by definition, engaging in a practice that you have stated is unconstitutional.  Newsome is certainly not the arbiter of what is, and is not, constitutional, but if he knowingly signs a bill into law that he has declared unconstitutional then he is, be default, deliberately engaging in conduct he believes violates his oath of office.  Intent is a huge part of this and he has already declared his intent.  He has no shield from consequences in this regard due to his own proclamations.  

[*TheLeonardLeap*]

(12-04-2021, 07:05 PM)Belsnickel Wrote: The problem lies in the attitude that the SCOTUS is somehow non-political. People like to pretend that it is somehow above politics, and not to bash SSF, but that's the idea that his position is rooted in. It's naïve. The justices are political actors. Plain and simple. They always have been and they always will be. There isn't anything that can really change that. Should their personal and partisan beliefs color their decisions? Absolutely not, but we know they do. Sometimes they line up with the will of the people, sometimes they don't. I've become apathetic to the efforts from other branches to influence the court for this very reason.

Also, for anyone that wants to talk about reforming the court by implementing term limits, just know that it would further politicize the court because then it would be known when a justice would leave, thus making elections even more about the bench and would create a much more partisan bench. I just wanted to head that off at the pass because it is a terrible idea.

[GMDino]

I thought this statement was pretty on the nose.

Abortion is not a divisive issue. It’s a gerrymandered one. https://t.co/EbXv8kNCg6

— Renee Bracey Sherman (@RBraceySherman) January 23, 2022

This is why republicans don't do anything about it when they have power...if it goes away they lose another thing to rile the base about.

[Sociopathicsteelerfan]

(01-23-2022, 12:58 PM)GMDino Wrote: I thought this statement was pretty on the nose.

Abortion is not a divisive issue. It’s a gerrymandered one. https://t.co/EbXv8kNCg6

— Renee Bracey Sherman (@RBraceySherman) January 23, 2022

This is why republicans don't do anything about it when they have power...if it goes away they lose another thing to rile the base about.

Kind of like the Dems and gun control, eh?  Welcome to SSF's comments made over a decade ago.  It took awhile, but you reached that finish line!

[GMDino]

Not to get to far astray but Democrats actually offer up solutions that are immediately turned into "taking away your guns/freedom" and fascism/socialism/communism.  The opposite of abortion.

https://www.foxnews.com/politics/fox-news-poll-most-back-gun-restrictions-after-shootings-trump-ratings-down

Quote:In the wake of two mass shootings, overwhelming and bipartisan majorities of voters favor background checks on gun buyers and taking guns from people who are a danger to themselves or others, according to the latest Fox News Poll. Two-thirds also support a ban on “assault weapons,” although that majority is largely driven by Democrats.


But asked to choose one or the other, voters would rather live in a country where gun ownership is legal than one where guns are banned.


The poll was conducted August 11-13, about a week after mass shootings involving assault-style weapons in El Paso, Texas and Dayton, Ohio. The alleged El Paso shooter reportedly penned an anti-immigrant manifesto. The motive of the alleged Dayton shooter is unknown.

An equal number, 56 percent, place a great deal of blame for mass shootings on easy access to guns and a lack of services for mentally ill people with violent tendencies.  Four in 10 blame expressions of white nationalism (40 percent) and inadequate parenting (39 percent). About a third point to sentiments expressed by President Trump (34 percent) and anti-immigrant sentiment (33 percent). Less than a quarter say violent video games (23 percent) and sentiments expressed by Democratic political leaders (15 percent).


Democrats are most likely to blame easy access to guns (79 percent), expressions of white nationalism (62 percent), and Trump (59 percent). For Republicans, it’s a lack of services for mental illness (60 percent), bad parenting (54 percent), and access to guns (32 percent).


When voters are asked to say in their own words why mass shootings happen more often in the U.S. than elsewhere, their top three responses are: access to guns (35 percent), mental health issues (22 percent), and Trump rhetoric (10 percent).

On specific measures to reduce gun violence, there’s broad support for requiring criminal background checks on all gun buyers (90 percent) and passing “red flag” laws that allow police to take guns from people shown to be a danger to themselves or others (81 percent).


CLICK HERE TO READ THE POLL RESULTS


Fewer, although still a sizable 67 percent majority, favor banning assault rifles and semi-automatic weapons. That’s up from 60 percent in 2018.  Support includes over half of those living in a gun-owner household (53 percent). Over half of independents (58 percent) and an overwhelming majority of Democrats (86 percent) favor a ban.  Republicans split 46-46 percent, which is a shift from 2018 when it was 41 favor vs. 56 oppose.



Most Democrats (88 percent) and Republicans (75 percent) favor “red flag” laws, as do voters in gun households (77 percent). Universal background checks are favored by 9 in 10 Democrats (92 percent), Republicans (89 percent), and gun households (93 percent).

Some 71 percent think the government has the ability to reduce gun violence, yet only 18 percent feel it’s extremely or very likely Congress will act this year -- and 42 percent say there’s no chance at all.

[Belsnickel]

Both guns and abortion are issues of individual liberties. Neither the right to liberty, which is what is infringed upon with an abortion prohibition, nor the right to keep and bear arms should be taken away without the due process of law.

Apart from that, any law that infringes upon individual liberties should be rooted in evidence. There should be a very high bar that says restricting these liberties will be a large benefit to the public good. That cannot be said for things like assault weapons bans or for abortion bans.

[GMDino]

(01-24-2022, 11:08 AM)Belsnickel Wrote: Both guns and abortion are issues of individual liberties. Neither the right to liberty, which is what is infringed upon with an abortion prohibition, nor the right to keep and bear arms should be taken away without the due process of law.

Apart from that, any law that infringes upon individual liberties should be rooted in evidence. There should be a very high bar that says restricting these liberties will be a large benefit to the public good. That cannot be said for things like assault weapons bans or for abortion bans.

No argument from me.  I'm just pointing out that the general public agrees in both instances versus "both sides" using them as wedge issues with no support.

[Sociopathicsteelerfan]

(01-24-2022, 11:08 AM)Belsnickel Wrote: Both guns and abortion are issues of individual liberties. Neither the right to liberty, which is what is infringed upon with an abortion prohibition, nor the right to keep and bear arms should be taken away without the due process of law.

Apart from that, any law that infringes upon individual liberties should be rooted in evidence. There should be a very high bar that says restricting these liberties will be a large benefit to the public good. That cannot be said for things like assault weapons bans or for abortion bans.

Additionally the responses to question like "are you in favor of universal background checks" change when the information is included that such a proposal would require a nationwide gun registry.  I don't know a single gun owner who has an issue with background checks to purchase a firearm.  I also don't know a single gun owner who is in favor of a national registry, or rather isn't 100% opposed to it.  I also don't have an issue with red flag laws, but the person named should have the option to turn their firearms over to a registered private entity and not the state.  If you had any idea how much of a headache it is getting your firearm back from a LEA you'd understand why.

Lastly, as we both know, "assault weapon" bans are the height of circle jerk idiocy.  They're based on arbitrary features that have nothing to do with the lethality of the weapon.  Additionally, they are used in criminal activity at a statistically insignificant rate, and I'm speaking nationwide.  I know you know this, but someone else reading this may not.