[Discussion] Supreme court vacancy

Thread about the current (2016) Supreme Court vacancy and the issues surrounding filling it.

Senate Republicans go ‘nuclear,’ pave the way for Gorsuch confirmation to Supreme Court
Actual confirmation vote is scheduled for around noon, tomorrow.

I'm just appalled. Un-freakin'-believable.
I knew something like this would eventually come, but...

So in summary, evangelical voters held their noses and voted for a man they would have moralized against *constantly* if he was a Democrat. They held their noses and voted for a man that's endangering the entire republic and the world. All so they could get a Supreme Court seat they stole and hopefully turn back Row vs. Wade, put the Bible in schools, etc.

There should be no forgiveness for this. Ever. No quarter given. They were willing to do literally anything for this fight.

So all those babies can be forced to be born in a country that's half underwater from global warming and rising sea levels. Good times.

Maybe we should build a sea wall instead of a border wall.

DSGamer wrote:

All so they could get a Supreme Court seat they stole and hopefully turn back Row vs. Wade, put the Bible in schools, etc.

There should be no forgiveness for this. Ever. No quarter given. They were willing to do literally anything for this fight.

I love working up a good partisan head of steam as much as anyone else, but just a gentle reminder that the actual balance of the court isn't changing all that much, and is probably actually moderating a little bit.

Nothing will pass or be struck down under Gorsuch that wouldn't have also passed or been struck down over the past few years.

If anything he might recuse himself from the juiciest Trump cases and push things even more left.

NormanTheIntern wrote:
DSGamer wrote:

All so they could get a Supreme Court seat they stole and hopefully turn back Row vs. Wade, put the Bible in schools, etc.

There should be no forgiveness for this. Ever. No quarter given. They were willing to do literally anything for this fight.

I love working up a good partisan head of steam as much as anyone else, but just a gentle reminder that the actual balance of the court isn't changing all that much, and is probably actually moderating a little bit.

It's not partisan, though. Go read my police state threads for my bona fides, but I believe in fairness. And the way the seat was stolen was not fair. And the depths to which the GOP has sunk (getting into bed with Trump) has disqualified them from the moral high ground for a long long time.

NormanTheIntern wrote:

Nothing will pass or be struck down under Gorsuch that wouldn't have also passed or been struck down over the past few years.

If anything he might recuse himself from the juiciest Trump cases and push things even more left.

It doesn't matter. It's how it happened and why it happened that matters to me. It's the cost. Like Stele said. They literally threw all morality and values and pragmatism out the window because of 1 issue. I hope it was worth it.

Stele wrote:

So all those babies can be forced to be born in a country that's half underwater from global warming and rising sea levels. Good times.

Maybe we should build a sea wall instead of a border wall.

I wonder if a lot of the kind of religious people who were moved to vote by this one issue care all that much about the people living on the coasts.

Flood the Swamp?

Washington Post wrote:

Among Democratic senators, three moderates — Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin III (W. Va.) — who have faced a barrage of television ads in their home states to support Gorsuch, joined with the 51 Republicans who voted on Friday. Sen. Johnny Isakson (R-Ga.), who is recovering from recent back surgeries, was absent on Friday.

This is so disgusting/shameful. And it is not that the Democratic Senators confirmed Gorsuch. It is because ads for a supreme court justice existed and that people in those states didn't outright reject them. Lastly, the only time I saw one of the Gorsuch ads was on MSNBC.

fangblackbone wrote:
Washington Post wrote:

Among Democratic senators, three moderates — Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin III (W. Va.) — who have faced a barrage of television ads in their home states to support Gorsuch, joined with the 51 Republicans who voted on Friday. Sen. Johnny Isakson (R-Ga.), who is recovering from recent back surgeries, was absent on Friday.

This is so disgusting/shameful. And it is not that the Democratic Senators confirmed Gorsuch. It is because ads for a supreme court justice existed and that people in those states didn't outright reject them. Lastly, the only time I saw one of the Gorsuch ads was on MSNBC.

Even here in Oregon they were running Gorsuch ads constantly on news channels. They outspent liberals (after ruling that money is speech). And the used that money to advertise for a Supreme Court seat after previously blocking that seat. The whole thing is so gross.

DSGamer wrote:

Even here in Oregon they were running Gorsuch ads constantly on news channels. They outspent liberals (after ruling that money is speech). And the used that money to advertise for a Supreme Court seat after previously blocking that seat. The whole thing is so gross.

Every time I start working on a cyberpunk dystopian novel I have to throw it out several weeks later when its plot happens in real life.

I'm so disgusted with McCain, who keeps talking about what a horrible idea this is but votes for it anyway. He's such a spineless sh*t now, all talk and never backs it up.

https://www.usatoday.com/story/news/...

Enough of a Supreme Court tangent came up in the Trump Administration thread that it needs to be moved here (I am not moving Court/Gorsuch posts that do not directly pertain to the subject of "judicial activism"):

gore wrote:
Stele wrote:

Supreme Court impeachment takes House majority but 2/3 of Senate.

Even though the Senate flipping is likely I don't think it flips that much.

Also, there's the tiny fact that there's absolutely nothing improper about Gorsuch himself. Disagreeing with the Democratic​ party's philosophy of judicial activism isn't actually a crime.

Demyx wrote:

While I agree that Gorsuch's views are not a crime, are you really going to use the phrase "judicial activism"? The way the conservative justices interpret the law is every bit as "activist" as the way the liberal justices do. Scalia's ruling on same-sex marriage is a great example.

gore wrote:
Demyx wrote:

While I agree that Gorsuch's views are not a crime, are you really going to use the phrase "judicial activism"? The way the conservative justices interpret the law is every bit as "activist" as the way the liberal justices do. Scalia's ruling on same-sex marriage is a great example.

I believe that we should follow the laws as written to the best of our ability. We have a legislative process for changing all of them, by way of elected representatives of the people. Political appointees with lifetime positions "reinterpreting" the Constitution as a "living document" (and so essentially making new laws) is counter to the way our government was designed to operate.

Most Democrats seem to feel like this situation is an improvement to the system as envisioned, but I think reasonable people can disagree on this point.

Jayhawker wrote:

The problem is, originalists are full of sh*t. There is nothing in the constitution to address abortion, drugs, gay and gender rights, and most of what the Supreme Court deals with. The truth is, originalists are interpreting as much as judges that buy into the living document theory.

And I would prefer the Supreme Court rule based on what is better for society at a given time, even if I disagree. The manner in which we appoint judges means that the court is slow to evolve, which is good.

Republicans gaming the system to steal an appointment undermines that evolution, though. I don't think Gorsuch should be removed, but legislation to prevent what the Republicans did would be wise. It won't be any more fair if Democrats do the same thing later.

Freyja wrote:

The judiciary is specifically empowered to interpret the law. I have a hard time buying that a base set of laws written over 200 years ago is completely immune to being interpreted by modern individuals. Moreover, judicial review is a key component of checks and balances in the US government.

You can't have a judiciary with the power to overturn the executive or the legislature and at the same time demand it defers to the legislature at all times when making decisions.

And before we get into this, I'm not a Democrat.

Yonder wrote:

Every single time I have investigated claims of liberal judicial activism I've found well argued rationales based on existing case law, where some people that disagree with that rationale just can't imagine that anyone else's argument could possibly be rationale interpretation of the law, and hence search for a different term for it. If there are particular cases that anyone thinks are examples of "legislating from the bench" or "judicial activism" I would be happy to hear them.

Demyx wrote:
gore wrote:
Demyx wrote:

While I agree that Gorsuch's views are not a crime, are you really going to use the phrase "judicial activism"? The way the conservative justices interpret the law is every bit as "activist" as the way the liberal justices do. Scalia's ruling on same-sex marriage is a great example.

I believe that we should follow the laws as written to the best of our ability. We have a legislative process for changing all of them, by way of elected representatives of the people. Political appointees with lifetime positions "reinterpreting" the Constitution as a "living document" (and so essentially making new laws) is counter to the way our government was designed to operate.

Most Democrats seem to feel like this situation is an improvement to the system as envisioned, but I think reasonable people can disagree on this point.

For starters, conservative judges "reinterpret" the Constitution as much as liberal judges do. Look at the Hobby Lobby case where "freedom of religion" is interpreted as "corporations can have religion" and "those corporations can impose their religion on their employees and customers."

Secondly, originalism itself is making the assumption that a group of people who were on the balance fairly progressive and thoughtful by the standards of their day would want their 1780s beliefs to inform modern day law, unchanged. That kind of goes against what a bunch of revolutionaries stood for. Would a modern day Jefferson support slavery, for instance? Would the kind of people who wrote about "life, liberty and the pursuit of happiness" in the 18th century oppose gay marriage in the 21st?

The Founding Fathers themselves had differing opinions on how the Constitution should be interpreted.

Malor wrote:
The judiciary is specifically empowered to interpret the law. I have a hard time buying that a base set of laws written over 200 years ago is completely immune to being interpreted by modern individuals.

The Constitution and the laws mean what they meant when they were written. Redefining words to suit new goals is a travesty. We have multiple established procedures for making changes; arbitrarily deciding that now the words mean a whole bunch of stuff that they didn't mean previously is imposing a change on people that they didn't participate in, and in fact had no voice in at all.

This is wrong. Words don't change their meaning once they're committed to paper. If they don't cover something, then you need new laws, or new Amendments.

The surveillance state is using this exact procedure to justify all their bullsh*t, by the way. They just redefine the words in the laws to mean something else, which nullifies the laws entirely.

If the law means what you want it to mean, instead of what it actually says, then it's not a law, it's just a suggestion that you're free to ignore.

Freyja wrote:

Words change meaning constantly as language evolves. No language has ever remained completely static.

By your definitions Obergefell v. Hodges is a travesty, as is Price Waterhouse v. Hopkins and Roe v. Wade.

Knock it off.

e: Oh, and Lawrence v. Texas

Freyja wrote:

The right to privacy is not enumerated anywhere in the Constitution but the 14th amendment (and the 4th, and the 5th, and the 9th) has been interpreted numerous times to grant such a right and no legislature has ever passed a law in the US guaranteeing one.

If you're going to support orginialism so staunchly as to characterize anything but rigidly textual interpretations of the Constitution a travesty I look forward to seeing your acknowledgement that the judiciary has been horrifyingly activist in this regard.

Stele wrote:
gore wrote:

I've read a lot about this and I've made up my mind, you guys won't convince me and I won't convince you. I'm probably the only one here who feels this way, so maybe we should get back on topic.

Problem is you're talking about "judicial activism" as if the Supreme Court just gets together like the legislative branch, spits out some laws, votes 5-4 on them, and makes new law. That's not how it works.

They hear cases that have been through the lower courts, appealed multiple times, and need a final decision to determine a ruling. There's ample opportunity for those presenting the case to show their interpretation is the correct one and convince the court in their favor. You might as well be ranting about "activist lawyers" out there "making up laws".

Come on, man.

Yonder wrote:

It's worth pointing out that while Courts, especially the Supreme Court, are interested in the Constitution as the supreme arbiter, all other laws apply as well. Several of the "activist" allegations I've seen have boiled down to "where does the Constitution say that!?" when the Court didn't cite the Constitution, they cited actual law that made the activity illegal.

The rulings that you can't gerrymander to disenfranchise minorities, for example, comes from a combination of one of the amendments and the Voting Rights Act, it doesn't solely come from the Constitution directly.

Malor wrote:
By your definitions Obergefell v. Hodges is a travesty, as is Price Waterhouse v. Hopkins and Roe v. Wade.

I suspect that I would probably agree with that statement completely; I certainly do about Roe v. Wade.

Not because the outcome was bad, but because they re-invented the law to make it happen. Process matters.

A Man for All Seasons wrote:

More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

No one outcome is worth damaging the fabric that all the subsequent outcomes have to come from.

That living document bullsh*t is being used to perpetrate abuses much worse than the ones they stopped, and this process will continue to accelerate. Laws are supposed to mean things. Words are supposed to mean things.

If you can just say the law is whatever you happen to want today, you don't have law at all.

There's ample opportunity for those presenting the case to show their interpretation is the correct one and convince the court in their favor.

Laws mean what they meant when they were written. If the law needs to change, we have a legislative body explicitly to do that, one answerable to the governed.

The Supreme Court is supposed to be a non-political body, but instead it's the most hyper-polarized political body we have. This is not concidence. This is the damage to the fabric of society. The liberal side of things ripped apart the law to get to the Devil, and that law has been terribly weakened as both a direct and an indirect consequence.

cheeze_pavilion wrote:
Malor wrote:

Not because the outcome was bad, but because they re-invented the law to make it happen. Process matters.

You do realize the Bill of Rights didn't apply against the states until the courts said it did in the 20th century, and they did it by 'interpreting' the 14th Amendment which was from the 19th century?

PiP wrote:

Which part of the Constitution did the Founders envision protecting your internet privacy?

The thing about valuing the originalism interpretation as sacrosanct is it only values one kind of process, and one that's so stacked against minority groups as to be virtually impossible to break. The legislature is so gerrymandered that if we restricted the plaintiffs in civil rights cases to only address their grievances through the legislature, several members of this forum would still be second-class citizens (e: In some respects.)

But we do have another process available to us, we can petition the government for a redress of grievances, meaning, we can sue. This is using the process and its checks and balances when one or more branches of the government are hostile - this is a feature, but when we do we're accused of politicizing the Court, which has been political since its inception; the 11th amendment exists because of Chisholm v. Georgia, judicial review exists because of Marbury v. Madison, but nobody derides those decisions as "political". Nobody says the Hobby Lobby or Citizens United decisions were political, nobody says Dred Scott was political.

Accusations of politicizing the court seem to always fall at the feet of the left, usually after an oppressed group wins a civil rights case. I think it's curious that happens, and worth examining why.

tl;dr:
"You need to win within the system"
*wins within the system*
"No not like that"

"I say letter!"
"I say spirit!"

This forum will be known as the place where humanity concluded a debate that's gone on for thousands of years.

As for me, I'm more of a realist and say legal precedent... as in recent judgements which back an interpretation of existing laws. That case law should be supplemented with new laws which either clarify or replace outdated laws. That's the system we have, and the continuing arguments above help to determine a balance between letter and spirit. I think that all-or-nothing purists on either side of the argument are rubbing their magic genie lamps and fervently wishing for a universe that doesn't exist, but that doesn't mean their contributions are useless.

@Malor: yes, laws are supposed to mean something, but they have intent. If people are being injured by camels, I could make a law saying camels aren't allowed within 10 feet of people. I could make a law restricting the sale and purchase of camels. I could make a law concerning how and when camels are allowed to interact with the public, or the safety gear that people or camels should wear when they are interacting, or any number of things. The key here, though, is that all those laws have the same intent: preventing people getting bitten. That's supremely important when deciding whether previously unseen actions are within the bounds of the law.

If people are legally entitled to the pursuit of happiness, and a thing I'm doing makes me happy, who gets to tell me that the thing I'm doing isn't ok? There must be a body that applies the 4543 words of the Constitution to the myriad situations that it doesn't explicitly outline.

Malor wrote:

The Supreme Court is supposed to be a non-political body, but instead it's the most hyper-polarized political body we have. This is not concidence. This is the damage to the fabric of society. The liberal side of things ripped apart the law to get to the Devil, and that law has been terribly weakened as both a direct and an indirect consequence.

This is confusing different types of politicization. The Supreme Court is the most separated body from the people, and from checks after Justices are confirmed, in our government. In that way, yes, they are non-political. No elections, no required pandering to stake holders, just what they think is right.

However their method of selection and lifetime appointments aren't necessary because their decisions don't have political ramifications, far from it! If the founding fathers hadn't foreseen the Supreme Court being a vital political body they wouldn't have gone through all of the effort to protect it from politics! That entire structure was the founding fathers saying "this sh*t is going to be a big deal".

I see accusations of politicizing the court as an extension of a pattern in the US of blaming minorities when liberals or Democrats lose power in government. We saw it most recently when Trump won the election and immediately there was a flurry of op-eds deriding 'bathroom politics' and 'boutique issues' and various other code words for blaming trans people for the right's tapping into transphobia as part of it's election strategy.

I honestly don't know what do to about it, but it's utterly infuriating being put into this kind of double bind. Either we break ourselves against a hostile legislature and make no progress or we use the court system in which we might have a glimmer of hope for success, only to have liberals turn around and blame us when the right behaves badly and liberals lose at the polls.

Freyja wrote:

I see accusations of politicizing the court as an extension of a pattern in the US of blaming minorities when liberals or Democrats lose power in government. We saw it most recently when Trump won the election and immediately there was a flurry of op-eds deriding 'bathroom politics' and 'boutique issues' and various other code words for blaming trans people for the right's tapping into transphobia as part of it's election strategy.

You know, that makes me think: it's curious that there's never any similar call for soul-searching when it comes to whether the cries of "Police State!" might be turning off those same voters.

cheeze_pavilion wrote:
Freyja wrote:

I see accusations of politicizing the court as an extension of a pattern in the US of blaming minorities when liberals or Democrats lose power in government. We saw it most recently when Trump won the election and immediately there was a flurry of op-eds deriding 'bathroom politics' and 'boutique issues' and various other code words for blaming trans people for the right's tapping into transphobia as part of it's election strategy.

You know, that makes me think: it's curious that there's never any similar call for soul-searching when it comes to whether the cries of "Police State!" might be turning off those same voters.

I agree.

That can be a touchy subject. I found that out first-hand... People love their conspiracies.