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GoodOwl Offline
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Post: #1
Rice Quad Supreme Court Thread
[Image: us-supreme-court.0.jpg]

Saw this pending decision and found it quite fascinating. It's been to the SCOTUS now 3 times, several interesting issues and angles to this case. Seems relevant beyond it as there are many times when one state's citizens seek satisfaction from abuse in another state's courts in similar manner. Kinda laughed at the reduction of the award to a pithy $50K from the $380Million originally awarded. Not surprising as government crooks seemingly seek to protect their own, especially in the courts. Gotta play golf together on Monday, apparently and perhaps worried about those handicaps.

The initial comment from "LCS" was priceless, and appears exemplative of CA's problems with overgovernmentalization.

Anyhoo, take a peek before it mysteriously disappears, but be sure to read it with popcorn...

linky: US Supreme Court Considers Scope of States’ Sovereign Immunity
02-06-2019 09:03 PM
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GoodOwl Offline
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RE: Rice Quad Supreme Court Thread
While on the subject, I know some old KTRUers who would have had an interest in this case's outcome as per the station's "unofficial" moniker...fun, fun fun 'til daddy takes the T-bird away...

linky: Oral Arguments Could Get Interesting When FUCT Free Speech Case Hits SCOTUS
02-06-2019 09:39 PM
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tanqtonic Offline
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Post: #3
RE: Rice Quad Supreme Court Thread
(02-06-2019 09:03 PM)GoodOwl Wrote:  [Image: us-supreme-court.0.jpg]

Saw this pending decision and found it quite fascinating. It's been to the SCOTUS now 3 times, several interesting issues and angles to this case. Seems relevant beyond it as there are many times when one state's citizens seek satisfaction from abuse in another state's courts in similar manner. Kinda laughed at the reduction of the award to a pithy $50K from the $380Million originally awarded. Not surprising as government crooks seemingly seek to protect their own, especially in the courts. Gotta play golf together on Monday, apparently and perhaps worried about those handicaps.

The initial comment from "LCS" was priceless, and appears exemplative of CA's problems with overgovernmentalization.

Anyhoo, take a peek before it mysteriously disappears, but be sure to read it with popcorn...

linky: US Supreme Court Considers Scope of States’ Sovereign Immunity

In a very odd circumstance I agree with Sotomayor --- and note she is taking a very textualist stance on the issue. The Framers were very cognizant of sovereign immunity, and the immediately amended the constitution to allow for the issue that stood between a state sovereign and the federal sovereign.

In short, the 11th Amendment is very clear --- there are multiple sovereigns and the sovereign can only be haled into the US sovereign court with its own permission. The people of the 11th amendment were very cognizant of the implication that each state is a sovereign -- the ban on interstate compacts that directly affect the limited powers of the central government is clearly an artifact of that. And, since they knew the issue of co-equal sovereigns, and 'fixed' a very closely related issue re: the relationship with the US sovereign with the 11th Amendment, they had every ability of not adding state/state sovereignty into the mix for the 11th Amendment. And they chose not to. I think that states are capable of being sued in another state's court.

The opponents cite 200 years of 'state supreme court' opinion. Each state *may* choose to pick comity with other sovereigns as their stance --- nothing in the Constitution explicitly prohibits this. But the opinions stated by the opposition to Sotomayor are all seemingly 'state' court opinions -- and therefore have no binding precedent on Federal courts as a matter of Federal law.
02-07-2019 06:58 AM
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tanqtonic Offline
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Post: #4
RE: Rice Quad Supreme Court Thread
(02-06-2019 09:39 PM)GoodOwl Wrote:  While on the subject, I know some old KTRUers who would have had an interest in this case's outcome as per the station's "unofficial" moniker...fun, fun fun 'til daddy takes the T-bird away...

linky: Oral Arguments Could Get Interesting When FUCT Free Speech Case Hits SCOTUS

This one is easy. The Lanham Act (the basis for Federal trademarks) bars protection for marks that re 'scandalous or offensive'. I think even the non-lawyers here will see the abject subjectivity in the standard.

In any manner, there is precedent for the Section being struck from the outcome of the 'Slants' case two years ago. An all-Vietnamese band called 'The Slants' filed for Federal trademark protection, and was rejected as being 'disparaging' under the Lanham Act. This related bar on banning protection for 'disparaging' material in the Lanham Act was struck with this case, since the standard could on its face only be applied in a subjective manner.

There is no way the 'scandalous and offensive' standard survives given the Slants case.

https://www.supremecourt.gov/opinions/16...3_1o13.pdf
02-07-2019 07:10 AM
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georgewebb Offline
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RE: Rice Quad Supreme Court Thread
(02-07-2019 06:58 AM)tanqtonic Wrote:  
(02-06-2019 09:03 PM)GoodOwl Wrote:  [Image: us-supreme-court.0.jpg]

Saw this pending decision and found it quite fascinating. It's been to the SCOTUS now 3 times, several interesting issues and angles to this case. Seems relevant beyond it as there are many times when one state's citizens seek satisfaction from abuse in another state's courts in similar manner. Kinda laughed at the reduction of the award to a pithy $50K from the $380Million originally awarded. Not surprising as government crooks seemingly seek to protect their own, especially in the courts. Gotta play golf together on Monday, apparently and perhaps worried about those handicaps.

The initial comment from "LCS" was priceless, and appears exemplative of CA's problems with overgovernmentalization.

Anyhoo, take a peek before it mysteriously disappears, but be sure to read it with popcorn...

linky: US Supreme Court Considers Scope of States’ Sovereign Immunity

In a very odd circumstance I agree with Sotomayor --- and note she is taking a very textualist stance on the issue.

I noticed that too, and the the irony of it. I wonder if the good Justice did.
02-07-2019 11:11 AM
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GoodOwl Offline
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Post: #6
RE: Rice Quad Supreme Court Thread
linky: U.S. Supreme Court hands Trump a victory on immigration detention

Quote:WASHINGTON (Reuters) - The Supreme Court on Tuesday endorsed the U.S. government's authority to detain immigrants awaiting deportation anytime - potentially even years - after they have completed prison terms for criminal convictions, handing President Donald Trump a victory as he pursues hardline immigration policies.

The court ruled 5-4 along ideological lines, with its conservative justices in the majority and its liberal justices dissenting, that federal authorities could pick up such immigrants and place them into indefinite detention anytime, not just immediately after they finish their prison sentences....
03-19-2019 12:31 PM
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Post: #7
RE: Rice Quad Supreme Court Thread
(03-19-2019 12:31 PM)GoodOwl Wrote:  linky: U.S. Supreme Court hands Trump a victory on immigration detention

Quote:WASHINGTON (Reuters) - The Supreme Court on Tuesday endorsed the U.S. government's authority to detain immigrants awaiting deportation anytime - potentially even years - after they have completed prison terms for criminal convictions, handing President Donald Trump a victory as he pursues hardline immigration policies.

The court ruled 5-4 along ideological lines, with its conservative justices in the majority and its liberal justices dissenting, that federal authorities could pick up such immigrants and place them into indefinite detention anytime, not just immediately after they finish their prison sentences....

I'm confused. When it says "immediately after they finish their prison sentences", is it referring to conservative justices, liberal justices, federal authorities, or immigrants?
03-21-2019 05:42 PM
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tanqtonic Offline
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Post: #8
RE: Rice Quad Supreme Court Thread
I was listening the NC gerrymandering case, and this really popped out at me during the arguments with the Appellant's lawyer (representing the state), and it tied in with the other comment about 'proportional representation' that was linked for us by the mathematician.

JUSTICE GINSBURG: -- Mr. Clement,
does one person have one vote that counts
equally, which I take it to be the -- the
message of those cases, now well accepted, does
one person have one vote that counts equally
with others if the impact of her vote is
reduced based on her party affiliation?

The answer was a subtle comment that floored me. The answer was very subtle in the constitutional layer.

Quote:The answer to that question, Justice Ginsburg, is yes. You still have an equal right to vote as an individual. [....]

What they're complaining of is that they're grouped in a district with either too many people who agree with them or too few people who agree with them, and, therefore, their vote is sort of diluted in some way. [....]

[] I would say ... lots and lots of voters live in a district where, either because of geography or because of state action, they're not going to have their preferred candidate elected.

[] I'd go further and say most Americans don't get their preferred candidate elected because they have to choose from the candidates that are before them, and maybe based on the district they live in, it tends to give them a relatively liberal Democrat or a relatively conservative Republican when really what they'd prefer is somebody down the middle.

And none of those things, I think, are things that you are constitutionally entitled to.

He also noted that the NC legislature specifically and explicitly ordained that the districts should be drawn to get 10 Republicans and 3 Democrats. The issue is, at its core, a political one. The solution is also, at its core, a political one.

It is kind of weird to hear the liberal judges try and state a case that an individual has a Constitutional *right* to have a set number or a set proportion of Congressional districts drawn to reflect their political views. Not just weird, but rather astounding, to be blunt.

Edited to add: most know my stance on progressive judicial interpretation to simply ignore what they do not like, then dig like hell to find a 'new right' or 'new meaning'.

Here is an example:

Justice Breyer asks a meandering question and possible 'tests', and in the course states 'if a state uses a commission they get a pass on review [on partisan gerrymandering]'.

The attorney replies 'that seems to me itself to be remarkably revealing because you're basically saying that it would be a good thing for the state if they chose to use a mechanism other than the one that the framers picked [that is, the legislature itself].'

Which then starts off a shitshow with Kagan and Ginsburg.

Quickly followed by:
Quote: I am not here to tell you that if the Constitution included a one standard deviation from proportional representation clause or a one-third/two-thirds clause, that judges somehow would be incapable of administering that clause.

So I think the fundamental problem is there is no one standard deviation from proportional representation clause in the Constitution.
(This post was last modified: 04-05-2019 07:09 PM by tanqtonic.)
04-05-2019 06:24 PM
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RE: Rice Quad Supreme Court Thread
(04-05-2019 06:24 PM)tanqtonic Wrote:  I was listening the NC gerrymandering case, and this really popped out at me during the arguments with the Appellant's lawyer (representing the state), and it tied in with the other comment about 'proportional representation' that was linked for us by the mathematician.

JUSTICE GINSBURG: -- Mr. Clement,
does one person have one vote that counts
equally, which I take it to be the -- the
message of those cases, now well accepted, does
one person have one vote that counts equally
with others if the impact of her vote is
reduced based on her party affiliation?

The answer was a subtle comment that floored me. The answer was very subtle in the constitutional layer.

Quote:The answer to that question, Justice Ginsburg, is yes. You still have an equal right to vote as an individual. [....]

What they're complaining of is that they're grouped in a district with either too many people who agree with them or too few people who agree with them, and, therefore, their vote is sort of diluted in some way. [....]

[] I would say ... lots and lots of voters live in a district where, either because of geography or because of state action, they're not going to have their preferred candidate elected.

[] I'd go further and say most Americans don't get their preferred candidate elected because they have to choose from the candidates that are before them, and maybe based on the district they live in, it tends to give them a relatively liberal Democrat or a relatively conservative Republican when really what they'd prefer is somebody down the middle.

And none of those things, I think, are things that you are constitutionally entitled to.

He also noted that the NC legislature specifically and explicitly ordained that the districts should be drawn to get 10 Republicans and 3 Democrats. The issue is, at its core, a political one. The solution is also, at its core, a political one.

It is kind of weird to hear the liberal judges try and state a case that an individual has a Constitutional *right* to have a set number or a set proportion of Congressional districts drawn to reflect their political views. Not just weird, but rather astounding, to be blunt.

It wrong to take a judge’s question during oral argument as necessarily evidencing his or her view. But, if the North Carolina scene had been drawn by Democrats to favor Democrats, Justice Ginsburg wouldn’t be concerned one iota about it.
04-05-2019 06:35 PM
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tanqtonic Offline
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RE: Rice Quad Supreme Court Thread
(04-05-2019 06:35 PM)georgewebb Wrote:  
(04-05-2019 06:24 PM)tanqtonic Wrote:  I was listening the NC gerrymandering case, and this really popped out at me during the arguments with the Appellant's lawyer (representing the state), and it tied in with the other comment about 'proportional representation' that was linked for us by the mathematician.

JUSTICE GINSBURG: -- Mr. Clement,
does one person have one vote that counts
equally, which I take it to be the -- the
message of those cases, now well accepted, does
one person have one vote that counts equally
with others if the impact of her vote is
reduced based on her party affiliation?

The answer was a subtle comment that floored me. The answer was very subtle in the constitutional layer.

Quote:The answer to that question, Justice Ginsburg, is yes. You still have an equal right to vote as an individual. [....]

What they're complaining of is that they're grouped in a district with either too many people who agree with them or too few people who agree with them, and, therefore, their vote is sort of diluted in some way. [....]

[] I would say ... lots and lots of voters live in a district where, either because of geography or because of state action, they're not going to have their preferred candidate elected.

[] I'd go further and say most Americans don't get their preferred candidate elected because they have to choose from the candidates that are before them, and maybe based on the district they live in, it tends to give them a relatively liberal Democrat or a relatively conservative Republican when really what they'd prefer is somebody down the middle.

And none of those things, I think, are things that you are constitutionally entitled to.

He also noted that the NC legislature specifically and explicitly ordained that the districts should be drawn to get 10 Republicans and 3 Democrats. The issue is, at its core, a political one. The solution is also, at its core, a political one.

It is kind of weird to hear the liberal judges try and state a case that an individual has a Constitutional *right* to have a set number or a set proportion of Congressional districts drawn to reflect their political views. Not just weird, but rather astounding, to be blunt.

It wrong to take a judge’s question during oral argument as necessarily evidencing his or her view. But, if the North Carolina scene had been drawn by Democrats to favor Democrats, Justice Ginsburg wouldn’t be concerned one iota about it.

In the audio it is readily apparent the lines that are drawn.

Roast NC: Ginsburg, Kagan, Sotomayor, Breyer. Every stance taken in the NC presentation was attacked vociferously by the 4.

During the NC presentation: Gorsuch simply asked: isnt this a self-healing issue?
Roberts was mainly quiet. Alito simply stated while the liberal quad's arguments arent 'explicitly' proportional, their 'unfair' outcome really has that underpinning. Kavanaugh asked a softball that crushed the Equal Protection Clause argument. Thomas, as always, didnt answer any questions.

During the other presentation:

Roberts and Alito got the attorney into a discussion where the other attorney essentially says: partisanship can be a *material* factor in line drawing, but a state crosses the line when it is a *predominant* factor. (Wow, what a distinction.... lolz)

Double lolz when the anti-NC attorney said 'That [i.e. amending the Constitution to do a citizen's commission] is not an effective remedy'

Roberts, Gorsuch, Alito and Kavanaugh, through repeated pointed questions on what type of 'test' one might employ, could only get the anti-NC attorney to say that *this* one is not fair.

Gorsuch, Roberts, Kavanaugh, and Alito are definitely not for the Supreme Court wading into partisan gerrymandering.

This one will be a 5-4 vote, for North Carolina. It will say that the issue of partisan gerrymandering is non-justiciable, and is solely a matter for a state.
04-05-2019 07:37 PM
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tanqtonic Offline
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RE: Rice Quad Supreme Court Thread
On this rainy, dark day I listened to the companion to the NC gerrymander case, the Maryland gerrymander case.

The facts of both are very clear, in each case the majority party stated on the record their wish to confine the opposition to the bare minimum of districts possible.

The one thing that struck me with the Maryland plaintiff's case (Republicans getting horned into one winnable district) is that they parroted the *same* arguments as noted by the NC plaintiffs (Democrats). Yet, while each screeched that the 'result was *unfair* and *clearly* unconstitutional', neither could be pinned in the slightest as to *what* deviation would be acceptable, let alone *what* would the deviation be compared *to*.

Honestly, I think a state has the power to draw maps and a proportional representation is an *allowable* state interest to follow. But, based on the paucity of guidelines proffered by the Plaintiffs, I fail to see that an attempt to meet proportional representation is *required*.
04-06-2019 07:19 PM
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RE: Rice Quad Supreme Court Thread
Prediction:
- In the North Carolina case, the Supreme Court will uphold the gerrymander by a vote of 5-4, while in the Maryland case, they will uphold the gerrymander by a vote of 6-3 or better.
- The former vote will be reported as "sharply divided" and "along narrow, partisan, ideological lines", while the latter vote will be reported as "reflecting judicial consensus."
- The flip-floppers will not be the "conservative" justices.
04-06-2019 08:52 PM
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tanqtonic Offline
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RE: Rice Quad Supreme Court Thread
(04-06-2019 08:52 PM)georgewebb Wrote:  Prediction:
- In the North Carolina case, the Supreme Court will uphold the gerrymander by a vote of 5-4, while in the Maryland case, they will uphold the gerrymander by a vote of 6-3 or better.
- The former vote will be reported as "sharply divided" and "along narrow, partisan, ideological lines", while the latter vote will be reported as "reflecting judicial consensus."
- The flip-floppers will not be the "conservative" justices.

Breyer, Sotomayor, Ginsburg, and Kagan will vote in *both* cases that a political gerrymander should be protected against under the Constitution.

Kagan's concurrence in the Wisconsin gerrymander last year (tossed it because of lack of standing) spells this out completely -- and these 4 during arguments always goaded the 'get rid of gerrymander' attorneys for a 'number rule' that would be a prima facie test for that.

Both will be 5-4 to uphold. None of Breyer, Kagan, Ginsburg, or Sotomayor will vote against one, then for one. I will be astounded if that happens. Breyer most of all -- he *really* wants a 'numerical' test in place.

I can tell right off the bat that Alito has a problem finding a basis in the Constitution for protection or for justiciability. Kavanaugh doesnt see a basis in the 1st Amendment argument, nor in the Equal Protection. Gorsuch is in the non-justiciable camp --- he is always pushing that the issue is self-correcting in his questions.

Roberts' questions seemed very critical of, assuming there is a protection, what in the world would *ever* be a viable test for it. And Thomas is already on record in previous votes that there is no basis for protection.
(This post was last modified: 04-06-2019 10:48 PM by tanqtonic.)
04-06-2019 10:47 PM
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RE: Rice Quad Supreme Court Thread
(04-06-2019 10:47 PM)tanqtonic Wrote:  
(04-06-2019 08:52 PM)georgewebb Wrote:  Prediction:
- In the North Carolina case, the Supreme Court will uphold the gerrymander by a vote of 5-4, while in the Maryland case, they will uphold the gerrymander by a vote of 6-3 or better.
- The former vote will be reported as "sharply divided" and "along narrow, partisan, ideological lines", while the latter vote will be reported as "reflecting judicial consensus."
- The flip-floppers will not be the "conservative" justices.

Breyer, Sotomayor, Ginsburg, and Kagan will vote in *both* cases that a political gerrymander should be protected against under the Constitution.

Kagan's concurrence in the Wisconsin gerrymander last year (tossed it because of lack of standing) spells this out completely -- and these 4 during arguments always goaded the 'get rid of gerrymander' attorneys for a 'number rule' that would be a prima facie test for that.

Both will be 5-4 to uphold. None of Breyer, Kagan, Ginsburg, or Sotomayor will vote against one, then for one. I will be astounded if that happens. Breyer most of all -- he *really* wants a 'numerical' test in place.

I think you’re right about Breyer, but I don’t think the other three are quite as principled. They were blatantly partisan, ideological picks when they were nominated, and since then they’ve proven their readiness — and sometimes even their zeal — to trade sound legal principle for ideologically preferred outcomes.
04-07-2019 08:42 AM
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Post: #15
RE: Rice Quad Supreme Court Thread
If you've never read an actual Supreme Court decision, I encourage you to read what Justice Thomas actually wrote in this case:

Decided May 28, 2019
Box v. Planned Parenthood
link to Supreme Court decision: https://www.supremecourt.gov/opinions/18...3_3d9g.pdf
JUSTICE THOMAS, concurring (20 pp).

Justice Clarence Thomas slams Planned Parenthood for using abortion to 'achieve eugenic goals'
May 28, 2019 03:33 PM

Quote:In a gloriously brutal concurring opinion published Tuesday, Justice Clarence Thomas took on Planned Parenthood, the meaning of abortion, and birth control. While writing a concurring opinion in Box v. Planned Parenthood, Thomas likened abortion to eugenics and scolded Justice Ruth Bader Ginsburg for nonsensical opinions in the same case.

As if he had been waiting all of his 27 years on the court for the right case to come to his desk so he could unleash hell on Planned Parenthood, Thomas agreed with Indiana’s law and said, “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” In a lengthy diatribe connecting Planned Parenthood’s roots to cherry-picking abortionists today, he wrote:

“The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control ‘opens the way to the eugenist.’”

Thomas went on like this, giving a multi-page history lesson on eugenics and birth control, occasionally excoriating Ginsburg’s opinion on this case by way of footnote — as Supreme Court justices do. Even though the court won’t hear further argument on this particular case, Thomas said the time will come. ”Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.”
05-29-2019 09:20 AM
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tanqtonic Offline
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Post: #16
RE: Rice Quad Supreme Court Thread
(05-29-2019 09:20 AM)GoodOwl Wrote:  If you've never read an actual Supreme Court decision, I encourage you to read what Justice Thomas actually wrote in this case:

Decided May 28, 2019
Box v. Planned Parenthood
link to Supreme Court decision: https://www.supremecourt.gov/opinions/18...3_3d9g.pdf
JUSTICE THOMAS, concurring (20 pp).

Justice Clarence Thomas slams Planned Parenthood for using abortion to 'achieve eugenic goals'
May 28, 2019 03:33 PM

Quote:In a gloriously brutal concurring opinion published Tuesday, Justice Clarence Thomas took on Planned Parenthood, the meaning of abortion, and birth control. While writing a concurring opinion in Box v. Planned Parenthood, Thomas likened abortion to eugenics and scolded Justice Ruth Bader Ginsburg for nonsensical opinions in the same case.

As if he had been waiting all of his 27 years on the court for the right case to come to his desk so he could unleash hell on Planned Parenthood, Thomas agreed with Indiana’s law and said, “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” In a lengthy diatribe connecting Planned Parenthood’s roots to cherry-picking abortionists today, he wrote:

“The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control ‘opens the way to the eugenist.’”

Thomas went on like this, giving a multi-page history lesson on eugenics and birth control, occasionally excoriating Ginsburg’s opinion on this case by way of footnote — as Supreme Court justices do. Even though the court won’t hear further argument on this particular case, Thomas said the time will come. ”Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.”

But it really wasnt a decison on the merits. It was a decision on whether to accept the case for review. If he wanted to 'make a mark', I would think it far more effective to enter his words in any of a decision, a concurrence to a decision, or a dissent
05-29-2019 10:08 AM
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Post: #17
RE: Rice Quad Supreme Court Thread
Speaking of the Supreme Court, here's the topic everyone is REALLY interested in: did you know that the Supreme Court has taken up a bunch of intellectual property cases this term? You might have missed the presentation that I gave earlier this month to the Houston Intellectual Property Law Association (after all, it was sold-out!), but you're not out of luck because you can read or download the presentation here:

The Supreme Court's Term in Intellectual Property
Texas CLE course #174048918
May 7, 2019
https://www.slideshare.net/slideshow/emb...kvHzrKH7wT

I promise that it is every bit as interesting as you would expect!
05-29-2019 11:02 AM
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Post: #18
RE: Rice Quad Supreme Court Thread
I have been really bothered by the fact that the judicial nomination process and judiciary seem to be increasingly partisan (and viewed by many Americans as increasingly partisan). I practice almost exclusively in federal court and as a general principle, I think judges that get approved with 60+ Senate votes are better qualified and less agenda-driven than judges who scrape by with <55 votes.

I've been tossing around an idea in my own mind the last few months and I thought this might be an interesting place to get some feedback. Please understand that my proposal is meant to benefit the judiciary in general and is inherently non-partisan and non-ideological, as it applies regardless of which party is in control of the executive branch (nominating judges) or the Senate (voting on judges).

My suggestion is a law that would need to be passed by Congress and signed by the President. I realize there are some constitutional arguments to be made against my suggestion. I'm not asking anyone to make those legal arguments. I'm more interested in political/practical feedback since most of the folks hanging out in the Quad are conservatives.

Here are the bullet-points:
  1. Get rid of the filibuster for all judicial nominees
  2. Define "advice and consent" in Article II, Section 2 of the Constitution as requiring 60 votes in the Senate to approve judicial nominees.
  3. Set forth a specific timeline that the Senate Judiciary Committee and the full Senate must follow for the consideration of all judicial nominees. Base this timeline on past confirmations and it must include both a minimum and maximum time before committee and full Senate votes occur. This prevents the Senate from running out the clock on nominees toward the end of presidential terms (which both parties have done). It also prevents the Senate from jamming through a bunch of nominees either right before an election or during the lame duck session. I'd suggest a different timeline for district court, appellate court, and Supreme Court nominees, as they tend to face different degrees of scrutiny during the confirmation process.
  4. If there is not enough time for the Senate to consider nominees based on the timelines determined above prior to a federal election, the Senate cannot consider any federal judicial nominations until after the new Congress is sworn in.
  5. If the Senate does not approve a judicial nominee for the Supreme Court and the time remaining before the next federal election is insufficient for the Senate to consider another nominee, the current President can make a recess-appointment-like elevation of any current federal appeals court judge to the Supreme Court. However, that judge must have received at least 60 votes when confirmed to the appellate court. The length of the term should probably be 18 months or 30 months. This is meant to discourage the Senate from voting down a nominee just so they can subsequently run out the clock, but also encourage the President to appoint nominees that can attain 60 votes.

My obvious goal is to get Democrats and Republicans to nominate more mainstream judges. Leave the fringe legal minds as law school professors or think-tank legal scholars. It also helps reduce the influence of both liberal and conservative advocacy groups in the nomination process.

Other ideas I considered, but did not include in my initial outline:
  • 27-year terms for federal judges. I like the idea for a number of reasons, but it would require a constitutional amendment rather than just a law. Even though I am relatively young, it bothers me that there is increasing pressure to nominate younger attorneys to the federal judiciary, as it feels like age discrimination. It also bothers me that both liberal and conservative judges wait to retire until the President will appoint a judge who has a similar ideological bent.
  • Get rid of the blue slip process, but all all home-state Senators have a vote for federal district court nominees on the judiciary committee.

Thoughts?
06-13-2019 12:36 PM
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OptimisticOwl Offline
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Post: #19
RE: Rice Quad Supreme Court Thread
(06-13-2019 12:36 PM)mrbig Wrote:  I have been really bothered by the fact that the judicial nomination process and judiciary seem to be increasingly partisan (and viewed by many Americans as increasingly partisan). I practice almost exclusively in federal court and as a general principle, I think judges that get approved with 60+ Senate votes are better qualified and less agenda-driven than judges who scrape by with <55 votes.

I've been tossing around an idea in my own mind the last few months and I thought this might be an interesting place to get some feedback. Please understand that my proposal is meant to benefit the judiciary in general and is inherently non-partisan and non-ideological, as it applies regardless of which party is in control of the executive branch (nominating judges) or the Senate (voting on judges).

My suggestion is a law that would need to be passed by Congress and signed by the President. I realize there are some constitutional arguments to be made against my suggestion. I'm not asking anyone to make those legal arguments. I'm more interested in political/practical feedback since most of the folks hanging out in the Quad are conservatives.

Here are the bullet-points:
  1. Get rid of the filibuster for all judicial nominees
  2. Define "advice and consent" in Article II, Section 2 of the Constitution as requiring 60 votes in the Senate to approve judicial nominees.
  3. Set forth a specific timeline that the Senate Judiciary Committee and the full Senate must follow for the consideration of all judicial nominees. Base this timeline on past confirmations and it must include both a minimum and maximum time before committee and full Senate votes occur. This prevents the Senate from running out the clock on nominees toward the end of presidential terms (which both parties have done). It also prevents the Senate from jamming through a bunch of nominees either right before an election or during the lame duck session. I'd suggest a different timeline for district court, appellate court, and Supreme Court nominees, as they tend to face different degrees of scrutiny during the confirmation process.
  4. If there is not enough time for the Senate to consider nominees based on the timelines determined above prior to a federal election, the Senate cannot consider any federal judicial nominations until after the new Congress is sworn in.
  5. If the Senate does not approve a judicial nominee for the Supreme Court and the time remaining before the next federal election is insufficient for the Senate to consider another nominee, the current President can make a recess-appointment-like elevation of any current federal appeals court judge to the Supreme Court. However, that judge must have received at least 60 votes when confirmed to the appellate court. The length of the term should probably be 18 months or 30 months. This is meant to discourage the Senate from voting down a nominee just so they can subsequently run out the clock, but also encourage the President to appoint nominees that can attain 60 votes.

My obvious goal is to get Democrats and Republicans to nominate more mainstream judges. Leave the fringe legal minds as law school professors or think-tank legal scholars. It also helps reduce the influence of both liberal and conservative advocacy groups in the nomination process.

Other ideas I considered, but did not include in my initial outline:
  • 27-year terms for federal judges. I like the idea for a number of reasons, but it would require a constitutional amendment rather than just a law. Even though I am relatively young, it bothers me that there is increasing pressure to nominate younger attorneys to the federal judiciary, as it feels like age discrimination. It also bothers me that both liberal and conservative judges wait to retire until the President will appoint a judge who has a similar ideological bent.
  • Get rid of the blue slip process, but all all home-state Senators have a vote for federal district court nominees on the judiciary committee.

Thoughts?

Curious who you think are “fringe” and why. I think some of the sitting justices are very fringe.

Why 60? Why not 55 or 75. Or 51?
(This post was last modified: 06-13-2019 01:42 PM by OptimisticOwl.)
06-13-2019 01:41 PM
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mrbig Offline
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Post: #20
RE: Rice Quad Supreme Court Thread
(06-13-2019 01:41 PM)OptimisticOwl Wrote:  Curious who you think are “fringe” and why.

First, I didn't say any of the judges or justices were fringe (though I guess I implied it). Second, as a practicing attorney, I have zero comfort level in naming judges or justices. Third, it literally doesn't matter at all for purposes of my proposal.

All that said, I can give an easy example of something I view as "fringe". There is an [unnamed] Judge in my district court who was nominated by a Republican president but who has the reputation of being quite liberal on a lot of issues. On a specific type of case that I handled for over 1 decade (appeals from a specific federal agency's final administrative decisions) that were subjected to the substantial evidence standard on findings of fact, this district court judge remanded >95% of all decisions to the agency. I don't think any of the other judges in this district were above 10%. I'm not saying that this person shouldn't be a judge, but his views on this specific issue are "fringe" and if he was this fringe on too many issues, I think it would be a serious problem. I think there are judges on both sides that are far outside the mainstream. I think they are easier to identify at the appellate court level.

(06-13-2019 01:41 PM)OptimisticOwl Wrote:  Why 60? Why not 55 or 75. Or 51?

75 - I think is too many to find consistent consensus and it would constrain the President's nominations a bit too much for my comfort. My goal isn't to make every judge a centrist, it is to reduce the number of fringe judges, reduce the impact of special interest groups, and increase the public's confidence in the judiciary as a strong, independent, and fair-minded branch of government that can remain largely separate from political influences.

51 - no better than 50, as far as I'm concerned.

55 - better than the current system, but it isn't unusual for one party to have 55 Senators. It is pretty unusual for one party to have 60 Senators. My proposal is meant to coerce nominations that are acceptable to at least a handful of Senators from the opposing party and I don't think 55 would accomplish my goal.

60 - In addition to threading the needle between my concerns with 55 and 75, it also makes sense since that is the number of Senators needed to overcome a filibuster, so it makes some logical sense from a historical perspective (even acknowledging that there are many people who believe that the filibuster doesn't make any sense from any perspective).
(This post was last modified: 06-13-2019 03:14 PM by mrbig.)
06-13-2019 03:11 PM
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