SCOTUS Poised To Give Trump Even More Unbridled Power

Originally Posted by James Brown

I look at all the politically hot cases - none qualify as shilling for Trump.  In other words, none of the cases I have read seem to stray from proper conservative jurisprudence.  I don't blame Kagan, Ketanji-Brown and Sotomayor for dissenting either.  They are not shilling for the Democrats.  They are applying proper liberal jurisprudence to the issues before them.  I do not understand why smart guys like you and Rod insist on seeing these decisions as obviously "wrong" or obviously "biased" for political reasons.  You might disagree with the outcome, but the outcomes are not "wrong" or examples of the Court shilling for anyone.  The outcomes are the natural results of conservative justices applying conservative legal principals to difficult legal issues.

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

Originally Posted by Russ Carroll

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

hi Russ, I hope you and all the Astro marters are having a great Christmas/holiday season.   Your position is popular, but very naïve. I probably need to write a detailed article about this, and I’m working from my phone since I’m down in the city visiting Mom.   Will be at a desk later today .  

Every Supreme Court case is contested by top shelf litigants. There are always thorny issues of constitutional interpretation.   I gotta be brief, and I willl get back to this, but consider Roe v. Wade.   For decades the Constitution was deemed to support a right to privacy that covered reproductive rights. Before that, and now for the last couple years years, the right to privacy is deemed not to exist in the constitution. Liberals think the court was right in the 70s and wrong now. Conservatives think that the court was wrong in the 70s and has returned to a correct interpretation now. Both are wrong. This is not a question of simplistic right and wrong, it is a thorny question highly dependent on  the judicial philosophy that is brought to bear when interpreting these legal questions. I will elaborate later.

Originally Posted by Russ Carroll

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

Russ, I agree with your commentary and so do various legal scholars, some of whom characterize the conservatives on SCOTUS as in engaging in "Cafeteria Originalism" in that they demonstrate a pattern of selectively applying their interpretations of the constitution when they choose to do so.

"In essence, the debate hinges on whether the Court's conservative majority consistently applies originalism or selectively employs it to achieve politically conservative results, leading to accusations of inconsistency from critics and defense of principled application from supporters."  

"Inconsistent Application: The court has struck down laws based on originalist grounds (abortion, gun rights) but critics point to cases where originalist reasoning seems absent or downplayed, such as when limiting presidential immunity or agency power, suggesting a political bias."

AI/.   https://www.brennancenter.org/our-work/analysis-opinion/supreme-courts-originalism-doesnt-have-much-do-history
        https://history.stanford.edu/news/why-supreme-court-obsessed-originalism#:~:text=While%20judicial%20originalists%20continue%20to,the%20lodestar%20of%20our%20law.

Originally Posted by Russ Carroll

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

This bolded part is correct. Of course I am not suggesting otherwise. What I’m saying is that the simple statement you’ve made above is incredibly complicated to implement. Honest and brilliant scholars spend their lives on the process of interpreting the constitution. And honest brilliant scholars often come to different conclusions on the many nuanced details. Ruth Bader Ginsburg and Anthony Scalia respected each other, admired each other, were both brilliant, and seldom agreed on constitutional issues.

is it fair to say that one core purpose of a Christian minister is to convey to lay persons the meaning of the word of God?  Why then are there so many overt and nuanced differences amongst the interpretations of various honest Christian schools of thought?

if Christian philosophy is true, perhaps one day God will reveal to you what he meant in plain simple terms. We have no such luxury of an omnipotent being having the final say with the constitution.

More on the constitution later.

Originally Posted by Russ Carroll

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

This is the naïve part. Please note that I’m not talking about the fundamentals. All nine justices agree that free speech , for example,is a sacred right that must be protected. They differ on various specific factual patterns,where some might argue that the government isn’t infringing on the right to free speech and others might argue that the offensive law is Unconstitutional.  I am talking about exceptionally important details concerning the interpretation of the constitution. But details, nonetheless.The justices disagree on many of these details, and it keeps the court busy. Some like Scalia are typically called conservative justices and others like Ginsburg are typically called liberal justices. These labels describe their fans more than they describe the justices, though, in my opinion. I think Scalia had a judicial philosophy that was more constrained by the language of the constitution whereas Ginsburg had a judicial philosophy that was more constrained by the needs of society. Both justices had valid, although differing points of view.

Originally Posted by David Cotterell

He's 38 years old.  At what age does a political commentator achieve adulthood so that you can respect his position?

And I'm bewildered by this scenario: "...liberal justices applying liberal judicial principals ..."  (implying, of course, that conservative justices apply conservative judicial principles).   This is a big problem, one that you have lived with all your life so that you don't even notice how fucked up it is.  You have laws, you have a constitution and a bill of rights.  These shouldn't have a 'right' or a 'left'.  But in America they do.  

Dave

in Canadian jurisprudence you also have liberal and conservative bias at play.

P.S.   it is absolutely not messed up. It is the best system around. And not that different from what you have in Canada. 
Let’s talk about Roe v. Wade. You are familiar with that case I am sure.   Do you think it was correctly decided in the 70s? Why or why not?

Originally Posted by Russ Carroll

Man, I am not comfortable with this. Correct me if I am wrong, but the core job of the Supreme Court is to test whether something is constitutional or not, no? You implies that constitutionality cant really be determined because it depends on the viewpoint of the Justice. That implies the Constitution cant really be followed as a standard. Shouldnt it be that regardless of your political persuasion, a Justice that is legally qualified should come to the same conclusion consistently on any given issue?

The Commerce Clause of the U.S. Constitution grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,"

That’s it, 15 or 16 simple words.  Every justice who has ever served on Supreme Court agrees with those words.

But the details… Oh my goodness, the details!  it probably will not surprise you that there are at least many hundreds and maybe 1000s of supreme court cases interpreting the scope of federal authority under the commerce clause. It is not an exaggeration to say that the entirety of the modern federal bureaucracy is built on the commerce clause.   

Many people, and many justices, think the federal government should have more power than it currently does to regulate interstate commerce. Think, for example, of the climate change activist crowd. Other people, and many justices, believe the federal government has overstepped is authority with respect to the regulation of interstate commerce.  I don’t think it is reasonable to say one side is “right“ and the other side is “wrong.“  I’m stating this, even though I hold my own opinions just as strongly as Rod holds his.

this thread started started with a good guy accusing the Roberts court of being “hacks” because he disagreed with some of their constitutional interpretations. Hopefully I am demonstrating that there is not one correct answer to any complicated constitutional issue.   Even in Canada!  

Think about the commerce clause and how it has or might be interpreted.  Ponder for a moment that interpretation of the commerce clause is pretty much the sole driving force shaping the evolution of The authority of the federal government To regulate interstate commerce from the 1780s to today.   

I could pick out virtually any clause in the constitution or Bill of Rights, and find countless cases interpreting the nuances. Russ, if I want to send you a bazooka for Christmas, I cannot.   Why not? The second amendment does not expressly prohibit the sale or gifting of bazookas!   We could literally spend years parsing the scope of each clause in the constitution, and often we would not agree on the details.

JB: "Russ, if I want to send you a bazooka for Christmas, I cannot.  Why not? The second amendment does not expressly prohibit the sale or gifting of bazookas! "

True, but that's because Clarence Thomas' "originalist" interpretation means that since a bazooka wasn't an historical standard firearm in 1776, it can be regulated but if it were an historical standard back then, then feel free to order and ship and that would be just spiffy with Clarence...

Originally Posted by James Brown

in Canadian jurisprudence you also have liberal and conservative bias at play.

P.S.   it is absolutely not messed up. It is the best system around. And not that different from what you have in Canada. 
Let’s talk about Roe v. Wade. You are familiar with that case I am sure.   Do you think it was correctly decided in the 70s? Why or why not?

I'm a retired music teacher, not a legal scholar, so I absolutely can't go toe to toe with you on this, James.  

The 70's Roe v Wade was something I agreed with then and now.  My reasoning may not be the same as that court, though.  IMHO that 70's  decision separated church and state, considering that anti-abortion feelings are deeply connected to a  religion.  One particular religion should never be the basis for law.  The personal choice of the mother transcends any and all religious rules.  The overturning by the current court had megatons of religious pressure behind it and is wrong as a result.

 Speaking of the Canadian situation, it is interesting to note that the average Canadian couldn't name even one of our Supremes or  their leanings, if they have any. (I had to look them up just now to realize that I did not know or recognize any of their names.) The appointments, when they happen are 3rd page news at best and carry no controversy at all.

Vastly different than the USA where  the names and leanings of the court members are well known, being in the news every 5 minutes and are viciously contested at nomination time.  I would not be as bold as you to suggest it is the best system around. 

Dave

Dave

Originally Posted by David Cotterell

I'm a retired music teacher, not a legal scholar, so I absolutely can't go toe to toe with you on this, James.  

The 70's Roe v Wade was something I agreed with then and now.  My reasoning may not be the same as that court, though.  IMHO that 70's  decision separated church and state, considering that anti-abortion feelings are deeply connected to a  religion.  One particular religion should never be the basis for law.  The personal choice of the mother transcends any and all religious rules.  The overturning by the current court had megatons of religious pressure behind it and is wrong as a result.

 Speaking of the Canadian situation, it is interesting to note that the average Canadian couldn't name even one of our Supremes or  their leanings, if they have any. (I had to look them up just now to realize that I did not know or recognize any of their names.) The appointments, when they happen are 3rd page news at best and carry no controversy at all.

Vastly different than the USA where  the names and leanings of the court members are well known, being in the news every 5 minutes and are viciously contested at nomination time.  I would not be as bold as you to suggest it is the best system around. 

Dave

Dave

I should have been more clear that yours, ours, Australia’s, New Zealand’s, and of course Great Britain’s are the best system around.   Plus any other system that is some variation of the English system of judges, juries, and individual rights.   The US and Canadian systems of jurisprudence are very similar.   

You said that the US system was “F’d”.   In response, I am demonstrating that it, along with any system tracing its roots to the Magna Carta, is not F’d, on the contrary it is the best.