What Makes Our Supreme Court Special, And How Do We Get Back There
There is such a frenzy out there about the nomination of Judge Brett Kavanaugh and whether or not he should be approved by the Senate. That frenzy has it’s roots in the partisan political divide, we as a country have allowed us to rip ourselves apart. It appears that issues related to gay rights, women’s control of their own body, church/state separation issues, civil rights and access, have become the political litmus tests for confirmation or rejection of judge nominees. In the case of nominations that are made by republican presidents, the nominees tend toward conservatism. For those made by democratic presidents, the nominees tend much further to the left. These nominations almost always lead to senate battles over the political beliefs of the nominees and indications of what political leaning will influence the justice’s political decisions.
The process has made a mockery of the current Supreme Court and its’ nomination process. This is not a democratic or republican issue since both parties are guilty of making it so. Each party votes in almost lockstep with the directives of the leader. The process has been almost a purely political battle for at least the past quarter century. This is a travesty for our nation.
We need a rational, non-partisan court system. One that allows the citizen to recognize that the decisions rendered by the court are really based on law and not politics. We do not have that. Instead, Presidents and Senators have managed to bring political ideologues forward to sit on a seat, and have vetted these nominees on his personal view on any hot button political issue that is trending. Thus there is no doubt how the justice will vote on specific hot button issues………no need for factfinding…….no need for detailed investigation…….no need for anything other than an implicit or sometimes explicit knowledge of how the nominee will vote on any issue.
We have to get back to a court of last resort being one that respects the needs of the majority while protecting the needs of the minority. We must have justices who do not have to pass a litmus test of fealty to a political ideology. We must have justices who rule based specifically on the evidence placed before them. We must have justices that act as a legitimate listener of the evidence before them, with a willingness to “vote where the evidence leans”, not on the basis of what their nominating party wants. We need a judiciary that continues to have the majority of their decisions at 9-0 or 8-1, but a court who, when 6-3 or 5-4 case shows independence and may have identified “liberals and conservatives” on one side with other “liberals and conservatives on the other side.
The SCOTUS should be the most respected and honest of our political branches. It should be non-partisan. It cannot be what we see now, a group of 9, constrained by their political views, their backers, etc.. This, as every court, should be an independent thread not a partisan extension.
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Let's try to be a bit more non-partisan on this issue. It is important that the court be as apolitical as a check and balance on the other sectors of government. Positive recommendations are encouraged.
Ideally, nominate and confirm candidates for SCOTUS Justices who won't bend toward party or political lines or affiliations, and who can logically and rationally review cases on the facts presented as well as incorporate established precedents where appropriate. We need justices who can avoid personal biases and beliefs when deliberating on the merits of a case. Or, to make it simple, nominate justices who are the opposite of former Justice Scalia.
We need justices that follow the laws and the constitution. Not ones that treat them like living breathing documents they can use the bench to bend them to what they think they should mean. Or to make it simple no RBG.
The Constitution is not a static document. SCOTUS Justices are supposed to interpret it when determining the constutionality of laws. That's their job.
So basically confirm justices that think like you.
So having a Justice who bad mouths a sitting President is not partisan?
I would hope for a non partisan SCOTUS but we both know that isn't going to happen. I don't care for Kavanaugh because of his stance on the 4th.
But that being said the left thinking that Hillaryious Hillary would win were getting giddy that they could stack the courts to go after the 2nd Amendment.
That is one of the reasons I voted for Trump with all of his many faults.
His Presidency can be overcome just like Obama's was with a EO.
The problem isn't interpreting the constitution, it is the approach to interpretation.
The original intent of the court according to the founders was to make sure the issues fit within the framework of the constitution.
The other side of the coin is those that think the courts job is to fit the constitution to the issues......
TJ, (Thomas Jefferson) wrote about this phenomenon at length in his papers.... and clearly makes the case that the founders ideal was that issues before the court need to fit within the boundaries of the constitution....
Throughout our history as a nation, those two differing ideals have had sway over the court at different times.....
It is part of the way it works.....
And makes for some very contentious debates at times....
Read my initial post again! I said nothing about confirming justices who think like me or oppose the President. Get back to me when you can formulate a more rational and less emotional reply.
Interpretation of the Constitution includes reviewing the constitution and relevant precedents. What other approach is there? But Constitutional interpretation is the responsibility of the SCOTUS.
Okay.
Well golly gee let me try to post without seeing to emotional.
What would be the opposite of Justice Scalia ? hmmmm let me ponder this, could it be someone who leans left?
Maybe you need to be more definitive on your position?
Get back to me when you can properly express what you mean.
SCOTUS Justices use the Constitution to determine if laws are constitutional. But legal issues are not always black and white. That's why Justices need to interpret the constitution as it applies to relevant legal issues that come to them for review.
The opposite of Scalia is someone who can deliberate on an issue logically and objectively rather than on their own beliefs and biases. I made that clear in my initial post too.
followed by
I said nothing about confirming justices who think like me.
followed by:
The opposite of Scalia is someone who can deliberate on an issue logically and objectively rather than on their own beliefs and biases
Good stuff.
Thank you . I'm glad you agree.
They interpret the constitution to determine the Constitutionality of a law.
Well why didn't you just say all of the court. Every sitting member is biased in some way and interprets law differently.
What was your problem with Scalia?
You said:
Why not "nominate justices who are the opposite of RBG"?
The President can nominate whomever he wishes. But Scalia is am example of a Justice who can't rule objectively or impartially.
Scalia was a theocrat who prefered rulings based on religious bias. Obergefell is one example.
Really? Should be easy to point that out in in his dissent then. Can't wait to see what you make up to support that fantastical opinion of yours.
I mean just look at this language:
"The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance."
Actually what it shows is that neither Scalia nor any of the other dissenters were able to come up with any rational basis or legitimate secular state purpose to deny same-sex couples the same right to marry as opposite-sex couples enjoy, much less the compelling reason which sex-based discrimination requires nor the narrowly tailored compelling reason which a denial of a fundamental right requires. All they needed was just one such purpose but they couldn't find even one.....which explains why the ban was struck down the very first time the court considered it on its merits.
None of the right-wing dimwits could explain what difference between race-based and sex-based discrimination in this context somehow magically made the latter constitutional, nor could they explain why it took the court 99 years to realize that mixed-race couples had a constitutional right to marry.
What the Romer v Evans, Lawrence v Texas, Windsor v US and Obergefell v Hodges rulings reveal is that the conservatives on the court not only don't understand what equal protection of the law requires but they also have no secular basis whatsoever for their anti-LGBT animus. Scalia's and Thomas' dissents in some of these cases plainly reveal their nutty superstitious bias (especially in Lawrence), and their dissents in the other cases reveal they literally have no rational basis for that dissent (ie, they're trying to mask their religiously motivated hatred of gays by ranting about procedural irrelevancies). Moreover the dissents reveal no comprehension whatsoever of the role the courts must play when the majority irrationally discriminate against a disfavored minority. They seem to have no problem with the tyranny of the majority.
The part I find funniest about Scalia's dissents is that he sometimes hits the mark when he's whining the loudest, like with the road map he drew to marriage equality in Windsor, or his utterly clueless rant in Lawrence that bans on mixed-race sex and marriage were bad because they were motivated by white supremacy.......yet he didn't see that bans on same-sex relations were motivated by an equally unconstitutional drive for hetero supremacy.
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Sounds like you're rather foolishly quoting the guy who not only came out twice in 1995 in full support of marriage equality but campaigned against Prop h8 in 2008 and promised to get DADT and DOMA repealed. Or are you one of the really gullible folks who didn't understand the full context of that quote which was a distinction between his personal religious views and his public policy support for full and equal legal treatment?
So is RBG.
So that's a long way of saying, "You are correct, there is zero evidence of "religious fervor in the Scalia's dissent.
Obviously, you didn't read Scalia's dissent, or you don't understand it. If you were able to understand what the dissent's are arguing, you'd realize how silly your statement is "nor the narrowly tailored compelling reason which a denial of a fundamental right requires.denial of a fundamental right require." Tsk. Tsk, that's a fundamental misstatement of Scalia' point.
're rather foolishly quoting the guy who not only came out twice in 1995 in full support of marriage equality
No, I'm quoting a guy who claimed "someone else" filled out a questionnaire in his name in 1996 in support gay marriage. And who said in 2004, again "I don't support gay marriage."
Please don't tell me you are one of those gullible folks who believe he supported gay marriage since the 1990s? You know there's this thing called the internet, and his record of opposing gay marriage is right there for you. Even his campaign manager admits he publicly opposed gay marriage because of fear of offending the black churches, until after Joe Biden did in 2012, right?
Amusing that his worshipers now want to rewrite history to paint "Mr. Someone else filled out that questionnaire" as some stalwart defender of gay marriage. Too funny.
No, it's saying that the religious basis for Scalia's anti-LGBT animus is quite blatant in his dissent in Lawrence, and that his inability to cite any secular basis for his dissents in Windsor and Obergefell shows that his religiously-based anti-LGBT views haven't changed at all. The fact that he utterly lacked a secular rational basis shows that the true motive wasn't rational or secular but rooted in his profoundly anti-LGBT Opus Dei superstition, although he knew that he couldn't directly admit that. His public commentary on this issue is very revealing too as was this part of his irate and moronic dissent in Lawrence where he makes it clear that he's terrified by the prospect of marriage equality:
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Same thing in Romer v Evans where he defended a wholesale exclusion of gays from the protection of non-discrimination laws as “modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority.”
So we see that he opposes on a "moral" basis both marriage and sex when same-sex couples or gays are involved, and even opposes non-discrimination laws in regards to those minorities. He made a similar comment in Windsor where he listed marriage equality as the first of the parade of horribles which would result. As Kennedy correctly noted in Lawrence, "this Court’s obligation is to define the liberty of all, not to mandate its own moral code."
But as I said the funny part is that he often got the equal protection aspect right when religion was involved in his rulings like when he said “A tax on wearing yarmulkes is a tax on Jews.” Scalia was obviously correct about that. His fundamental problem was that he couldn't understand that the exact same equal protection which protects Jews and other religious minorities also protects gays and same-sex couples. Otherwise he would have seen that a denial of same-sex marriage is unconstitutionally intended to harm gays and same-sex couples just like a denial of mixed-race marriage was intended to harm mixed-race couples.
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Sure. That's what politics is all about. But as Axelrod stated Obama always supported marriage equality even when he was pandering to the extremely gullible bigots who opposed it. That's why he carefully parsed the distinction between religious views and public policy views. Only a moron would have missed that and superstitious bigots do tend to be extremely dumb......just like Scalia.
That may have been true. I think his dissent in that case is poor. Alito's is much better.
I suspected Scalia of the same thing in Gonzalez v Raich, a medical marijuana case where I think he ruled the way he did because he just disapproved of pot.
The majority opinion in Obergefell, while pretty to read, is, in my opinion, poorly decided. I don't see any justification for a due process analysis and the majority did not employ its usual vigor with respect to the equal protection analysis (which imo, was the best place to go with gay marriage). For example, we still don't know if sexual orientation is a suspect class and we can't really discern what level of scrutiny was employed. Those are central to any equal protection analysis.
As happens sometimes, even though I personally might be ok with the result, I don't think it's a decision properly grounded in the law.
By contrast, in Romer v Evans (1996), the court employed a Rational Basis standard for sexual orientation, which means it's not a suspect class. Even so, the statute lost in that case because the Court found it actually failed the RB test because it was conceived solely with an irrational animus toward the class. That's very unusual and I have always found it novel, but I think it's a more sound holding than Obergefell. At least the Court was sort of following its own rules.
It's hard not to feel like the majority in Obergefell ruled as they did simply because they liked that outcome and that's not the way we're supposed settle these things.
Obergefell was ruled based on both due process and equal protection, FYI. The due process aspect is because marriage has been recognized as a fundamental right since 1888.
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No, it just means that under the doctrine of judicial restraint a conclusion could be reached based on rational basis review alone. It wasn't necessary to go beyond that (although it is true that at the time neither SCOTUS or the 10th Circuit treated sexual orientation as a suspect class). In fact Romer is the case which established the use of "rational basis with bite" in regards to gays, meaning that a discriminatory law can't be arbitrary and must serve a legitimate secular state purpose particularly when it targets a disfavored class.
Note that Kennedy doesn't use a tiered scrutiny analysis and is generally opposed to the concept, something which explains why his rulings are sometimes seen as amorphous "hand waving" rather than the analysis by narrative which they really are. The outcome however is the same.
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That's just a truly silly and uninformed comment. Even if strict scrutiny weren't entailed because marriage is a fundamental right, or heightened scrutiny due to discrimination based on the relative sex of the spouses, the fact that there was no legitimate secular state purpose or any rational basis whatsoever for the denial of marriage to same-sex couples meant that it failed a rational basis test and thus violated equal protection.
That's ultimately why these bans were struck down the very first time SCOTUS ever considered them on their merits.
Yes I know. I believe I referenced both. Still you seem to feel the need to act like I need educating on the point.
The Court did not perform a rational basis analysis. That, at least, would have been consistent.
Childish shit like this is why I don't like talking to you. I try to give you a chance. I try to just offer straight up conversation, but you can't handle it. You're too concerned with "winning" something.
Silly? Uninformed? Suddenly you don't like my conclusion so you just need to throw tomatoes. It's so tiresome.
You said "I don't see any justification for a due process analysis" which shows that you either didn't read or didn't comprehend the reasons which were very plainly provided. It shows at the very least that you didn't know that marriage is a fundamental right subject to strict scrutiny or that the right to marry is protected through the liberty clause of due process and has been for 130 years, and you seem to want to ignore the numerous precedents in this area not just on the issue of a fundamental right but also on what level of judicial scrutiny was used in the analysis.
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They most certainly did in regards to equal protection but it seems you prefer such a minimal rational basis standard that no citizen could ever prevail on a rational basis review against an unjust law even in cases where the law is as blatantly unjust, irrational and unconstitutional as these anti-gay laws were (and yet they do at least 20% of the time). That's because you're coming from a theocratic viewpoint and would prefer an outcome which supports your superstitions and your anti-gay views just like Scalia and the other Christian extremist conservatives on the court.
But the real problem for folks like you and other conservatives is that you can't just come out and admit that theocratic bias so you have to cloak those improper and unconstitutional motives in other language with appeals to "tradition", "public morality", etc......and even try to use the most lenient possible standard of scrutiny in order to let an unjust law stand - despite the bible-babble, anti-gay animus and hetero-supremacist agenda being clear for all to see. Another problem is that a tradition of irrational and harmful discrimination is not a reason to continue it.
Ultimately the reason your side lost the very first time the issue was considered is that you were unable to cite even one legitimate secular reason for the ban; in fact the reasons given directly undermined the stated objectives. If you had been able you might have been able to string the country and the courts along for a few more years but you ultimately would have lost due to strict scrutiny of a fundamental right.
There's so much irrational political bullshit in there. You don't even comprehend what I wrote initially. Let's agree to disagree.
Like what exactly? Please be precise.
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Really? LOL. Let's take your statement here: "By contrast, in Romer v Evans (1996), the court employed a Rational Basis standard for sexual orientation, which means it's not a suspect class. Even so, the statute lost in that case because the Court found it actually failed the RB test because it was conceived solely with an irrational animus toward the class. That's very unusual and I have always found it novel, but I think it's a more sound holding than Obergefell."
The part I bolded is correct but then you fail to see the direct link to Obergefell, especially since the "rational basis with bite" approach isn't novel at all. It's just the court doing its job (in the context of deference to a duly enacted law) when that law clearly targets an otherwise lawful class instance for harm. In all 3 cases the plaintiffs proved the irrational animus towards the class (in fact centuries of irrational animus) AND that the purported reasons for these anti-gay laws were self-contradictory as well as both under inclusive and over inclusive. For example this is from Obergefell:
How so? RBG is far better than Scalia ever was in that regard.
I think that's one of those cases where "better" depends very much on the view from where one is standing.
Yes....it is !
The only thing that makes it Sewage Fluid...are the "Feelings" laws that have been passed "Around it" over the decades. The "Constitution" itself NEVER changes ……. Not one bit.
For the sake of accuracy... let's not forget that the Constitution has indeed been changed many, many times. There is even a defined process for doing so.
True !
Last one I know of was in 1971 : "Prohibits the denial of the right of US citizens, eighteen years of age or older, to vote on account of age. "
Scalia was a Conservative Roman Catholic and had the standard Catholic views on certain issues, such as abortion. Same Sex marriage was no different. Regarding Obergefell, Scalia argued that it was "extreme" for the court to endorse a practice [same sex marriage] "which is contrary to the religious beliefs of many of our citizens." Of course, nothing was being "endorsed." Marriage rights was being affirmed for same sex couples. There is no logical or legal reason given to deny same sex couples the right to marry.
No... it is not!
I view the expansion and recognition of individual rights as "better." Especially when there is no sound or logical reasoning to demonstrate otherwise.
I agree there.
after trump replaces ginsburg (for the hat trick) we will be that much closer to a solid court.
cheers
The only way to really fix it is to go back to the standard that prevailed for most of the 20th century before Bork. Back when the Scalias of the world got 98 votes.
The Senate should examine the nominee's qualifications and background. Absent a red flag( financial misdeeds etc.) a President's pick should be confirmed. Confirmation should be almost automatic. A Democratic Senate should confirm a Bork. A Republican Senate should confirm a Garland. The farther we go down this road, where the Senate obsesses about farting references in high school yearbooks, the harder it will be to ever return to a semblance of normalcy.
Pretty much.
"How do we get back there?"
You don't. Its all about the money now. Until very recently, I have never---ever seen political advertisements on the TV pro or con for a Supreme Court Justice. Thank you Citizens United for turning our political process into just another corporate exercise.
I see a lot of comments about the Constitution is a "living document"...no...it's a "static document"
No matter how you look at the Constitution, you must remember that society changes and progresses. When the constitution was first drafted, slavery was legal and women did not have the right to vote.
That's the important thing about nominating a SCOTUS judge. Society changes and progresses.
And that's exactly what conservatives like Scalia want to return to, a past when only rich land-owning straight white Christian men had rights. Prisoners, women, gays, racial minorities and employees have few if any rights which his "textual originalism" would protect despite what the 14th Amendment clearly states.
One irony is that Italian Catholics like Scalia would have been lynched in the pre-1868 past he so feverishly sought to return to.
E.A Interesting so WHY do so many insist on their " Constitutional Right " when they have NO Such rights?
Apparently bigoted and superstitious conservatives were wrong about that, eh? Maybe they need to learn about various developments in the US constitution since the civil war.
E .A 5.1 Skrekk replied to Trout Giggles @5
" When the constitution was first drafted, slavery was legal and women did not have the right to vote"
END!!!
Correct. That version of the constitution hasn't existed since 1865 and 1920, respectively.
Sounds like you long for the good old days.
Honestly, I can't tell what he wants.
He's great at creating sentences which have no apparent meaning.
Everyone is whining and crying about how political the Supreme Court is. AND who, (meaning which side) made it that way.
The Founding fathers made it that way..... bitch at them....
Anyone remember Marbury vs Madison? I mean we all know that is the case where the supreme court basically took the powers they have today by declaring that contrary to the constitutions limits on the federal judiciary, the intent was for the court to have jurisdiction over ALL laws in this nation, not just the limited extent the constitution allowed.
And that is all well and good, the Congress in it's infinite wisdom never took the opportunity to fix that usurpation of power and President Jefferson was willing to let it slide cause he got what he wanted....
What was it that Jefferson wanted?
Jefferson wanted to appoint Democrat-Republican judges to the federal court bench, the problem was that Adams, as a gift to Jefferson had already pushed thru congress an expansion of the federal court districts (doubling the number of courts) and filled them with Federalists. Yes our second president, and a signer of both the declaration of independence and constitution set about packing the federal judiciary based upon political affiliation.....
At that time it was the Secretary of State and got to deliver the approved appointments which were known as warrants. and you didn't become a federal judge until you received your warrant. several of Adams appointments that were passed by the senate hadn't received their warrants before Jefferson took office and the senate switched parties. the D-R's now had control the Federalists were out. Jefferson went ahead and made his own appointments overnight got them approved by a favorable Senate and had Madison (his SoS) issue the warrants and insure their prompt delivery.
Marbury was one of those justices that hadn't received his warrant although he had been nominated, approved and the warrant had been written and signed by Adams, just not delivered in time by Adam's SoS. He petitioned the SC for a ruling that what Jefferson had done was unconstitutional. Federal procedural issues could be taken directly to the SC in those days.
A back door bargain was struck. The Supreme Court would rule for Madison and (proxy for Jefferson) but then Jefferson and the D-R's in congress would not challenge the SC's power grab of making themselves the arbiter of the entire body of law in the nation.
They ruled in Madison's favor and Marbury was out....
So yes, it was the founders that made the federal courts political in nature and established the practice of packing the court with appointees favorable to your political philosophy....
Marbury v Madison, 1803 , is why it is done the way it is done today. (the link takes you to a page showing the historical source documents in a timeline fashion)
And as my great friend Walter Cronkite would say it..... "And that's the way it was; February, 24th, 1803"