cajunrevenge
Well-known member
I dont see how thats a conflict of interest for Kagan. There may be no ethics rules for the Supreme court but there are for lower courts and none of them would be allowed to vote on anything involving their own wife.
Legal/scotus thread
- Thread starter cajunrevenge
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striker42
Well-known member
It's standard that when you worked on a case or oversaw work on a case then you have a conflict as a judge or as opposing counsel for that case. It's pretty clear cut and if she was a lower court judge she'd have almost certainly recused herself.
SCOTUS justices not recusing themselves when they should is nothing new though. It happens more frequently than people think.
striker42
Well-known member
As Aristotle said, the law is reason free from passion. Ultimately I don't take emotional outbursts free from reason seriously in regards to legal analysis. I just find them annoying.
As far as your question goes, I have a friend who describes the court not as a group of justices but as a council of wise, learned men and women. They don't make decisions based on the law, they make decisions and then try to find legal justification.
The same was true when Roe was decided. Roe's legal reasoning is famously poor. The court had an end they wanted to achieve, decided that way, and then tried to justify it. In ideological cases, it's what happens.
zitothebrave
Connoisseur of Minors
I don't disagree that the court has flaws in it's system. But like I said, it seems like the one general standard was the court would work around previous ruling. There are exceptions of course, but generally those exceptions came because of either a clearly unconstitutional ruling like Minersville School District v. Gobitis, which I know is what will be argued by the right, but there's a whole lot more nuance than this.
I personalyl wish that we would just ratify the law nationally. Abortion has much more favor than not. More people believe in unregulated abortion over no abortion.
striker42
Well-known member
The problem is that there's no majority sentiment in regards to abortion. There's a conception that it's either pro-choice or pro-life. It's far more of a spectrum. You have people who think abortion should never be legal, those who think it's okay if the mother's life is at risk, those who would include rape and incest in allowed abortions, those who think it's only okay in the first trimester, those who think it's okay before viability, those who think it should always be legal, and those who see it any abortion as a good thing.
There's no majority support for any of those points on the abortion spectrum. A majority of Americans support a right to an abortion in some form but what they consider to be the extent of that right varies.
striker42
Well-known member
Here are my thoughts on the case:
First, let's not beat around the bush in regards to Roe and Casey. Those were cases that were 100% the court wanting a certain result and the legal reasoning to get there was terrible. The court sat as a legislature in deciding those cases. You can agree with the result or not, but the legal reasoning is bad.
As for this case, let's be honest as well. This was an outcome driven case as well. The majority tried its best to explain why stare decisis doesn't apply but the reasoning was tortured there too. The majority cited Plessy v Ferguson / Brown v Board of Education as justification but that's kind of the legal equivalent of Godwin's Law. If you have to rely on that instance of not following stare decisis then you're probably doing something wrong.
There was another line from the case that I absolutely loathe seeing in cases. The majority knew that its reasoning could be used to try to overturn things like gay marriage or rights to contraceptives, so the majority had to specifically say that the reasoning applies only to abortion and cannot be used in any other context. When you limit the application of a case like that it's usually a giveaway that you're not in love with your reasoning. If you've done things correctly, you shouldn't be afraid of your reasoning being used in other contexts.
Next, I don't think people realize the court didn't pick a winner. Roe v Wade picked the pro-choice side as the winner. This case doesn't pick the pro-life side as the winner. The court could have gone a lot farther. If the court had held that a fetus is a person and has all the constitutional rights of any other person, then abortion becomes immediately illegal everywhere. All of sudden you have murder statutes applying. By tossing the issue to the states, the court basically let the game continue.
My final point on this case is that the court did what probably should have been done in Roe v Wade. Ginsburg once said Roe v Wade was a mistake as choosing a winner shut down the abortion debate and just entrenched the sides. Her belief is that there would eventually have been a consensus on allowing abortions had the court not short circuited the debate. However, Roe v Wade was decided the way it was so there was a strong argument for stare decisis to apply. Whether it should have is something for debate though.
First, let's not beat around the bush in regards to Roe and Casey. Those were cases that were 100% the court wanting a certain result and the legal reasoning to get there was terrible. The court sat as a legislature in deciding those cases. You can agree with the result or not, but the legal reasoning is bad.
As for this case, let's be honest as well. This was an outcome driven case as well. The majority tried its best to explain why stare decisis doesn't apply but the reasoning was tortured there too. The majority cited Plessy v Ferguson / Brown v Board of Education as justification but that's kind of the legal equivalent of Godwin's Law. If you have to rely on that instance of not following stare decisis then you're probably doing something wrong.
There was another line from the case that I absolutely loathe seeing in cases. The majority knew that its reasoning could be used to try to overturn things like gay marriage or rights to contraceptives, so the majority had to specifically say that the reasoning applies only to abortion and cannot be used in any other context. When you limit the application of a case like that it's usually a giveaway that you're not in love with your reasoning. If you've done things correctly, you shouldn't be afraid of your reasoning being used in other contexts.
Next, I don't think people realize the court didn't pick a winner. Roe v Wade picked the pro-choice side as the winner. This case doesn't pick the pro-life side as the winner. The court could have gone a lot farther. If the court had held that a fetus is a person and has all the constitutional rights of any other person, then abortion becomes immediately illegal everywhere. All of sudden you have murder statutes applying. By tossing the issue to the states, the court basically let the game continue.
My final point on this case is that the court did what probably should have been done in Roe v Wade. Ginsburg once said Roe v Wade was a mistake as choosing a winner shut down the abortion debate and just entrenched the sides. Her belief is that there would eventually have been a consensus on allowing abortions had the court not short circuited the debate. However, Roe v Wade was decided the way it was so there was a strong argument for stare decisis to apply. Whether it should have is something for debate though.
sturg33
I
The court took the decision out.of the hands of 9 unelected judges and gave it to the people to vote on.
The "pro DEMOCRACY ™ people are livid
striker42
Well-known member
The thing that has annoyed me the most is seeing some variation of the following argument over, and over, and over, and over:
"We shouldn't tell women what to do with their body"
That has flooded my social media and people just cannot for the life of them see the error of their logic. They can't see that this argument is based on the assumed and unproven premise that the fetus is part of the woman's body and has no rights of its own.
Even without this decision a woman's right to an abortion was not absolute. Even in states that have zero regulations on when you can get an abortion, women are still limited in their rights to get one. Suppose a woman can't afford an abortion and so robs her next door neighbor for the money. The woman's right to an abortion does not trump the neighbor's right to their property. Basically, the right to an abortion existed until it infringed upon the rights of others. So if a fetus had rights then the woman getting the abortion would be infringing upon the rights of the fetus.
The central question in abortion is always what rights does a fetus have. If a fetus has no rights, then any regulation on it would be infringing upon a woman's rights to her own body. However, if a fetus has rights of it's own then it's not a simple case of woman deciding what to do with her body as the right to make decisions about your body is limited when it conflicts with the rights of others.
However, this is a question no one wants to discuss because it doesn't have an easy answer. There's no objective way of proving when legal rights accrue or when moral duties begin. It's far simpler to just assume your belief in that regard is correct and then argue that abortion regulations are evil attempts to control women's bodies (for the record, the same assumption is made by the pro-life side when they shout abortion is murder).
I honestly don't care what your answer to the question of what rights a fetus has is. I just want people to examine their beliefs and realize that their moral outrage is based on a very difficult question that no one can answer with complete certainty and which people can disagree on.
"We shouldn't tell women what to do with their body"
That has flooded my social media and people just cannot for the life of them see the error of their logic. They can't see that this argument is based on the assumed and unproven premise that the fetus is part of the woman's body and has no rights of its own.
Even without this decision a woman's right to an abortion was not absolute. Even in states that have zero regulations on when you can get an abortion, women are still limited in their rights to get one. Suppose a woman can't afford an abortion and so robs her next door neighbor for the money. The woman's right to an abortion does not trump the neighbor's right to their property. Basically, the right to an abortion existed until it infringed upon the rights of others. So if a fetus had rights then the woman getting the abortion would be infringing upon the rights of the fetus.
The central question in abortion is always what rights does a fetus have. If a fetus has no rights, then any regulation on it would be infringing upon a woman's rights to her own body. However, if a fetus has rights of it's own then it's not a simple case of woman deciding what to do with her body as the right to make decisions about your body is limited when it conflicts with the rights of others.
However, this is a question no one wants to discuss because it doesn't have an easy answer. There's no objective way of proving when legal rights accrue or when moral duties begin. It's far simpler to just assume your belief in that regard is correct and then argue that abortion regulations are evil attempts to control women's bodies (for the record, the same assumption is made by the pro-life side when they shout abortion is murder).
I honestly don't care what your answer to the question of what rights a fetus has is. I just want people to examine their beliefs and realize that their moral outrage is based on a very difficult question that no one can answer with complete certainty and which people can disagree on.
Because we don't have jurists on the bench from the left. They are straight activists and want to fundamentally change the country to their communist utopia ****hole.
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Massive - Media organizations are nothing more than PAC's that are attacking their opposition. Can't wait for something like this happens and rags like WAPO/NYT get crushed in lawsuits.
Clarence Thomas will go down as one of the greatest Americans of all time.
Massive - Media organizations are nothing more than PAC's that are attacking their opposition. Can't wait for something like this happens and rags like WAPO/NYT get crushed in lawsuits.
Clarence Thomas will go down as one of the greatest Americans of all time.
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Tapate50
Well-known member
This.
sturg33
I
Why don't lawmakers who pass these illegal laws go to jail?
sturg33
I
Scrolling through the takes on twitter, from our "highly educated" blue check journal lists, really highlights how terrible the higher education system has become.
It has produced a bunch on ignorant cry babies who know nothing about our system or how it works
Remarkable the stupidity of the experts and academics
It has produced a bunch on ignorant cry babies who know nothing about our system or how it works
Remarkable the stupidity of the experts and academics
Jaw
It's OVER 5,000!
This take always cracks me up. The founders just watched a make shift Navy of privately owned ships bearing privately owned cannon fight the largest Navy in the world. To believe they would be upset by citizens carrying 10, 15, 30 round semi autos around is... interesting. All the years of jurisprudence that you reminisce about were years that it was blatantly wrong.
The "can't yell fire in a crowded theater" crew really, really need to look up the origin of that phrase.
And the Supreme Court has had a socially leftward, centralized government philosophy for longer than anyone on this forum has been alive. That didn't make it correct. We've seen them repeatedly (abortion, gay marriage, gun rights, etc) advance the social Left cause when the left couldn't do it through legislation. I'm enjoying the correction that's occurring now. Passionately.