United States Supreme Court Discussion Thread.

It will lead to a voter backlash. Let them overturn Roe, and watch what happens

I can't think of anything that would lead more quickly or decisively to Democrats being put back in power, and commandingly so,

Wanting is often better than having, and those that wish to see R v. W overturned would do well to think about the consequences of it being overturned. Of course, most of them won't, and that's part of why smart Republicans know that they can't afford to have it overturned, There would be a tremendous price to pay for it at the polls.

 

Roe cannot be overturned, it would simply be disastrous for this country.

 

It could be short-term loss for long-term gain.

 

You guys are overreaching concerning the Roe issue.

First, to alleviate the general hysterical paranoia, Roe won't be overturned at this time. Your belief in the right of sacrifice at the altar of convienience will not fall at this time. The only possible way that will happen is if there is another nomination that comes up and it is filled with a constructionist.

Secondly, the Dems have suffered enormously at the polls due to judicial activism. It has led to a rallying cry among conservatives to fight imposition of things like gay marriage and other legislated material imposed by progressive jurists.

Don't think for a second that the conservatives won't use the Eminent Domain ruling in their favor.

Don't forget, it was the progressives in the judiciary and that wishy-washy O'Connor which voted to redistribute property.

And THAT is a MUCH LARGER issue than Roe is.

 

Many liberals decried the Kelo v New London decision as well, DM.

Let's be fair here .

As far as Roe goes, I believe that if it were overturned, there would be a backlash against mainstream social conservatism much in the way that there has been a backlash against social liberalism. I believe that would be the galvanizing force that would bring many centrists who were undecided between center-right and center-left to bear "center-left".

What would be a judicial victory for conservatives would probably become a long-term legislative victory for liberals and moderates.

By consistent polling, greater than 60% of Americans support the upholding of Roe. The fact that they don't care enough to vote on this single subject doesn't mean they won't if the right becomes seriously threatened. The fact is that most pro-choice voters aren't single-issue voters, and most pro-life voters tend to be, giving the appearance of an overwhelming majority that does not exist nationwide. It is regional.


As far as activism goes, we both know that it is not confined to the left side of the aisle . The GOP's actions regarding Terry Schiavo-and the strong national backlash that followed-showed that there is no more support for conservative activism in this country than there is for liberal activism.

Peace,

V-03

 

Not the five who counted.

Let's be fair? The liberals hold a majority on the court, throw out property rights, and accusing them of doing such would be "unfair"?

Not quite. Again, conservatives aren't activists like liberals are: they just want the law to actually be followed intead of manipulated to political ends. If conservatives were activists, they would want to decide the abortion issue using the power of the court (like liberals did). All they want to do now is leave the matter up to the states, not legislate their morality on other people (like liberals did). In other words, they want a Constitutional solution intead of a politically activist one.

Comically enough, overturning Roe would only make the issue solvable by democratic means instead of tyrannical means. There wouldn't be a backlash against conservatism because, if you say abortion is so popular now, all the states would make abortion legal anyways.

Good for the politicians! At least conservatives are doing what's right by encouraging democracy instead of judicial tyranny.

Then 60% of Americans will vote to keep abortion legal. At least this way, they have a say in the matter.

What is very curious to me is that while liberals keep on telling us that the majority of people are pro-choicers, they are very afraid of Roe being overturned.

Rights are in the Constitution, not the personal writings of progressive activists.

So at the worst, each region will be more politically and democratically suited to its constituents instead of having an inefficient blanket ruling impose itself on every region.

Care to give any recent examples of conservative activism?

LOL, how was that judicial activism?

 

Not the five who counted.

A witty saying proves nothing (Voltaire, via American Pie 3, I believe.)



Let's be fair? The liberals hold a majority on the court, throw out property rights, and accusing them of doing such would be "unfair"?

If you believe the liberals hold a majority on the court, then your definition of liberalism is far different from mine.

Rhetoric.



Not quite. Again, conservatives aren't activists like liberals are: they just want the law to actually be followed intead of manipulated to political ends.

Bull. That statement is so patently false on its' face that I can smell it from here, and what a stench. Two words: Terry Schivo.

The law was absolutely followed there, and not only did hypocrites like Tom DeLay rail against the judiciary for actually adhering to the law and refusing to be "activist", he actually called for their impeachment. I was disgusted by that entire display, both as a physician and as an american.

If conservatives were activists, they would want to decide the abortion issue using the power of the court (like liberals did).

No, they want to decide other issues using the power of the court, such as forcing a puritanical, biblical view of sexuality on all americans that includes equating contraception with abortion, substituting faith-based scripture for science in public schools, discriminates against homosexuals and non-traditional family units, and furthers an "us-or-them" mentality.

Legal conservatives may wish to do as you say, but they are in the minority within the republican party-it is dominated by social conservatives who have absolutely no trouble manipulating whatever system of government they can to get what they want and then accuse "liberals" of being "activist".

All they want to do now is leave the matter up to the states, not legislate their morality on other people (like liberals did). In other words, they want a Constitutional solution intead of a politically activist one.

I have no problem leaving the solution up to the states if I thought that it would actually solve anything; however, on the abortion issue, conservatives would probably push to end legal abortion nationwide, and not stop at the state level.

Also, how do you reconcile state laws between legal and illegal abortion states, especially ones that make it a crime for a woman to go elsewhere to get an abortion, or prevents her from leaving using child welfare laws? There was a New York Times article that I posted on the subject a couple of pages back; go and read it, because it presents a pretty accurate picture of what would happen if left up to the states.

It would be very, very hard not to have some kind of federal involvment.


Comically enough, overturning Roe would only make the issue solvable by democratic means instead of tyrannical means. There wouldn't be a backlash against conservatism because, if you say abortion is so popular now, all the states would make abortion legal anyways.

What I meant that while many americans don't like abortion, they want to see it remain legal. I am one of them. Indeed, I think that many states would rush to enact laws guaranteeing some form of abortion rights, and some would not. Some would obviously be more restrictive than others.

I will ignore your comment on "tyrannical means" because I have already addressed it.



Good for the politicians! At least conservatives are doing what's right by encouraging democracy instead of judicial tyranny.

Judicial tyranny goes both ways.

See Bush v Gore.


Then 60% of Americans will vote to keep abortion legal. At least this way, they have a say in the matter.

Actually agree with you here. Now you are making arguments I can get my teeth around .

What is very curious to me is that while liberals keep on telling us that the majority of people are pro-choicers, they are very afraid of Roe being overturned.

I'm not afraid of it at all, I'm simply concern

 

Not quite. Again, conservatives aren't activists like liberals are: they just want the law to actually be followed intead of manipulated to political ends.

That's absurd. Plenty of conservatives interpret the constitution just to suit their personal beliefs, just like you say liberals do. Why do you think conservatives strictly uphold state's rights but barely enforce the separation of church and state? Because that suits their PERSONAL belief that states should be allowed to outlaw whatever they want, and because they PERSONALLY believe that there shouldn't be a strong separation of church and state, not because it's actually in the Constitution. If that's not judicial activism I don't know what is.

Take the right to privacy: a basic element of freedom. But conservatives think it doesn't exist because they want to outlaw "naughty" sex, abortions, and contraceptives.

In reality, the right to privacy couldn't be laid out more clearly in the Constitution. The 9th amendment says there are more rights than just the ones listed in the Bill of Rights. And oh yeah, what was that pesky word written all over the Constitution? Liberty. I don't think it's liberty includes outlawing personal decisions that don't infringe on anybody else's rights or even affect anybody else in any way. Liberty allows people to make decisions like how to have sex between consenting adults, what to do with your own body, etc.

But why do conservatives think liberty is guaranteed in the Constitution only sometimes? Because they have a political agenda.

Rights are in the Constitution, not the personal writings of progressive activists.

The right to an abortion is in the Constitution. The only way you could argue that it's not is if you counted the fetus as life and thus it would be depriving it of life. But that's a big stretch. (considering a fetus is not yet a U.S citizen) Otherwise, it's someone's personal decision that doesn't infringe on anybody else's rights. A.k.a LIBERTY.

 

The majority shouldn't be deciding whether or not a woman can have an abortion, just like the majority shouldn't be deciding whether a woman has an appendectomy.

 

"Should" has nothing to do with whether or not the government actually has the authority or not.

You can make a fairly thorough case for why the government shouldn't be able to execute prisoners, but that doesn't change whether the government actually was given (and has) that authority or not.

The courts aren't supposed to decide what the government should or shouldn't be able to do. They are supposed to determine whether the actions of the government do or do not fall within the authority granted to the government. The question of "should" is left to the people, through the legislature and the constitutions (both state and federal).

Kimball Kinnison

EDIT: "Should" and "shouldn't" are inherently moral statements. Judges are not tasked with making moral judgements, but legal ones. In a perfect world, morality and legality would perfectly coincide, but this is not a perfect world. A judges job is to determine legality, not morality.

 

Because separation of church and state doesn't exist (and this is coming from an atheist who hates Christianity)?

Huh? Sure doesn't suit my personal beliefs. I want a separation of church and state, but it's not in the Constitution. I'm not willing to force my personal beliefs on someone else through an unaccountable court, much like yourself.

I'll tell you what: you find the separation of church and state clause in the Constitution, and when you can't find it, explain how it should be written into it.

I didn't hear you say it was in the Constitution.

Look, it's nice that you think you're the voice of the conservative movement, but leave the conservatives to explaining their views on privacy. As you should be well aware of, I am a conservative. I do believe there is a right to privacy (just like EVERY conservative I know); I am just sensible enough to admit that it isn't protected by the Constitution, and until it is protected, I will not condone legislating morality from the bench under the false pretence that a right to privacy is guaranteed by the Constitution.

It would be a lot more clear if it actually used the words "right to privacy," now, wouldn't it? You know as well as I do there would be no controversy if the Constitution actually said something about "the right to privacy."

OK. And that pesky little word was guaranteed where? In the fifth amendment; and how is it guaranteed? It says that (and I'm paraphrasing) liberty shall not be infringed except with due process of law. Due process of law refers to what? I'm sure you can follow this to a logical conclusion (or not, but my fingers are getting tired).

But it's not guaranteed, is it?

No, because the Constitution, quite literally, says sometimes. [face_lol]

But I don't have the edition that includes its emanations and penumbras. What page is the right to abortion on again?

You liberals are so silly. Do you realize the amount of time and space it took you to explain that the right to privacy exists, where all I have to do to explain freedom of speech exists is to point to the place that says "freedom of speech." Hilarious.

 

Because separation of church and state doesn't exist

There is a mountain of evidence to the contrary, and a simple lack of "say-so" in the text of the Constitution itself has not held any weight in the legal interpretations of this argument for the past 100 years.

Peace,

V-03

 

Ah, but there is say-so in the Constitution, just not the depths that you would like, which is why you have to claim a phrase written by a President in a private letter has the same weight as the Constitution that was ratified by the democratic process.

 

Because separation of church and state doesn't exist (and this is coming from an atheist who hates Christianity)?

Yes it does. Hint: check the first amendment.

I didn't hear you say it was in the Constitution.

You don't think FREEDOM is guaranteed in the Constitution?

It would be a lot more clear if it actually used the words "right to privacy," now, wouldn't it? You know as well as I do there would be no controversy if the Constitution actually said something about "the right to privacy."

It doesn't need to.

The right to privacy is basic to freedom and liberty, which most certainly guaranteed under the Constitution.

Things do not need to be ?spelled out? in the Constitution like conservatives try to pretend. That?s their way of trying to get rid of basic civil liberties that are obviously protected.

OK. And that pesky little word was guaranteed where?

It is just a right that simply isn?t spelled out.

So let's review. The ninth amendment states that there are rights that aren't specifically included in the Bill of Rights. The introduction to the entire Constitution says liberty is a blessing that needs to be secured.

So yeah, I think we can safely say liberty (or more specifically, the right to privacy) is an constitutionally guaranteed right. You know, unless the preamble is just some silly little meaningless paragraph...

But I don't have the edition that includes its emanations and penumbras. What page is the right to abortion on again?

It's part of the right to privacy, which does exist.

Liberty (yes, that's right guaranteed under the Constitution) includes making private decisions like how to have sex, what to do with your own body, etc... If you disagree then you must be perfectly fine without outlawing reading books, because you know, it's not like people have personal liberty or anything.

You liberals are so silly. Do you realize the amount of time and space it took you to explain that the right to privacy exists, where all I have to do to explain freedom of speech exists is to point to the place that says "freedom of speech." Hilarious.

That's not hilarious, it's called reality. The 9th amendment specifically states that things (rights) don't have to be spelled out for you and shoved in your face to exist. You conservatives are so silly.

 

-Judges make moral decisions all the time. Judges inject humanity, common sense, and reason into their decisions. The very nature of the law requires this. I understand what you are trying to say, and I'm not trying to argue with your inherent point. Yes, judges cannot allow their personal morality to interfere with their legal responsibility, or to allow their personal feelings about a law colour their legal judgment.

But on the other hand, there are many cases in which judges do make moral judgments. THere are safegaurds in the law, in determining sentencing, evidenciary rulings, warrants, that require a person of extra ordinary legal skill to make moral judgments based on the law. Think about sentencing for example, there are extenuating circumstances in some cases that allow the judge to make a moral judgment as to the totality of the circumstances, in order to come up with a just sentence.

This is part of the reasoning behind common law, the legal tradition of our system. If making a ruling was as easy as looking at the law and applying the facts, being a judge would be a heck of a lot easier.

Now, the higher up you, the less the judges moral decision-making is allowed. THe trial judges have extraordinary lattitude, heck they can even throw out jury verdicts. That's why on appeal, certain issues of fact may not be re-litigated, only issues of law. Appellate judges cannot overrule a trial judges finding of fact, and is supposed to only be hearing legal arguments, much like what you have stated. But even appellate judges, by law, are allowed to overrule findings of fact to prevent a miscarriage of justice, but then the standared for making such a ruling is extremely high.

So to conclude, yes, KK has the right idea, but I just want to make sure everyone realizes that a judges moral compass has a place in, and is recognized by the law. However, in our system of justice, we have to promite the idea that the law is uniform, and we have to prevent judges from injecting their personal decisions above their legal duty. But with that legal duty, there is a place for personal morality.

 

The first amendment prohibits an establishment of religion.

Specific freedoms are guaranteed in the Constitution. Find the spot where it guarantees unabridged freedom please.

Well it sure felt the need to guarantee the hundreds of freedoms it explicitly protects.

Yes, they shall not be infringed without due process of law. We've been over this. Consquently, with due process of law, they can be infringed. There is no substantive content in the fifth or fourteenth amendments' due process clauses.

Then what's the point of the Constitution in the first place?

Really? How do we know freedom of speech exists?

How do we know freedom of press exists?

How do we know freedom of religion exists?

How do we know freedom of assembly exists?

How do we know freedom of petition exists?

The right to bear arms (speaking of which, how can liberals claim emanations and penumbras contain the right to kill unborn babies but an explicit "right to bear arms" doesn't count?)?

The right to not be forced to quarter troops?

The protection from unreasonable searches and seizures?

The right to a grand jury?

The protection from double jeapordy?

The freedom from self-incrimination?

The right to due process?

The right to confront and counsel?

The freedom from cruel and unusual punishment?

The freedom from excessive bail?

The freedom from slavery?

Our privileges and immunities?

Our equal protection?

Our freedom from discrimination?

Womens' right to vote?

The list goes on and on.

If any of these rights were infringed, how would you argue that they're guaranteed by the Constitution? That they can be found lurking in the Constitution's penumbra? No! You would point to the explicit text that guarantees those rights and privileges! You would be absolutely dumbfounded by someone's logic if they said the Constitution guarantees freedom of speech to the state and that freedom of speech is in no way guaranteed to the public. You would be confused if a state barred women to vote, and you would claim that the 19th amendment "spells it out" in plain text!

Imagine the reverse, a world where activists are fine with what the Constitution says, but not OK with what it doesn't say. So they pretend that the Constitution says other things (things that sometimes contradict what the Constitution actually says) so that, in their own little play-world, they can "legitimately" rule a country without the people's support at all. And when someone contradicts their view point, they say the other side is so strict, is so silly, and ask "how can you not see it?" much in the same way the tailors tricked the Emperor into walking naked through the streets.

Well if it's not in there how can it be a right?

Do you seriously think the preamble has legal bearing?

 

The first amendment prohibits an establishment of religion.

No....it prohibits the government from endorsing religion.

Specific freedoms are guaranteed in the Constitution.

Correct. The freedom to shoot somebody, for example, is not a protected freedom in the Constitution. Personal freedom, as long as it's not infringing on other people's freedom, is protected, though. This most certainly includes doing what you want in the prvrivacy of your own home, which again, only applies if you're not infringing on other people's freedom or rights.

Yes, they shall not be infringed without due process of law. We've been over this. Consquently, with due process of law, they can be infringed. There is no substantive content in the fifth or fourteenth amendments' due process clauses.

Due process of law is about specific arrests (and going to court), not outlawing certain things.

If any of these rights were infringed, how would you argue that they're guaranteed by the Constitution? That they can be found lurking in the Constitution's penumbra? No! You would point to the explicit text that guarantees those rights and privileges!

Just what the hell do you think the 9th amendment means if it doesn't protect rights that can't be pointed out with explicit text, or "lurking in the penumbras"? You're completely ignoring that the amendment flat-out says that explicit text is not required for every right.

Well if it's not in there how can it be a right?

I didn't say it wasn't in there, just that it's not spelled-out for you.

Do you seriously think the preamble has legal bearing?

It does in the sense that you can tell that liberty is one of the greatest principles this country has, so when you look to the 9th amendment to see what the "non-enumerated" rights are, we can look under one of the most important concepts in our nations' history, also found in the preamble of the Constitution.

You'd have to be butt blind to think that personal liberty was not highly valued by our founding fathers.

So we move from an irrelevant preamble that mentions the many blessings of liberty (not unbridled liberty), to saying that the irrelevant preamble is saying all liberty needs to be secured, to saying the irrelevant preamble suddenly having legal bearing, to saying the unbridled liberty should also include a right to privacy, and that the right to privacy expands to a right to have an abortion in a public place. Wow. So did the Founding Fathers mean the Constitution to be a riddle?

That's called critical thinking, not solving a riddle. And I never said all liberty was secured, but it's secured enough to infer that outlawing butt sex is unconstutional.

It would have been so much easier if the Founding Fathers didn't construct the preamble to lead us a through a wild Constitutional goose chase in order for us to find one of our inalienable rights.

You don't need to go on a "wild goose chase" to see that. A. the 9th amendment guarentees rights that aren't explicitly stated and b. personal liberty is one of our most cherished ideals.

How hard is it to draw the conclusion that a right to privacy exists from that? You do the math. It doesn't require a wild goose chase.

Well I know we have the freedom of the press, so that's an invalid argument. Got anything else?

Wrong. It's different. Reading the books is different from publishing and selling those books, which is what freedom of press entails.

So with your interpretation of the Constitution, the government can't stop you from publishing or buying any books, but they can certianly ban you from actually reading them. Because remember, absolutely no personal liberty is guarenteed in the Constitution unless it is explicitely stated. And the freedom of press doesn't include actually reading the books.

In fact, while I'm at it, I'm going to outlaw sleeping! Becauser remember, no explicit text in the Constitution guarentees the right to sleep.

Right, they exist, but it do

 

Ah, but there is say-so in the Constitution, just not the depths that you would like, which is why you have to claim a phrase written by a President in a private letter has the same weight as the Constitution that was ratified by the democratic process.

Uh-huh. Kind of like the president today who wants his own intent when signing a law into practice to count as much as the democratically-elected legislators who wrote it .

Peace,

V-03

 

Kimball, you believe that only powers explicitly granted by the constitution are valid powers of the federal government. Awhile back you made the claim that you could demonstrate how a state constitution gives the right of a state to regulate abortion. We suggested you try with PA.

Can you back up this claim? Where does the government get the actual authority to regulate abortion?

 

SHREDDER
No....it prohibits the government from endorsing religion.

No, establishment of religion: i.e.,The Church of England. The english colonists who settled here were largely comprised of sectarian and congregational christian faiths fleeing the state persecution of their religion.

 

It depends on how you interpret it. Thomas Jefferson, one of our greatest founding fathers, interpreted it to mean that there was a complete separation of church and state, and the government could not endorse any religion.

So who's interpretation is more significant, yours or Thomas Jefferson's?

 

More importantly, over a century-and-a-half of judicial and legislative intent at both the state and federal level have establised a separation.

Common law is the basis for the american legal system, and as such, separation has been a controlling principle for a very long time.

There is no simple "going back", as some would like to believe.

Peace,

V-03

 

Shredder, No, the FRAMERS of the Constitution outweigh whatever Jefferson may(or may not have) thought. Re-read the document. There's a clear distinction between endorsement via the state and establishing an official state religion. The government endorses religions all the time by granting them special statuses(like non-taxable orgs for example).



Vaderize, one thing liberalism has made clear is that nothing is set in stone........so would you preclude your own philosophy?

If the constitution is "open to interpretation" as you state, then that would include reinterpreting and rejecting liberal rulings of the last 50 years by an ascendant center-right Supreme Court.

Expect to see that conservative "interpretation" over the next generation.

 

John Paul Stevens has been enormously influential on the court and has helped keep some of the more adventurous conservative decisions in check. He also apparently did an extremely solid job of leading the court during Rehnquist's illness and during the transition to a new chief justice. But he's 85 years old. So we have to say with some confidence that he's probably next to go. Supposedly he's in good health, but if he croaks before George Bush leaves office then even the Supreme Court's dissenting opinions are going to be arch conservative.

 

Right now we seemingly will have 4 solid conservatives in place. You can see how the next appointment could be the true tipping point. I don't think we're there yet. And if it is Stephens, and he's replaced by even a less conservative stalwart in the vein of Kennedy, the court would still tip center-right at that point.

Stephens and Ginsberg are the two true liberals of the court.