Open Thread WE 29 JUN 22 ~ in justice


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The Supreme Court is now firmly in the hands of radicals, eager to throw stare decisis out the window. They are part of the anti-democracy movement now threatening America.

-- Robert Reich

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Welcome to today's open thread. I'm focusing on the supremely political nature of the loftiest gang of judicial puppets in the US. In civics, we were indoctrinated with the idea of some type of 'balance of power' within the federal government with 3 branches somehow independent of each other.

It seems this has not worked out so well. Especially after the imaginative 'corporations are people' decision. Money buys justice, legislation and executive policies. Not much balance there

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stare decisis

Latin for “to stand by things decided.” It’s the doctrine of judicial precedent. If a court has already ruled on an issue (say, on reproductive rights or gay marriage), future courts should decide similar cases the same way. The Supreme Court can change its mind and rule differently than before, but it needs good reasons to do so, and it helps if the justice’s opinion is unanimous or nearly so. Otherwise, the rulings appear (and are) arbitrary — even, shall we say? — political.

-- Robert Reich

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-- Supreme Court shields police from being sued for ignoring Miranda warnings
-- Supreme Court bolsters gun owners’ right to carry a weapon in public
-- Supreme Court rules for parents seeking state aid for religious schools ..
Justice Sonia Sotomayor argued the court “continues to dismantle the wall of separation between church and state that the Framers fought to build.”
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-- Supreme Court limits California labor law that allows private suits against employers
-- Supreme Court shields Border Patrol agents from lawsuits over excessive force=
-- Supreme Court rejects bond hearings for immigrants facing deportation
The recent Supreme Court rulings on immigration matters have seemingly provided further protection for the government and its agents but have minimized rights for non-citizens and citizens alike.
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-- Supreme Court rules for Ted Cruz, strikes down limit on post-election gifts to winners
-- Supreme Court blocks Texas law to shield conservatives against alleged censorship on Facebook and Twitter
-- The Court reversed and remanded the Fifth Circuit Court of Appeals. The Court held that the U.S. Constitution does not confer a right to abortion; Roe v. Wade and Casey v. Planned Parenthood of Southeastern Pa are overruled; and the authority to regulate abortion rests with the states.
-- US Supreme Court reaches unanimous decision in Washington worker’s compensation case: striking down an earlier ruling by a lower court to protect workers sickened by nuclear contamination

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This does not resemble anything like constitutional law.

Tenth Amendment of the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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“[t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals."

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As always, feel free to chime-in with whatever rings your bells ..

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Credits ~
https://robertreich.substack.com/p/the-shame-of-the-supreme-court
https://www.law.cornell.edu/constitution-conan/amendment-10/tenth-amendm...

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QMS's picture

-- On June 29, 1995, the American space shuttle Atlantis docks with the Russian space station Mir to form the largest man-made satellite ever to orbit the Earth
-- 512 A solar eclipse is recorded by a monastic chronicler in Ireland
-- 1659 The Russians, led by Prince Trubetskoy are defeated by the Ukrainian armies of Ivan Vyhovsky in the Battle of Konotop
-- 1932 USSR & China sign non-aggression treaty
-- 1956 US Federal interstate highway system act signed
-- 1964 Civil Rights Act of 1964 passes after an 83-day filibuster in the US Senate
-- 1972 Supreme Court rules (5-4) that death penalty is cruel & unusual
-- 1977 Supreme Court rules out death penalty for rapists of adults
-- 2006 Hamdan v. Rumsfeld: The U.S. Supreme Court rules that President George W. Bush's plan to try Guantanamo Bay detainees in military tribunals violates U.S. and international law.
-- 2009 Financier Bernie Madoff sentenced to 150 years in US maximum prison, for conducting a massive Ponzi scheme
-- 2020 US Supreme Court rules 5-4 that abortion restrictions in Louisiana unconstitutional, striking down a 2014 state law

Ruth Bader Ginsburg RBG Action Figure
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QMS's picture

that lower court said likely violates Voting Rights Act.

In a brief order, the court said that it would wait to act on the merits of the case until it has decided a similar dispute out of Alabama that is set to be argued next term. The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.

https://edition.cnn.com/2022/06/28/politics/louisiana-congressional-map-...

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Lookout's picture

persecutes the poor and enriches the wealthy as it was designed to do.

Congress has the power to pass laws, but refuses to do so along with their refusal exercise its power to end the endless wars. We just have to face up to the fact the US gov't (all 3 branches) is totally purchased, owned, and controlled by the global corporate oligarchy.

Better prepare accordingly IMO.

Ironically I felt like it was a bargain yesterday to buy gas for $3.85.

Thanks for the OT!

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“Until justice rolls down like water and righteousness like a mighty stream.”

QMS's picture

@Lookout

is challenging for free thinkers. Perhaps it is better to realize there are better options available
in the world. This article from Pepe Escobar is indicative of an alternative global vision.
It pits BRICS vs. G7 objectives. Called Behind the Tin Curtain.

It would be futile to expect from the astonishing collection of mediocrities “united” in Bavaria, under de facto leader of the European Commission (EC), Fuehrer Ursula von der Leyen, any substantial analysis about the breakdown of global supply chains and the reasons that forced Moscow to reduce gas flows to Europe. Instead, they blamed Putin and Xi.

https://thesaker.is/behind-the-tin-curtain-brics-vs-nato-g7/

Lost a big tree in the woods, got lucky it missed the barn. Held up by a small maple now.
Heading out to do some creative chainsaw surgery.

Enjoy the day!

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Lookout's picture

@QMS
Thanks for the saker link. Be careful with you creative chainsaw work!

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“Until justice rolls down like water and righteousness like a mighty stream.”

snoopydawg's picture

@Lookout

Cuz only Russia has oligarchs silly.

Again the rich have representation without taxation and we the little people have taxation without representation.

What the Supreme Court is doing now has the full blessings of democrats or they would have used legal procedures available to them to keep the extremes off the court. Every judge that was appointed during Bush and Trump had the blessing of the democrat in the state they were from because both sides have to agree to let them get nominated. And let’s not forget how many times Schumer let McConnell fast track his judges. I’ve been predicting that the courts would start rolling back lots of the good legislation passed that helped we the people and that’s what we are seeing.

Congress has allowed Amazon and other corporations to deny labor rights and worker’s compensation was put in place so people couldn’t sue their employers, but that has been whittled down for decades. Now if you get hurt at work you have to see a company doctor who more often than not will say that nothing is wrong and you go back to work. The system is so corrupt that most times now you have to get an attorney just to get acknowledgment that you have been injured and need treatment. I fought my case for 5 years after I got injured and every time the judge ruled in my favor the insurance company would still deny treatment and back to court I went. But I wasn’t involved in the decision. Workers have to wait in cramped rooms for hours while attorneys hammer things out and take it before the judge. Good luck if you are in pain sitting in uncomfortable chairs that make it worse. Oops…went on a rant, but that ruling has pissed me off!

Good OT, Q

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It is not until the tide goes out that you discover who has been swimming naked.

Maybe 40 years ago we could isolate the outrages. Today it's impossible, only the biggest and most recent on any given day get attention, then on to the next. The supreme court will remake America into something twisted and misshapen and soon there will be few who will remember when it was different and better.

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Stare Decisis?

Reich glides right past the money shot on this hallowed rule of law -- "The Supreme Court can change its mind and rule differently than before, but it needs good reasons to do so, and it helps if the justice’s opinion is unanimous or nearly so."

I have no quarrel with his substantive opinions on how the Supreme Court should decide Constitutional Law cases that come before it. But yet another hair-on-fire screed on the awfulness of Republicanism without even a hint of what to do about it, other than voting for Democrats, is disingenuous and bereft of substance. Yup, Right Wing Bullshit sucks.

My last vote in a Presidential Election was in 2012 when I voted for Barack Obama for exactly one reason -- to keep Mittens Romney from appointing judges. My side won the election but lost the Courts any way. Go figure.

About stare decisis, Reich asserts that the Radical Republican appointed justices have blown up this venerable doctrine. Uh, that was the exact complaint against the Warren Court when it overturned all of the jurisprudence of the Due Process Clause of the 14th Amendment.

The Lochner Era
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The Lochner era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies".[1] The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.[2][3] The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.[4]

The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role".[5] The Court sometimes invalidated state and federal legislation that inhibited business or otherwise limited the free market, including minimum wage laws, federal (but not state) child labor laws, regulations of banking, insurance and transportation industries.[5] The Lochner era ended when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress's regulatory efforts in the New Deal.

Since the 1930s, Lochner has been widely discredited as a product of a "bygone era" in legal history.[1] Robert Bork called Lochner "the symbol, indeed the quintessence, of judicial usurpation of power".[6] In his confirmation hearings to become Chief Justice, John Roberts said: "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." He added that the Lochner court substituted its own judgment for the legislature's findings.

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My own favorite Supreme Court Decision was rendered in 1810 to resolve a dispute about a Georgia State Legislative enactment that granted the land called Yazoo to a group pf speculators -- Fletcher v. Peck. When I studied this case in law school almost half a century ago, the law professors chortled at the intellectual gymnastics that the early Supreme Court performed in order to rule against the argument that wall to wall bribery of the Georgia Legislature should nullify the State Issued land grant for the Yazoo -- a parcel of land known today as Alabama and Mississippi.

The citizens of Georgia voted every single member of the Legislature out of office in the next election and the newly empowered tribunes of the people passed a law to renege on that crooked deal.

The Supreme Court said, "Nerts!" The business interest of enforceable contracts prevails and the bribery is irrelevant to the case. The buyers are entitled to get what they paid for. (Slight snark added on that last point.)

As a predictable side bar, a collateral issue in the case was whether the native inhabitants of Alabama and Mississippi had anything to say about who owned the dirt under their feet. I'll leave it to C99 members to guess how that turned out.

Everybody of course has heard of the Dred Scot decision.
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From the earliest days of the Republic, the Supreme Court has been a political institution and there is no way to avoid that. Double talk is the usual means of pretending to abstract political considerations from the Court's impartial enforcement of the law and the Constitution. You can't hardly argue that your party needs to win elections to "protect Roe v. Wade" and then claim that you do not think the Court is political. No the argument is to prevent the Other Side from usurping the integrity of The Law with political bullshit.

And, ahem, all the arguments about judicial legislation actually apply right on the Nose of Roe v Wade. You might be able to deduce a Right of Privacy from the text of the constitution, but you will not find the word, "trimester," anywhere in the Constitution. Just like another great Warren Court policy making case, Miranda, the "remedy" ordered is a little statute spelling out the wording of the famous warning that you see in every cop movie or TV show since the sixties.

Personally, I do not have a problem with the politicization of the Court, just as I have no problem with the idea of death and taxes. No avoiding it, period. Nor does it bother me that the Warren Court departed from the judicial tradition of just deciding the case before them and instead imposing binding new regulations of public officials. That is legislation.

My only point with all of this is that getting indignant about the Supreme Court making political decisions is both hypocritical and bad politics. The best argument on the politics of this is that the Dems never tried to pass legislation to protect the rights that were literally created by the Warren Court.

I'm giad that Warren and Douglas and the rest of them used their power for small d democratic goals. But there is no reason to assume that the Supreme Court decisions are some sort of Holy Writ, unsullied by politics.

It is a political institution and it has to be.

FDR's biggest political setback came with his Pack the Court idea. He was right and the people were wrong to oppose him. But the Idea of Impartial Law is pretty much a necessity for civilization And people get irrationally torqued about the idea of "political" decisions -- unless, of course, the decision was in your favor.

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I cried when I wrote this song. Sue me if I play too long.

@fire with fire about the Lochner era, but were those justices selected on their association with a private society, and that society have an agenda in place that mirrored a political parties list of priorities?

I am not trying to argue with anything you stated, but I think this court is primed to take on cases that in the past would be described as forced on them. I think they would welcome a whole slew of cases, (the essential conservative laundry list) and will get them. If they don't see the case they want to decide on, they'll encourage the party to come back with a case that will encompass a much broader ruling. Opposing parties will avoid bringing cases to the court for fear of near certain loss, and those sweeping rulings wiping out much more than the case loss in question would.

I hope I'm wrong, but I fear the court and government will essentially be one entity with the ability to rule any way it wants, any settled law be damned.

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@Snode
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Thanks for a thoughtful reply.
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Social Darwinism and the Law

Around 1890, the U.S. Supreme began aggressively backing laissez-faire capitalism. Supreme Court Justice Stephen J. Field asserted that the Declaration of Independence guaranteed "the right to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others . . . ."

The Supreme Court ruled as unconstitutional many state laws that attempted to regulate such things as working conditions, minimum wages for women, and child labor. The courts usually based their decisions on the Fifth and 14th amendments to the Constitution. These amendments prohibited the federal and state governments from depriving persons of "life, liberty, or property, without due process of law." (The Supreme Court interpreted "persons" as including corporations.)

In 1905, the U.S. Supreme Court used the "due process" reasoning to strike down a New York health law that limited the workweek of bakers to 60 hours. The majority of the justices held that this law violated the 14th Amendment's "liberty" right of employers and workers to enter into labor contracts. In a famous dissent, however, Justice Oliver Wendell Holmes criticized the majority decision. In a memorable phrase, he said: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics [one of Spencer's books on Social Darwinism]." [Lochner v. New York, 1905]

In 1890, reformers got Congress to pass the Sherman Antitrust Act. This law focused on "combinations" like monopolies (also called trusts). It banned them if they interfered with interstate commerce by eliminating competition and keeping the prices of goods high. When cases reached the Supreme Court, however, the justices largely ignored the control of consumer prices by monopolies. Instead, the justices focused on the behavior of "bad trusts" that used unfair tactics against competitors.

The Supreme Court limited the protest rights of labor unions in a 1911 case that outlawed some economic boycotts. The Supreme Court continued to make decisions that weakened unions until the 1930s.

Despite a hostile Supreme Court, Progressive Era reformers became increasingly successful in curbing the abuses of laissez-faire capitalism. For example, in 1906, Congress passed the Pure Food and Drug Act that prohibited companies from selling contaminated foods and misbranded drugs.

By 1912, both the federal government and many states had adopted Progressive reform legislation aimed at ending child labor and improving working conditions. That year saw three major candidates for president, all espousing Progressive ideas (Democrat Woodrow Wilson, Republican Howard Taft, and Progressive Theodore Roosevelt, who had broken from the Republicans because he believed Taft was not progressive enough). The idea of passing more laws to correct society's ills had replaced the Social Darwinist view that civilization best advanced when the "fittest" had their way while the "unfit" were allowed to die out. Americans had increasingly come to believe that society could choose its future, which might require government regulations on private enterprise.

In England, Herbert Spencer grew increasingly pessimistic as he witnessed a swelling tide of legislation that attempted to end the evils of industrialization and laissez-faire capitalism. Spencer died in 1903, and was buried in the same London cemetery as that great enemy of capitalism, Karl Marx.

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I agree that this is lamentable, but in my opinion, the most important FACT to face is that Money Power and Oppression are the historical norm. The New Deal and the life track of us Baby Boomers is the exception.

Instead of indignation about how we are being sold out or let down by specific weak politicians, we should look at what the various resistance movements did from the end of Reconstruction until the New Deal. Populists, progressives, socialists, anarchists, communists, Wobblies, Civil Rights and Women's Rights activists all took the Malefactors of Great Wealth head on.

My grandfather fought scabs and security goons on the picket line from 1935 through 1937. He was one of tens of millions of people who had never known a middle class life in the first place, but got on their feet and fought back against the philosophy of Survival of the Fittest.

We will never vote that philosophy out of power. But we can fight it effectively, because it is so fucking absurd.

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I believe along with Gandhi and King that non-violent resistance is more effective than war. The movie version of the Mahatma put it this way: "I will not hurt you. But that does not mean that I will not fight you."

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I cried when I wrote this song. Sue me if I play too long.

@fire with fire much there I sort of remember, but can't see a solution to todays situation. You are right, pissing about the dems we have and their patrons won't get us anywhere. I have a hard time seeing how to fight this. We had a pandemic, and an economic collapse and still the wealthy and powerful prosper. There's so many conservative campaign promises waiting to be implemented against us.

I can see Social Security and Medicare and a slew of social programs being struck down as unconstitutional by this court by establishing new precedents and then later expanding on their own precedents. Name anything and it'll be on the table. Do we fight back in the streets, against military grade weapons? Do we stop buying stuff in the hope corporate profits suffer? How do we rely on unions, when some of the most powerful lean right? (like the police). How do we band together in a meaningful way?

This deck seems stacked so high it would take the worlds biggest chainsaw to cut it.

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lotlizard's picture

@fire with fire  
to me ever since I heard about FDR, Executive Order 9066, and Korematsu v. United States as a schoolkid.

Sending people to concentration camps based on their ancestry alone seemed so clearly unconstitutional to me — especially so during a war sold to the masses as trying to rid the world of the evil of going after people based on their ancestry alone.

If I could see it, why couldn’t the grown-ups? Should we in Hawai‘i even want to become a state? Join a country that, when you get right down to it, didn’t really like us “Orientals” (folks of East Asian ancestry) very much and didn’t trust us?

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enhydra lutris's picture

of course, myth. Somewhere I once analyzed the history of the right to vote. By looking back at the beginning we can readily see.that it was an oligarchy.

Ye Legislature

Senators are chosen by the state legislatures. Representatives are chosen by "the people" and the electors in each state shall have the same qualifications as the most numerous branch of the state legislatures. Pretty much invariably free male (aka white) property owners pick state legislatures, and representatives while the state legislators pick the senate. Women, Slaves and Indians have no voice in government.

Ye executorive

Each state appoints in whatever manner the state legislature directs a number of electors equal to number of its federal senators plus number of its federal representatives. These electors meet and vote for 2 people each. Top vote getter is presnit and numbah two is vice. So those selected by white male property owners pick a method for picking electors who pick executive. The presnit may appoint, with consent of the Senate, ye jedgers.

Ye judgers

Ye judgers shall be the Supremes and such inferior types as Congress shall create. Judgers are appointed by presnit with Senate advice and consent.

So, turtles white male property owners all the way down (down, down, down, down; downbeedoobie, wah wah wah wah wah ah)

The only balance I see is IMbalance.

be well and have a good one

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That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

usefewersyllables's picture

the conservative wet dream philosophy/policy of "I Got Mine So Fuck You" is now codified into settled law.

Hope that doesn't cause any inconvenience....

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Twice bitten, permanently shy.

how pathetically weak current D leadership has been on the abortion issue in recent times. From Obama going from making codifying Roe his "top priority" in the campaign to making it "not really" his top priority shortly after taking office, to Nancy Pelosi's embarrassing reading of an Israeli poem as her response to the Dobbs decision. Vague poetry is no substitute for bold prose action. Note too that Biden still is refusing to back a filibuster reform or carve out for bills on reproductive rights, this being the key to producing a bill on abortion rights. This piece speaks for me on Ds fecklessness, and don't forget to click on the YT link therein. https://slate.com/news-and-politics/2022/06/why-olivia-rodrigo-celebs-ab...

Going forward, here's one interesting proposed solution that I've come across: the Article III solution. Art III sect 2 cl 2 of the constitution: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Idea: congress finally cobbles together enough senate Ds (via election and filibuster reform) to support codifying Roe or similar into law making it the nationwide law of the land. The bill contains a clause specifying that per Art III, this law and any law dealing with personal reproductive rights shall not be reviewable by any federal court.

It's called Jurisdiction Stripping. Seems rather straightforward that it's clearly in Congress's power to delineate the types of cases fed courts, including Scotus, can hear. It has the virtues of being constitutional, with no need of a constitutional amendment, and would be far less controversial than court packing.

Other possible ideas: Court term limits. 12-18 yrs on the Court. After which they go to Senior status on one of the lower federal courts until their number is finally called.

Federal land: use available fed land in an anti-abortion state where health clinics could be built to provide abortion services.

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@wokkamile @wokkamile prefers the Court Packing (or "Judicial Enhancement" as I would call it) approach, adding as many as 4 new justices to the Court, or 13 total, after Dem gains in the senate this fall. He's got tremendous clout with D.C. Dems, so his proposal is worth taking seriously. I'm in favor of whichever court reform proposal seems to be getting the most support.

Tiny Denmark has 18 judges (plus one Court president) on its highest court. All appointed by the Justice Minister upon recommendation of an independent board of judges. All high court judges face mandatory retirement when they reach age 70. Close to my ideal system in existence.

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usefewersyllables's picture

@wokkamile

That assumes facts not in evidence. I think that our thought exercises might be better based on the concept of perpetual republican rule, because this handbasket of ours is heading there toot sweet.

All the repubs need to do to seal that deal is to claim to want peace. We will all know that they are lying, but at least they won’t have been the ones who lied to us the most recently….

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Twice bitten, permanently shy.

@usefewersyllables my buddy Larry and I are assuming FNIE. HIs tweet, from which I paraphrased from memory, can easily be read as a conditional: IF Dems win enough senate seats in Nov. His tweet:

He and I are well aware this is the condition precedent for any major Dem action on judicial or filibuster reform. Manchin and Cinéma still stand in the way.

On the rest, I doubt it. Even Ds will tolerate just so much. There wouldn't be a country left for the Rs to perpetually rule.

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Is that the guy who just penned and Op ed suggesting Liz Cheney for President? Liz, who voted with Trump 97% of the time and is staunchly pro life?
I guess that would be better than Biden who put C Thomas on the court and has publicly stated that R v W "goes too far".

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QMS's picture

@wouldsman

it goes with the territory
at least we can still vent

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@wouldsman defense, RBG also thought Roe went too far, and too fast, and that the case hinged on the wrong legal argument -- right to privacy -- instead of gender equality, which she found would better withstand attack. A few other liberal legal experts of the time also said similar.

If memory serves, when Roe was decided in 1973, liberal luminaries like Ted Kennedy and Jesse Jackson were against abortion, so Biden's stance, as a moderate D, wasn't all that unusual.

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When the Democrats ran a segregationist for the senate in 1972 (using the "forced bussing"
dog whistle) in Delaware who stood up and said "Hell no"?
When the same racist bastard ran for reelection in the 80s and called for cutting Social Security who stood up?
The crime bill?
"Welfare as we know it"?
The Iraq war?
The Patriot Act?
The vice Presidency?
When the Quisling Democratic Party rigged the primary so that they could run a kill crazy lovecraftian horror in 2016 who stood up?
When they rigged the primary again in 2020?
To force us to elect a corrupt, obviously senile, racist warmonger?
Victim blaming? But who allowed the Quislings to get so bad?

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On to Biden since 1973

It sure ain't voting Blue No Matter Who. We've had Durdling Dems 20 of the last 32 years.

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