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Thread: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by Kepler View Post
    There some truth to this (which I find surprising). Roe was badly reasoned -- the right should never have been privacy between doctor and patient, but 14th amendment equal protection for the woman. Liberal scholars have agreed on this practically since the ink was still wet on the decision.
    Kep, I don't believe the decision was founded upon a right of privacy between doctor and patient. It was founded upon a zone of privacy each person has against government intrusion. That is a simplistic description but a fair one, I think.

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Writing in The New York Times, former Obama official [Former Acting Solicitor General Neal Katyal] says that if the Senate confirms anyone for the seat, Gorsuch “should be at the top of the list.” Though they’re on opposite political sides, Katyal says Gorsuch “brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” Moreover, “Gorsuch would help to restore confidence in the rule of law” and “not compromise principle to favor the president who appointed him.”
    https://www.nytimes.com/2017/01/31/o...such.html?_r=0
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Editorials like this are why liberals always lose.
    Originally Posted by dropthatpuck-Scooby's a lost cause.
    Originally Posted by First Time, Long Time-Always knew you were nothing but a troll.

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by Kepler View Post
    the protection of the rights of our citizens is more important than politics.
    ah, but then who defines what our "rights" are then?

    We have a Bill of Rights in the Constitution, one of which explicitly says, "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." That one seems to have been misplaced lately, though

    Anyway, there is no "right" to anything tangible: no "right" to be fed, no "right" to be housed, etc. in the Constitution. In fact, we explicitly have an amendment that forbids these things being "rights" ("Congress shall make no law respecting an establishment of religion"): I think any decent person would agree that we have a moral duty to feed the hungry, clothe the naked, house the homeless: there is no debate about that at all. What is debatable would be whether the government, by doing so, would be "establishing a religion": the moral duty is that of the person doing the providing, and is not a "right" of the person receiving the assistance.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by ScoobyDoo View Post
    Editorials like this are why liberals always lose.

    and here I thought, several posts back, you were saying liberals eventually always win as justices become more liberal as they age....
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by FreshFish View Post
    and here I thought, several posts back, you were saying liberals eventually always win as justices become more liberal as they age....
    Said no such thing. Read it again.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by burd View Post
    Kep, I don't believe the decision was founded upon a right of privacy between doctor and patient. It was founded upon a zone of privacy each person has against government intrusion. That is a simplistic description but a fair one, I think.
    Nope.

    The Court added that the primary right being preserved in the Roe decision was that of the physician to practice medicine freely absent a compelling state interest – not women's rights in general
    I think you are thinking of the "penumbra" language that makes "Originalists" have a sad. There is certainly a backdrop right of privacy which underpins all other rights, and Roe does allude to that. But one of the weaknesses of the decision is they went for the Due Process clause instead of the Equal Protection clause. The former lends itself to the kind of dirty tricks the Jesusland states have been using to screw women. The latter would still have been under attack by the nutbars, but it wouldn't have been as vulnerable.
    Last edited by Kepler; 02-01-2017 at 04:01 PM.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by burd View Post
    Kep, I don't believe the decision was founded upon a right of privacy between doctor and patient. It was founded upon a zone of privacy each person has against government intrusion. That is a simplistic description but a fair one, I think.
    Even that kind of reasoning is problematic: is an infant still in the womb a "person" or not? does s/he have a right not to have their brains sucked out by a vacuum cleaner inserted at the base of the skull, even if s/he is technically still inside the womb?

    The problem here is that there are two different parties who each have a right: the woman has a right to control over her own body, and the unborn infant has a right to life ("equal protection under the law"). That's why the general consensus seems to be that the former right ends when the latter right begins, whenever the fetus transitions from "it" to a person. Right now that standard is the third trimester.

    When two different parties each have a conflicting right, then generally (not always) the problem becomes political, not judicial.

    As Gorsuch said, "any judge who is happy with every decision he's ever made isn't doing a very good job." There are conflicts all the time that need to be decided on the law, even if the law should eventually be revised. We have procedures in place to revise laws which people don't like any longer. Those procedures generally do not include having judges re-write them on the fly.


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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by Kepler View Post
    Nope.



    I think you are thinking of the "penumbra" language that makes "Originalists" have a sad. There is certainly a backdrop right of privacy which underpins all other rights, and Roe does allude to that. But one of the weaknesses of the decision is they went for the Due Process clause instead of the Equal Protection clause. The former lends itself to the kind of dirty tricks the Jesusland states have been using to screw women. The latter would still have been under attack by the nutbars, but it wouldn't have been as vulnerable.
    I stand corrected. Have to read the decision tonight.

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by burd View Post
    I stand corrected. Have to read the decision tonight.
    If I'm substantively wrong unofan will tear me a new brief.

    But hey, 6 weeks in law school gives me supremacy over 99% of the board.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by Kepler View Post
    If I'm substantively wrong unofan will tear me a new brief.

    But hey, 6 weeks in law school gives me supremacy over 99% of the board.
    I took a few minutes to read but not study the opinion. I still tend to think the fundamental right of privacy which brings the balancing test of competing interests into play is the woman's right to decide whether or not to terminate her pregnancy. It looks as if Wikipedia drew from the Court's Summary in section VI, which does acknowledge the important role of the treating physician and supports your view:

    XI

    To summarize and to repeat:

    1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

    (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

    (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.


    As I said, a quick read. And as you said, unofan will set us (me) straight. Flaggy will cite infowars for his position that the decision was the result of a conspiracy headed by Mayo, and Fish will . . . who knows?

    Good stuff, at any rate. The deliberations must have been interesting on this one.

    Unofan is really Lawrence Tribe, btw
    Last edited by burd; 02-01-2017 at 05:57 PM.

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    I read somewhere the other day that, technically, Roe v Wade has been completely superseded by Casey v Planned Parenthood anyway. Forget the details right now.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    At this point as a Dem, maybe you have to bite your tongue and take Gorsuch. Every day (and tweet) is crazier than the next.
    Go Gophers!

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by 5mn_Major View Post
    At this point as a Dem, maybe you have to bite your tongue and take Gorsuch.
    I recommended this from the start. Gorsuch is Scalia II but elections have consequences and the GOP has every right to put him on the Court. They are going to get away with the stolen seat, and they've set a terrible precedent, but that isn't on Gorsuch and, more to the point, there's nothing we can do to stop them.

    It means our next Dem nominee will have to be significantly farther left and more activist to counter him, of course.

    The GOP has weaponized the Supreme Court. It only remains to see how that will play out. It's entirely possible they will rue the day they pis-sed on Obama's olive branch.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    At least Gorsuch is qualified for the job, even if you don't care for his interpretations of the law. Trump could've gone completely off the map.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by FadeToBlack&Gold View Post
    At least Gorsuch is qualified for the job, even if you don't care for his interpretations of the law. Trump could've gone completely off the map.
    It could have been Bannon. I mean, unless David Duke was available.
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by Kepler View Post
    It could have been Bannon. I mean, unless David Duke was available.
    Or the the legal lackey processing all of his foreclosures and evictions. He wouldn't be able to recite the language of the First Amendment, but he would know "This is an attempt to collect a debt . . . . "
    Last edited by burd; 02-09-2017 at 10:33 AM.

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by burd View Post
    Or the the legal lackey processing all of his foreclosures and evictions.
    I'm surprised his "doctor" isn't Surgeon General.

    Um, he isn't, is he?
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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Quote Originally Posted by FadeToBlack&Gold View Post
    At least Gorsuch is qualified for the job, even if you don't care for his interpretations of the law. Trump could've gone completely off the map.
    That's the point. IMO getting Roberts out a Bush nomination is a marginal victory.
    Go Gophers!

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    Re: Power of the SCOTUS IX: The outlook wasn’t brilliant for the SCOTUS nine that day

    Still blocking it, Chuckles?
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    Quote Originally Posted by Rover View Post
    I'm not happy about it either, but Flag is correct (cue the Twilight Zone music!).
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