Is it time to restore the Supreme Court to legitimacy?

Yes, that was the point.

All you can do is push back every time you see words used incorrectly. Sometimes, the idiots win and literally becomes a synonym of figuratively. I don't know why you would want to intentionally participate in such degradation of language, but do you I guess.

 

Jon Stewart: Supreme Court is ‘the Fox News of justice’

https://thehill.com/blogs/in-the-know/3543836-jon-stewart-supreme-court-is-the-fox-news-of-justice/

 

https://www.wsj.com/articles/a-supr...ligious-liberty-11656711597?mod=hp_opin_pos_1

A Court for the Constitution
The historic Supreme Court term that ended this week was a triumph for originalism.
By The Editorial Board
July 1, 2022 6:45 pm ET

A funny thing happened on the way to the supposedly partisan Supreme Court finishing its term: It ruled for the Biden Administration on immigration. Somehow that case isn’t making the dastardly hit list of those eager to declare that the Court is now “illegitimate,” but the Justices applied the law regardless of the policy and decided for the executive branch.(See nearby for elaboration.)

***
This isn’t a partisan Court looking for preferred policy outcomes. It’s a Court that hews to the tenets of originalism, with different shades of emphasis by different Justices. The Court’s jurisprudence is focused more than anything else on who under the Constitution gets to decide policy, not what that policy should be.

This is the main reason Democrats and the press corps are furious about the Court’s decisions. For decades they have counted on a majority of Justices to deliver or bless the policy results they want: on abortion, voting rights, healthcare, racial preferences, climate and economic regulation. You name it, the Court found ways to deliver it with balancing tests, trimester analysis, and the discovery of unenumerated rights between the lines of the Constitution’s text.

For decades conservative critics have argued that the role of the Court should be different—supporting rights that are actually in the Constitution, but otherwise enforcing the separation of powers so each branch of government stays in its lane as defined by the Founders. With the arrival of three new Justices nominated by Donald Trump and shepherded to confirmation by GOP Senate leader Mitch McConnell, that Court has arrived.

The result is the opposite of judicial imperialism. In the Dobbs abortion case, the Court is trying to extricate itself from abortion policy debates. As Justice Brett Kavanaugh put it, “the Constitution is neutral on the issue of abortion.” Policy will now be set by legislators in the states as informed by voters, subject to a low-level of legal review known as the “rational basis” test.

The political result may be surprising. The right-to-life movement now must persuade voters across 50 states, and most voters favor some limits on abortion but not an outright ban. If Republicans sound like moral scolds and can’t make their case with compassion for women, they will lose the debate. If Republicans seek a national ban on abortion via Congress, the Court could strike it down. The Court majority in Dobbs has invigorated democracy and federalism.

In its administrative law cases, the Court also isn’t dictating outcomes. It is invigorating its role as a traffic cop among the branches. On immigration law, two conservatives joined the liberals to side with the White House. But on climate six Justices found that the Biden Administration had exceeded the authority that Congress provided in legislation.

The cries from the left are that the Court has doomed the world to burning up. But progressives can still regulate carbon emissions. The rub is that to achieve their climate goals, they will have to pass legislation, not merely reinterpret an obscure corner of the Clean Air Act that wasn’t written with carbon emissions in mind.

As Justice Neil Gorsuch observed in WestVirginia v. EPA, legislating can be difficult in the American system. But that is how the Founders designed it to protect liberty and guarantee political accountability. Telling Congress it must write clear commands to the bureaucracy enhances accountability.

The Court is also taking a more robust approach to protecting the rights that the Constitution does mention, especially the First and Second Amendments. On gun rights, the Justices put new substance into the individual right to bear arms recognized by the 2008 Heller decision. Politicians can still regulate guns, but they must do so more carefully so individuals can defend themselves outside their homes.

On religious liberty, the Court cleaned up decades of confusing instructions to lower courts on the separation of church and state. The Justices gave new vigor to the free exercise of religion by supporting private prayer in a public place and barring discrimination against religious schools. States don’t have to aid private schools, but if they do they can’t deny that aid to religious schools. This is a proper policing role for the Court in securing liberties specified in the Constitution.

***
All of this vindicates the decades-long effort known as the conservative legal movement. What started with the law and economics school grew with the Federalist Society and a generation of federal judges into something far larger and now more consequential.

Lately some on the social right have called this movement a failure, but they are as mistaken as critics on the left. This Supreme Court term yielded victories for libertarians and cultural conservatives under the principle of originalism. The separation of powers is as crucial to protecting religious freedom as it is to protecting property rights or limiting regulation without Congressional commands.

This is a Court for the Constitution, and that means the right and left will have to win their policy victories the old-fashioned way—democratically.

Appeared in the July 2, 2022, print edition.
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Speaking of the Constitution, here’s a good collection of thoughts from our founders on this idea of a stagnant constitution that only represents the 1700’s that we are supposed to abide by for millennia:

https://historynewsnetwork.org/article/165374

Or maybe it’s kind of a distraction of an argument since originalism was only created as a theory in the 80’s as way of justifying carrying out unpopular draconian legislation.

 

Reposting the important part of my previous post:

"What is important is not semantics but "intent". The intent is to manipulate the system by thinking outside the box to add justices that are friendly to your agenda. Mitch was definitely thinking outside the box. He is a master, the likes of Darth Vader."

 

The only nominee affected by "outside the box" thinking was Garland. I already said that he should have just killed the nomination in committee or held the vote and not confirmed, then sent a list to Obama of justices they would be willing to confirm. It would have the same effect, but the optics would have been better. Mitch wasn't a master like Darth Vader, he got played. He won in the end, but looked worse than he needed to.

 

We can agree to disagree. Not only the way in which these candidates were nominated was historically unusual, the candidates themselves were unusual. In recent history, the only candidate in the same vein of controversy would be Clarence Thomas, whom now it feels like somebody just opened an ancient ark that now will enact his revenge for being pent up for so long ...and his side show of a wife, madam "conflict of interest".

This court is an embarrassment and does not represent the majority of Americans. Feel free to disagree. It's a free country (for now).

 

Collapse among Independents is striking (40 -> 25).

 

Opinion: Democrats are overreacting about the Supreme Court

https://www.washingtonpost.com/opinions/2022/07/11/democrats-are-overreacting-about-supreme-court/

excerpt:

With the end of the Supreme Court’s term, Democrats are denouncing the court as ideologically motivated, extreme, undemocratic, even destabilizing. Their angst is understandable, but it’s misguided.

It’s understandable because, until recently, progressives were able to rely on the court to achieve or ratify many of their most important policy goals. It’s misguided for at least two reasons. First, this court is not ideologically motivated — that is, committed to conservative outcomes. It is committed to a textualist approach that sometimes will produce outcomes that political conservatives cheer and sometimes will infuriate them.

Second, Democratic warnings of a constitutional apocalypse — with the court supposedly poised to strip away Americans’ rights to contraception (Griswold v. Connecticut), homosexual sex (Lawrence v. Texas), same-sex marriage (Obergefell v. Hodges) and other rights not explicitly mentioned in the Constitution — are overblown. The court is not inclined to do any such thing.

Any impression that conservatives could rely on this court for conservative outcomes was dispelled on the final day of the term. The court upheld the Biden administration’s repeal of President Trump’s “Remain in Mexico” policy. It also declined to review New York state’s vaccine mandate for health-care workers, which lacks a religious exemption.

Given strong legal arguments on both sides of the “Remain in Mexico” debate, an ideologically motivated court could have found plenty of reasons to strike down the repeal. Instead, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the court’s liberals in ruling it lawful, with Justice Amy Coney Barrett agreeing but for a procedural point. Similarly, the right-wing Supreme Court that Democrats imagine would have taken the vaccine case to cheers from conservatives. A few days earlier, the court disappointed law-and-order conservatives when it ruled 9 to 0 that convicting doctors allegedly operating opioid “pill mills” requires that they genuinely believed they were prescribing the medication improperly.

These mixed results are best understood by recognizing that this court is reliably conservative in the jurisprudential sense, rather than the ideological sense. That is, the majority — rather than pursuing a conservative policy agenda — is focusing on the text and intent of statutes and the Constitution, in contrast to the more flexible “living Constitution” approach popular on the left. While that often results in decisions that please conservatives, this court is not afraid to rule otherwise when that’s where textualism — or originalism, as many call it — leads.

And that’s how it should be. A court that never disappoints conservatives is likely a court that believes in a conservative version of the living Constitution.

As the majority in Dobbs v. Jackson Women’s Health Organizationnotes, “Americans hold sharply conflicting views” on abortion policy, but the Constitution is silent on the issue. For the textualist justices, that is the bottom line.

While textualism is not an exact science, it takes a lot of hand-waving to conjure up a right to abortion or even a broad right to privacy in the words of the Constitution, as written and amended. Nor can abortion rights be found among the common law rights that were implicitly incorporated into the Constitution. Roe v. Wade can’t change that fact. The issue must, therefore, be left to the democratic process.

***
What the future does hold is more controversial cases in the next Supreme Court term, including blockbuster cases on affirmative actionand the power of state legislatures to set voting rules. Next term will tell us a lot more about the fortitude and vitality of this court’s conservative majority. I expect it will continue to be guided by principled textualism, fearing neither intense criticism from the left nor disappointment among some conservatives when those principles lead to liberal outcomes.
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more at the link

 

When they flat out lie in their confirmation hearing, that’s going to piss people off.

 

sometimes the Federalist is worth reading just for the headline

The Left Launches Unhinged Attacks On The Supreme Court Because They’re Losing
Democrats’ calls for defiance and mob violence against the Supreme Court are not based on legal arguments but outcomes they dislike.

https://thefederalist.com/2022/07/14/the-left-fires-unhinged-attacks-on-the-supreme-court-because-theyre-losing/

 

What Overruling Roe and Casey Means For The Supreme Court's 'Legitimacy' | Opinion

https://www.newsweek.com/what-overruling-roe-casey-means-supreme-courts-legitimacy-opinion-1725997

excerpt:

Three decades ago, three Republican Supreme Court appointees reaffirmed Roe v. Wade because of three words: "stare decisis" and "legitimacy." In Planned Parenthood v. Casey, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter saved the landmark abortion precedent to ensure that people would not view the Court as a political institution.

Three decades later, in Dobbs v. Jackson Women's Health Organization, five Republican Supreme Court appointees found that stare decisis did not justify saving Roe v. Wade. But equally significant was that the majority rejected Casey's conception of "legitimacy." No longer would the Court's legitimacy be tied to public opinion. To the contrary, a legitimate Court must decide, and even overrule cases without regard for popular sentiments. This monumental shift—far more than any new jurisprudence on abortion—will define how far this new conservative Court will have the fortitude to go.

In 1992, the Supreme Court was asked to overrule Roe. Shortly after Casey was argued, there were five votes to reverse the 1972 decision. However, the votes in Casey would shift. Justices O'Connor, Kennedy, and Souter forged a compromise for the ages, or so they assumed: Roe would survive, but the states could restrict abortions after the point of viability. A critical portion of their joint opinion, attributed to Justice Souter, contended that failing to stand by Roe would undermine the Court's "legitimacy." Specifically, if the new Republican appointees could jettison Roe simply because they now had the votes to do so, in the face of immense political pressure, the Court would be viewed as just another partisan branch of government. Overruling such a "watershed" decision "under fire," they wrote, "would subvert the Court's legitimacy beyond any serious question."

This conception of legitimacy may have some intuitive appeal—why shouldn't the Court consider how its rulings would be viewed in such a contentious area? However, the Casey dissenters vigorously disagreed. Justice Antonin Scalia found "frightening" the notion that the majority would avoid a contentious ruling "in order to show that [it] can stand firm against public disapproval." And Chief Justice William Rehnquist warned that "once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself."
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more at the link

 

https://ethicsalarms.com/2022/07/20...cessfully-teaches-democrats-a-crucial-lesson/

Learning Curves: The Supreme Court Successfully Teaches Democrats A Crucial Lesson
JULY 20, 2022 / JACK MARSHALL

The lesson is: Legislate and pass Constitutional laws the public supports, and don’t depend on courts to do your job for you.

The House of Representatives, with Democrats being joined by 47 Republicans, voted yesterday to pass the Respect for Marriage Act, 267-157. The bill would codify same-sex marriage into federal law.

Good. That’s the way it’s supposed to be done, and that’s what should have been done with abortion as well, had not the activist Supreme Court of 1973 unethically contrived an abortion right that didn’t exist. Democrats frequently had the votes and White House support to codify abortion in the years between 1973 and 2022, but preferred to use “choice” as a wedge issue to hold on to the feminist vote. Good plan!

Of course, the vote yesterday is being framed in such a way that the public may never comprehend the good reasons to pass laws the old fashioned way rather than wait for a deliberately undemocratic and non-partisan referee—SCOTUS—to rule by edict. Speaker of the House Nancy Pelosi blamed her Democrats having to step up and legislate on a single Justice’s outlying concurrence in Dobbs. “Make no mistake, while his legal reasoning is twisted, and unsound, it is crucial that we take Justice Thomas and the extremist movement behind him at their word. This is what they intend to do,”she said.

I don’t think there is a chance in the world that same-sex marriage will be overturned. One thing about reversing Roe: it didn’t magically undo millions of abortions so there were suddenly all of these unaborted kids running around. Only Thomas (and maybe Justice Alito) are so doctrinaire that they would advocate a ruling that would either undo existing same sex marriages or create the unstable situation where some gay Americans are married with all the advantages of marriage while others are blocked from marriage. Furthermore, the argument for same sex marriages does not rely on the unenumerated right of privacy alone, but also Equal Protection, which was the basis on which several state courts ruled that restrictions on same sex marriages were impermissible.

The speculation is that the new bill will fail in the Senate because of a filibuster by Republicans. Republicans would be wise (and ethical) not to use the filibuster on this issue, but any sentence that begins with “Republicans would be wise” is flirting with fantasy.
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the fact that the Justices voted, and wrote out thoughtful, reasoned, justified position statements that explained their views fully? yeah that sucks

 

Exactly lol.

 

lol

“Offer Large Sums of Public Money”: Law Professor Calls for Congress to “Buyout” Conservative Justices

https://jonathanturley.org/2022/07/...for-congress-to-buyout-conservative-justices/

 

F Society's dark money fund got 1.6B more to play around with...the buyout/sellout happens in the beginning of a scrote's tenure, not the end.

https://www.nytimes.com/2022/08/22/us/politics/republican-dark-money.html
https://www.propublica.org/article/dark-money-leonard-leo-barre-seid

 

This! Honestly of all the things . . this annoys me the most.
This I think should be illegal. . . . They should all be under oath.

Rocket River

 

Another reason for reforms.

The Supreme Court has an image problem and is broken. It's a pipe dream that members of the Court would just self-police themselves, so this is no surprise when you have overly religious and unethical characters in the Court. When you have no requirements for adherence to a code of ethics. And you have Alito blasting political speeches for years now while Chief Justice Roberts stands in silence. The Court needs reform.

Former Anti-Abortion Leader Alleges Another Supreme Court Breach - The New York Times (nytimes.com)

Mr. Schenck’s allegation creates an unusual, contentious situation: a minister who spent years at the center of the anti-abortion movement, now turned whistle-blower; a denial by a sitting justice; and an institution that shows little outward sign of getting to the bottom of the recent leak of the abortion ruling or of following up on Mr. Schenck’s allegation.
...

In May, after the draft opinion in the abortion case, Dobbs v. Jackson Women’s Health Organization, was leaked in what Justice Alito recently called “a grave betrayal,” the chief justice took the unusual step of ordering an investigation by the Supreme Court’s marshal. Two months later, Mr. Schenck sent his letter to Chief Justice Roberts, saying he believed his information about the Hobby Lobby case was relevant to the inquiry. He said he has not gotten any response.

...

Supreme Court justices mostly police themselves, which Mr. Schenck said he exploited. While they are subject to the same law on recusals as other federal judges, they are not bound by the ethics code that applies to the rest. (Chief Justice Roberts has said they “consult” it.) Under court norms, they can socialize with lawyers or even parties with interests before them, as long as they do not discuss pending cases.

“I saw us as pushing the boundaries of appropriateness,” Mr. Schenck said.

Still, the ethics code requires judges to avoid any impression that outsiders are in a “special position” to influence them. It is this provision that the meetings Mr. Schenck arranged seemed most designed to test, according to judicial ethics experts.

...

He now regrets the tactics he once employed, saying he had used women and babies as props. “In all of my rhetoric about humanizing the fetus, I had very much dehumanized others,” he said in the interview.

The ruling this year thrilled anti-abortion supporters, though it has proved deeply unpopular among the majority of Americans. After the draft was leaked, Mr. Schenck said, he felt compelled to come forward about his attempts to influence the court.

“You can position yourself in a special category with regard to the Justices,” he said. “You can gain access, have conversations, share prayer.”

Even when his group was most active at the court, he said, “I would look up at that phrase that’s chiseled into the building itself, ‘Equal Justice Under Law,’” he recalled. “I would think, ‘Not really.’”