SCOTUS and the US constitution (split from The next Supreme Court judge)

[DrmDoc]

1 minute ago, J.C.MacSwell said:

How is this not making Laws?

Laws do not exist unless the Legislative branch proposes them and the Executive branch signs-off or approves them.  A law may continue to exist as long as it isn't challenged as a violation of our Constitution, which is where the SCOTUS intercedes.  A law may be rendered unenforceable if they do not agree with the primary law of our land, which is our Constitution as interpreted by the SCOTUS.  Understand that if a law is rendered permissible by a SCOTUS ruling, this not the making of that law but rather the judgement of that law as to whether it is valid and enforceable under our Constitution.  That judgement of a law's validation doesn't occur unless it is challenged before the Supreme Court.  A law may be valid if it isn't challenged and after that challenge, a SCOTUS ruling merely guides how that law may be applied by government going forward. 

[swansont]

1 hour ago, J.C.MacSwell said:

I know it is a difficult subject, but has a Federal Law ever been passed allowing full access to abortion with no restrictions?

AFAICT laws generally forbid things (you will be punished if you do X), rather than saying what you’re allowed to do. So, probably not, but it’s not surprising.

13 hours ago, MigL said:

After all, there was no such thing as abortions when the Constitution was written, so how can they be legal according to the Constitution ( as written ).

There were, and it would be an issue of whether any laws restricting them were constitutional. i.e. does the government have the authority to make such laws.

[J.C.MacSwell]

47 minutes ago, swansont said:

AFAICT laws generally forbid things (you will be punished if you do X), rather than saying what you’re allowed to do. So, probably not, but it’s not surprising.

Understood. I did wonder how they managed to give less protection to a late trimester unborn child, than an essentially younger one born prematurely.

Simply by default and where birth is used as as the legally recognized point of human life?

[MigL]

3 hours ago, swansont said:

There were, and it would be an issue of whether any laws restricting them were constitutional.

Of course there were abortions, but there were no laws regulating them ( I may have mis-spoken in my original post ).
When laws were introduced, the SC decided they were Constitutional ( or no one ever challenged them in court ).
As social mores changed, beginning with the 60s sexual 'revolution', birth control, etc., the SC re-interpreted those laws to limit Government interference in a woman's right to choose.

The SC, in effect, chaned the applicability of the existing laws, while the laws ( and Constitution ) did not change.
You could make the semantic argument that the SC does not actually 'make' the law, but they can certainly modify its extent and applicability.

[swansont]

12 minutes ago, MigL said:

When laws were introduced, the SC decided they were Constitutional ( or no one ever challenged them in court ).

It would be that nobody challenged. SCOTUS (and the court system in general) can only rule on a case brought before them.

 

12 minutes ago, MigL said:

As social mores changed, beginning with the 60s sexual 'revolution', birth control, etc., the SC re-interpreted those laws to limit Government interference in a woman's right to choose.

The SC, in effect, chaned the applicability of the existing laws, while the laws ( and Constitution ) did not change.
You could make the semantic argument that the SC does not actually 'make' the law, but they can certainly modify its extent and applicability.

The first SC case about abortion was in 1971 and Roe v Wade was 1973, so it was not about the SC reinterpreting anything.

https://www.aclu.org/other/timeline-important-reproductive-freedom-cases-decided-supreme-court

[MigL]

From   Roe v. Wade - Wikipedia

"In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor ruling that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether to have an abortion. But it also ruled that this right is not absolute and must be balanced against governments' interests in protecting women's health and prenatal life.^[4][5] The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.^[5] The Court classified the right to choose to have an abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the highest level of judicial review in the United States"

Then the SC modified their interpretation again, in 1992

"The Supreme Court revisited and modified Roe's legal rulings in its 1992 decision Planned Parenthood v. Casey.^[9] In Casey, the Court reaffirmed Roe's holding that a woman's right to choose to have an abortion is constitutionally protected, but abandoned Roe's trimester framework in favor of a standard based on fetal viability and overruled the strict scrutiny standard for reviewing abortion restrictions."

[mistermack]

6 hours ago, iNow said:

Agreed. In practice, most courts almost always are. Thanks for clarifying.

Yes, it was always a question of degree, like everything else. From the outside looking in, it's amazing to see the open acceptance of political bias being wielded in a court of law. Of course it happens everywhere to some extent, but it's so blatant, automatic and accepted in the US. It's the public assumption that the next appointed judge will be leftward leaning, and will NEED to be, to counter the existing bias of right leaning judges. 

Maybe it's more honest, accepting that humans are biased, and try to work with it? But I don't think so, I think humans, especially judges, should be able to rise above that. 

It can be otherwise. In the game of golf, for example, professional players are expected to call a foul on themselves, if they accidentally move a ball. It's against all of your instincts, when you are doing all you can to win. But most pros call it, even if nobody has seen it. It's the same in snooker, here in the UK. People can be honest, when the peer pressure is united enough. But in legal cases, I guess there's enough grey area to hide behind. A golf ball either moves, or it doesn't, so the decision is just, do I cheat or not? On a legal bench, it's more complicated, and you can easily conjure up a justification for what you voted. And especially so, when you know perfectly well that the judges on the other side of the argument are going to vote politically, just like you. 

[Endy0816]

53 minutes ago, mistermack said:

Yes, it was always a question of degree, like everything else. From the outside looking in, it's amazing to see the open acceptance of political bias being wielded in a court of law. Of course it happens everywhere to some extent, but it's so blatant, automatic and accepted in the US. It's the public assumption that the next appointed judge will be leftward leaning, and will NEED to be, to counter the existing bias of right leaning judges. 

Maybe it's more honest, accepting that humans are biased, and try to work with it? But I don't think so, I think humans, especially judges, should be able to rise above that. 

It can be otherwise. In the game of golf, for example, professional players are expected to call a foul on themselves, if they accidentally move a ball. It's against all of your instincts, when you are doing all you can to win. But most pros call it, even if nobody has seen it. It's the same in snooker, here in the UK. People can be honest, when the peer pressure is united enough. But in legal cases, I guess there's enough grey area to hide behind. A golf ball either moves, or it doesn't, so the decision is just, do I cheat or not? On a legal bench, it's more complicated, and you can easily conjure up a justification for what you voted. And especially so, when you know perfectly well that the judges on the other side of the argument are going to vote politically, just like you. 

Impartiality is definitely prized too, but SC Justices could be there forever and Constitution can be vague at times.

 

[mistermack]

Just a comment on the constitution, since the thread was split. 

INow pointed out that "all men are created equal" is not binding, because it's in the declaration of independence, not the constitution. 

But looking at the wording, it says that this is a "self evident truth". So logically, if it's self evident, then there's no need to write it down. Any judge, at any time, should know that it's true, and rule accordingly. Which makes the support of slavery rights by the court an even bigger shame on it's reputation. 

Not that it's unique in that by any means. 

Apply that principle to abortion, and you come up against a problem. When is a "man" created? And when does it become "equal" ? It's not so self-evident as the independence declaration would have you believe. 

[MigL]

It was 'justified' at the time by having the measure of a colored slave as a fraction of a man.
In which case it was 'self evident' to them that slaves were not fully men, and therefore, not equal.

It takes some pretty tangled thinking to justify such brutal acts.
( and it goes on, to this day, in the Kremlin, to justify war on Ukraine )

[swansont]

2 hours ago, mistermack said:

Just a comment on the constitution, since the thread was split. 

INow pointed out that "all men are created equal" is not binding, because it's in the declaration of independence, not the constitution. 

But looking at the wording, it says that this is a "self evident truth". So logically, if it's self evident, then there's no need to write it down. Any judge, at any time, should know that it's true, and rule accordingly. Which makes the support of slavery rights by the court an even bigger shame on it's reputation. 

Slaves were property and not people. Reprehensible, yes, but in a legal view it meant the problem of rights was a non-issue.

 

1 hour ago, MigL said:

It was 'justified' at the time by having the measure of a colored slave as a fraction of a man.
In which case it was 'self evident' to them that slaves were not fully men, and therefore, not equal.

It takes some pretty tangled thinking to justify such brutal acts.
( and it goes on, to this day, in the Kremlin, to justify war on Ukraine )

It's used all the time, in a lot of places. Color your opponent as vermin or insects, or anything other than human, in order to justify not treating them as people. That gives you leave to expel or exterminate them.

[mistermack]

9 minutes ago, swansont said:

Slaves were property and not people. Reprehensible, yes, but in a legal view it meant the problem of rights was a non-issue.

And the same people were packing out the churches on a Sunday. It's amazing what people can make themselves believe. 

[Endy0816]

 

2 hours ago, MigL said:

It was 'justified' at the time by having the measure of a colored slave as a fraction of a man.
In which case it was 'self evident' to them that slaves were not fully men, and therefore, not equal.

Ironically the Slaveholding States actually suggested numerical equality at one point to give themselves more Representatives in the House.

https://en.m.wikipedia.org/wiki/Three-fifths_Compromise

 

 

Edited February 28, 2022 by Endy0816

[iNow]

When Mitch McConnell blocked Barack Obama from appointing Merrick Garland to the Supreme Court in 2016 due to being within 11 months of an election (a principle they quickly forgot once Trump was in office), someone said, "Apparently McConnell thinks black presidents only get 3/5ths of a term."

[Phi for All]

On 2/27/2022 at 4:45 PM, Endy0816 said:

Impartiality is definitely prized too, but SC Justices could be there forever and Constitution can be vague at times.

The lifetime appointment for SCOTUS hinges on good behavior (Article III, Section 1, US Constitution):

Quote

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Another vague wording, but I'd say several of the current judges are guilty of straying from "good behavior", such as working with insurrectionists, and could be removed from office by Congress.

[Endy0816]

1 hour ago, Phi for All said:

The lifetime appointment for SCOTUS hinges on good behavior (Article III, Section 1, US Constitution):

Another vague wording, but I'd say several of the current judges are guilty of straying from "good behavior", such as working with insurrectionists, and could be removed from office by Congress.

Theoretically...

Would likely lack the Supermajority needed for Conviction in the Senate though.

[Phi for All]

17 hours ago, Endy0816 said:

Theoretically...

Would likely lack the Supermajority needed for Conviction in the Senate though.

Actually, reading further on the subject, this provision wouldn't entail impeachment, so wouldn't go through Congress at all. "Good behavior" by officials at the time this was written included NOT abusing your office, so the matter could be taken up by DOJ and the courts. There are lots of precedents, including an act of Congress from 1790 that details what can be done to a corrupt judge: https://www.loc.gov/resource/rbpe.2130140a/?sp=4

[LazyLemonLucas]

On 2/26/2022 at 6:55 PM, MigL said:

As you yourself alluded to, and TheVat explained, the Constitution is a 'fluid' document, that changes with changing societal norms ( except for that pesky 2nd Amendment, which resists change ). 

Why would the 2nd amendment be troublesome? haha

[Endy0816]

6 hours ago, Phi for All said:

Actually, reading further on the subject, this provision wouldn't entail impeachment, so wouldn't go through Congress at all. "Good behavior" by officials at the time this was written included NOT abusing your office, so the matter could be taken up by DOJ and the courts. There are lots of precedents, including an act of Congress from 1790 that details what can be done to a corrupt judge: https://www.loc.gov/resource/rbpe.2130140a/?sp=4

 

Not sure, know the Democratic-Republicans didn't have the best of excuses for Impeaching the one.

I'm sure could bring a case too. No idea how it would all work out though if a Justice was still serving especially considering potential appeals. Weird legal territory.

Edited May 10, 2022 by Endy0816