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Which Supreme Court was the activist?

Dafuq are you talking about @claykenny ?

If someone is arguing that something is unconstitutional, then they must be able to point to SOMETHING that's actually in the constitution that is somehow possibly relevant to their dispute with the law, be it criminal, civil or common.
Can you please point me to the passage in the constitution that specifically refers to abortion? Go.
 
I’m perfectly okay with a Court that looks beyond 1688 for traditions, norms, and context.

You’re an old, white male, Trad. These are your people and your times. Enjoy.
Why? You're saying then that the court should invalidate laws because norms change, and not have the people's legislatures change them?
 
They both are/were, in their own ways.

First, of all, let's note that both courts' justices scoured the cert petitions to find the cases that presented the issues they wanted to decide. That selection, in itself, is a form of activism, that probably is simply unavoidable.

The courts of the 70s were activist in a somewhat more "substantive" measure - meaning that their method of interpreting the constitution and laws did in fact differ from the way that had been conducted previously. Indeed, if you read some of the old classics, it's actually sort of striking how much they read almost like legislative edicts than traditional legal analysis.

Today's Court is, imo, more activist in a more procedural way. To my eye, they are more aggressive at looking for the cases they want. (And, if there is a problem with organizations like FedSoc, Pacific Legal, and the like, it is that they've created a feedback loop of advocates to create those cases, just as ACLU and NAACP did before them on the left.) Clearly, their use of the shadow docket this last year or two has been inconsistent with prior practice, and while I recognize they have to address the cases that are presented to them, there is absolutely a case to be made that they've been selective in its use. Second, as I remarked regarding Dobbs, in the cases that interest them, they have in fact decided them on bases that are broader than necessary. But as to substantive activism, I would say two things: (i) their approach to decsionmaking is actually consistent with the traditional means that courts used to address cases; and (ii) their decisionmaking is a lot less monolithic than many on the left would suggest. The Gorsuch/Alito split on criminal procedure matters, and the Thomas v. Kav and Barrett perspectives on the real world operation of institutional government, illustrate this nicely.
 
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The majority of American voters voted for Gore in 2000 and Clinton in 16 so just stop with this. We know you cling to the electoral college as a supporter of the minority rule party but 5 of those 9 justices are illegitimate.

With the filthy hijacking of the court McConnell pulled denying Garland for most of 16 saying the people should decide (people chose Hillary) then forcing ACB through right before the 20 election you gotta be a real POS to even say this. But that's BAU for OP. This court is a complete joke
Throw tantrums much?
 
Each and every court makes decisions I don't agree with. Roberts was the deciding vote to allow most of Obamacare when he said it being mandatory was within taxing authority of Congress.

Plessy (1896) was clearly (bad) judicial reasoning.

Gibbons v Ogden was probably one of the worst decisions ever (1824).

What's interesting right now is people yapping about judicial activism when it comes to Dobbs. To me, the definition of judicial activism is when judges make rules instead of simply judging the law or Constitution. Roe and Casey are prime examples of this , with Roe putting forth trimester rules, and Casey putting forth viability rules. This court is clearly on the path of forcing legislatures to make law, not judges or executive departments. Everyone who believes in democracy should support that notion.

As far as rights go, I believe in federalism and the Bill of Rights. Both are consistent with a libertarian view. I find the SCOTUS to be too deferential to governments, bot State and Federal when it comes to the balance with individual rights. I find this to be especially true with 4A, and the conservative justices are the worst offenders when it comes to giving government entities the benefit of the doubt.

I'm also really amazed at how many people are truly misinformed about what SCOTUS opinions actually say, how they were arrived at, and what the true impact will be. The press or bloggers or tweeters put out misleading or just plain wrong headlines, and all of a sudden that becomes the narrative. Some very good people on HORT are guilty of accepting some of these things without checking.
 
Well, yeah, it is. That’s how America’s legal system is set up. If there’s no existing law and it isn’t prohibited by the constitution, then the court decides a precedent which effectively becomes law and influences all other case law that follows.

Read about the difference between a civil law system (France) and a common law system (U.S., U.K.). Our founding fathers opted for common law.

But you probably know what you’re talking about, as usual.
Nope. There are enumerated rights, and those not enumerated are reserved to the states, and the people. When there's a dispute not covered by a law, the courts need to say that. There's plenty of precedent to cover pretty much everything on the criminal side, and torts to cover the civil side.
 
Each and every court makes decisions I don't agree with. Roberts was the deciding vote to allow most of Obamacare when he said it being mandatory was within taxing authority of Congress.

Plessy (1896) was clearly (bad) judicial reasoning.

Gibbons v Ogden was probably one of the worst decisions ever (1824).

What's interesting right now is people yapping about judicial activism when it comes to Dobbs. To me, the definition of judicial activism is when judges make rules instead of simply judging the law or Constitution. Roe and Casey are prime examples of this , with Roe putting forth trimester rules, and Casey putting forth viability rules. This court is clearly on the path of forcing legislatures to make law, not judges or executive departments. Everyone who believes in democracy should support that notion.

As far as rights go, I believe in federalism and the Bill of Rights. Both are consistent with a libertarian view. I find the SCOTUS to be too deferential to governments, bot State and Federal when it comes to the balance with individual rights. I find this to be especially true with 4A, and the conservative justices are the worst offenders when it comes to giving government entities the benefit of the doubt.

I'm also really amazed at how many people are truly misinformed about what SCOTUS opinions actually say, how they were arrived at, and what the true impact will be. The press or bloggers or tweeters put out misleading or just plain wrong headlines, and all of a sudden that becomes the narrative. Some very good people on HORT are guilty of accepting some of these things without checking.
As a libertarian you must be pro-choice then. Is that correct?
 
Nope. There are enumerated rights, and those not enumerated are reserved to the states, and the people. When there's a dispute not covered by a law, the courts need to say that. There's plenty of precedent to cover pretty much everything on the criminal side, and torts to cover the civil side.

Well, this was coming from my lawyer's explanation. I'd venture a guess he knows what he's talking about.
 
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Well, this was coming from my lawyer's explanation. I'd venture a guess he knows what he's talking about.
There are always 2 lawyers with differing opinions in every legal dispute. Even at the highest level we get disagreement about the proper role of the court.

Every charged crime has to state an underlying statute.

Every civil case has to have a cause of action based on a law. With torts that's an injury.

With those concepts in mind, I can't think of a reason for any judge to make law. Perhaps your lawyer can provide an example.
 
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Don't like the EC? Amend the Constitution.

I really hate that statement.

First of all it acts as if one person could simply amend the constitution.

But I think the worst part of that statement is the sheer failure to acknowledge how a tiny minority could hold up the whole works.

An amendment to the constitution requires the agreement of 38 states!

This isn't like most other nations where the constitution can be amended via simple majority referendum.

Stop glossing over the advantages right wing has in our political system that have nothing to do with the total amount of votes they get and everything to do with where their voters live.
 
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I really hate that statement.

First of all it acts as if one person could simply amend the constitution.

But I think the worst part of that statement is the sheer failure to acknowledge how a tiny minority could hold up the whole works.

An amendment to the constitution requires the agreement of 38 states!

This isn't like most other nations where the constitution can be amended via simple majority referendum.

Stop glossing over the advantages right wing has in our political system that have nothing to do with the total amount of votes they get and everything to do with where their voters live.
I don't really like it that much either, but I do sorta think it's actually spot on when it comes to using the amendment process for discrete policy questions such as this. That is, all the better that it's hard to do so in those contexts, as our experience with prohibition showed us. We've got easier democratic pathways to get things done, even if they too are intentionally designed with brakes on them.

As to geographic demographics, well, e pluribus unum or not? Also, my neighbor's got quite a bit to say on this topic...
 
And yet here you are. Weird.

And skipped math on your way to multiple advanced degree's apparently. LOL!
images
 
You have no constitutional right to "privacy"... that word does not appear anywhere in the constitution.
Justice Thomas disagrees with your take on the constitutional guarantee of privacy, well at least until a few months ago it appears.

How should Americans feel about a majority of the SCOTUS justices that misrepresented their positions and essentially lied while being questioned under oath prior to confirmation? How much faith will the American people retain in their judicial system when the Constitution which is touted as the foundational rock of our republic now appears to be shifting sands under our feet?
 
I recall an actual constitutional amendment that worked out pretty good for people of color after only 100 years of our country's history. No court inventing rights out of thin air necessary.

And then women made their own progress after only 150 years of history... again through a constitutional amendment instead of an activist court.

But ain't nobody gots time for dat in the 1970s! So that court greatly overstepped their authority. That was wrong.
Shirley, YOU jest? Slaves freed in 1863.........and 100 years later they get the laws passed to get equal treatment in all 50 states (Civil Rights 1964) and then a year later they get "equal treatment at the ballot box in all 50 states (Voting Rights of 1965)...
and then I assume you are talking women.....who waited 135 years to vote.....and them another 50some years to get the ERA passed and equal treatment to men codified! And all these "laws" had to be jump started by the Courts in some way or another. Take your bullshit down the road, son.
 
There are always 2 lawyers with differing opinions in every legal dispute. Even at the highest level we get disagreement about the proper role of the court.

Every charged crime has to state an underlying statute.

Every civil case has to have a cause of action based on a law. With torts that's an injury.

With those concepts in mind, I can't think of a reason for any judge to make law. Perhaps your lawyer can provide an example.

Appreciate your response. I’m not a lawyer, so I’m trying to learn.

What is primae impressionis? That is what my lawyer was referring to as the difference between the two systems of law where when there is no existing statute pertaining to the issue in question and no applicable legal precedent, the judge effectively decides “the law” based on logic, legal writings, and effectively “academia”. This then becomes precedent for future cases until superseded by new legislation that does codify law (assuming new law is constitutional) or until a higher court decides differently.
 
Appreciate your response. I’m not a lawyer, so I’m trying to learn.

What is primae impressionis? That is what my lawyer was referring to as the difference between the two systems of law where when there is no existing statute pertaining to the issue in question and no applicable legal precedent, the judge effectively decides “the law” based on logic, legal writings, and effectively “academia”. This then becomes precedent for future cases until superseded by new legislation that does codify law (assuming new law is constitutional) or until a higher court decides differently.
That might apply to an interpretation of a new law that has never been challenged, or an existing law that has never been challenged, or there's a new circumstance or set of facts. Either way, the judge doesn't make a law, but instead sets a precedence based on the case. A good example would be the evolving 4A decisions on traffic stops, surveillance of autos, etc., where technology changes. The 4th amendment doesn't change. New regulations aren't made. The Judge (or Justices) simply say what is permissible under 4A and what isn't. Perhaps that's a nuanced way of coming to the same place, but unless it's codified, different judges can come to different conclusions, which is common in the federal system.
 
That might apply to an interpretation of a new law that has never been challenged, or an existing law that has never been challenged, or there's a new circumstance or set of facts. Either way, the judge doesn't make a law, but instead sets a precedence based on the case. A good example would be the evolving 4A decisions on traffic stops, surveillance of autos, etc., where technology changes. The 4th amendment doesn't change. New regulations aren't made. The Judge (or Justices) simply say what is permissible under 4A and what isn't. Perhaps that's a nuanced way of coming to the same place, but unless it's codified, different judges can come to different conclusions, which is common in the federal system.

Maybe my verbiage is what’s off, but I think we’re saying the same thing. If there isn’t an explicit law, it is up to a judge to decide if it is legal. Isn’t that precedent effectively a law under common law unless legislation is passed or a higher court overrules?
 
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Shirley, YOU jest? Slaves freed in 1863.........and 100 years later they get the laws passed to get equal treatment in all 50 states (Civil Rights 1964) and then a year later they get "equal treatment at the ballot box in all 50 states (Voting Rights of 1965)...
and then I assume you are talking women.....who waited 135 years to vote.....and them another 50some years to get the ERA passed and equal treatment to men codified! And all these "laws" had to be jump started by the Courts in some way or another. Take your bullshit down the road, son.

The ERA passed? When did that happen???
 
Justice Thomas disagrees with your take on the constitutional guarantee of privacy, well at least until a few months ago it appears.

How should Americans feel about a majority of the SCOTUS justices that misrepresented their positions and essentially lied while being questioned under oath prior to confirmation? How much faith will the American people retain in their judicial system when the Constitution which is touted as the foundational rock of our republic now appears to be shifting sands under our feet?

Wow. What a strawman.
 
for good reason....

Don't think it'd be optimal if we were adding amendments to the constitution every 4 to 8 years...depending on who's in power.

It's hard for a reason.

Other countries arn't amending their constitution that often. They usually do it by national referendum.

We could require a super majority like 60% or 2/3rds on the referendum if you want but I do think it needs to be easier to amend the constitution. Of course it's impossible to make it easier to amend the constitution without amending the constitution which you can't get 3/4ths of the states to agree on anything.
 
Other countries arn't amending their constitution that often. They usually do it by national referendum.

We could require a super majority like 60% or 2/3rds on the referendum if you want but I do think it needs to be easier to amend the constitution. Of course it's impossible to make it easier to amend the constitution without amending the constitution which you can't get 3/4ths of the states to agree on anything.
While I'm generally a fan of amendments relating to structure/function of government, I'm somewhat less so with respect to discrete substantive policies (since it's just as easy to take them away by that process). But it is an intriguing possibility. I do wonder whether a supermajority requirement would really put us in all that different a position. And I'd certainly not favor a simply majority - the last thing i want is to be like a california voter where there are 100 questions on the ballot every year.
 
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