• Thoughts and questions about the USSC

    From micky@21:1/5 to All on Mon Jul 29 18:49:42 2024
    Someone, not just a caller, on the radio thought it would take a con.
    amendment to limit the terms of USSC members. Others have said it only
    take a statute, because one wouldn't be ending their careers as judges,
    just transferring them to a lower court.

    Did the first guy just not think of what the second choice relied on?

    What do you think?


    Many people on the radio have called the right to an abortion a
    constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?


    I understand why Biden, who is probably disappointed that after 240
    years any changes are needed at all, might want to start "small" with
    the USSC topics he brought up today, term limits, binding ethics rules,
    and no immunity, and maybe he would save increasing the size of the
    court to 13 for later, after the court showed lack of cooperation and
    did more harm, including striking down new statutes that denied
    immunity, that restored to the agencies the power to make decisions,
    etc. But it seems to me that, given that nothing will get done until
    2025 at the earliest, early 2025 is the latest we should be undoing the mistakes of this court, and that would require adding 4 new members
    asap. What do you think?


    If there were 4 more members, would it be hard to rehear the worst
    decisions? For example, the immunity decision was about one case. The respective judges could let the other cases go forward, be contradicted
    by appeals courts that would enforce the USSC ruling, and then the
    prosecutors could appeal to the USSC which coudl overrule a a decision
    from only a year earlier. Right? What do you think?


    If there is a no immunity constituational amendment, won't trump argue
    that it's an ex post facto law and doesn't apply to his misdeeds? That's
    why we need 4 new members for the court.


    I always believe someone when they are talking, and often even longer,
    and when Roberts said a few years ago that times had changed so the DOJ
    didn't need to pre-approve changes to voting rules in states with a
    history of denying the right to vote to Black people (and whomever
    else), I believed it when he said it and nothing happeend to reverse
    that, even though I knew then he'd have to be either awfullly naive or
    very idealistic to think what he said the thought. Or both together.
    But I no longer believe naivete or idealism was what motivated him, at
    least not the ideal that racism had died away or racist people were now unwilling to act in a racist manner. The "ideal" that motivated him
    must have been, Let's keep the federal government out of state
    elections, out of state affairs --- even if that means Blacks get
    screwed out of exercising their rights.

    --
    I think you can tell, but just to be sure:
    I am not a lawyer.

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  • From Barry Gold@21:1/5 to micky on Tue Jul 30 11:09:00 2024
    On 7/29/2024 6:49 PM, micky wrote:
    Many people on the radio have called the right to an abortion a constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?

    You're forgetting the 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be
    construed to deny or disparage others retained by the people.

    --
    I do so have a memory. It's backed up on DVD... somewhere...

    --- SoupGate-Win32 v1.05
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  • From Rick@21:1/5 to micky on Tue Jul 30 11:59:03 2024
    "micky" wrote in message news:[email protected]...

    Someone, not just a caller, on the radio thought it would take a con. >amendment to limit the terms of USSC members. Others have said it only
    take a statute, because one wouldn't be ending their careers as judges,
    just transferring them to a lower court.

    Did the first guy just not think of what the second choice relied on?

    What do you think?


    Many people on the radio have called the right to an abortion a >constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?


    I understand why Biden, who is probably disappointed that after 240
    years any changes are needed at all, might want to start "small" with
    the USSC topics he brought up today, term limits, binding ethics rules,
    and no immunity, and maybe he would save increasing the size of the
    court to 13 for later, after the court showed lack of cooperation and
    did more harm, including striking down new statutes that denied
    immunity, that restored to the agencies the power to make decisions,
    etc. But it seems to me that, given that nothing will get done until
    2025 at the earliest, early 2025 is the latest we should be undoing the >mistakes of this court, and that would require adding 4 new members
    asap. What do you think?


    If there were 4 more members, would it be hard to rehear the worst
    decisions? For example, the immunity decision was about one case. The >respective judges could let the other cases go forward, be contradicted
    by appeals courts that would enforce the USSC ruling, and then the >prosecutors could appeal to the USSC which coudl overrule a a decision
    from only a year earlier. Right? What do you think?


    If there is a no immunity constituational amendment, won't trump argue
    that it's an ex post facto law and doesn't apply to his misdeeds? That's
    why we need 4 new members for the court.


    I always believe someone when they are talking, and often even longer,
    and when Roberts said a few years ago that times had changed so the DOJ >didn't need to pre-approve changes to voting rules in states with a
    history of denying the right to vote to Black people (and whomever
    else), I believed it when he said it and nothing happeend to reverse
    that, even though I knew then he'd have to be either awfullly naive or
    very idealistic to think what he said the thought. Or both together.
    But I no longer believe naivete or idealism was what motivated him, at
    least not the ideal that racism had died away or racist people were now >unwilling to act in a racist manner. The "ideal" that motivated him
    must have been, Let's keep the federal government out of state
    elections, out of state affairs --- even if that means Blacks get
    screwed out of exercising their rights.


    Regarding your first point, I think the view that the judges wouldn't lose their jobs per se but merely get transferred to a lower court doesn't make
    much sense since it assumes there are lower court openings available for the displaced judges. More importantly, the Constitution states that judges
    will hold their "Offices" during good behavior, which implies they hold the
    job ("Office") they were appointed to, not just any available position in
    the court system.

    Regarding the second point, if you're saying the only rights we can take
    from the Constitution are those that are spelled out explicitly, then I
    agree with that. I don't think they have to be specifically labeled as "rights" necessarily, but they should be spelled out fairly explicitly. For example, the 14th Amendments spells out pretty clearly the right of anyone
    born in the USA to be a citizen of both the nation and the state where they
    are born, but the word "right" is not used.

    I think that some justices have made the case more than once that some
    rights are more implied by the Constitution than spelled out directly - such
    as the presumed right to privacy. Others would say that unless a right is spelled out explicitly, it shouldn't be inferred. This is sort of the
    essence of the abortion controversy. Roe v Wade asserts that the right to
    an abortion is implied by the Constitution. The decision last year says it
    is not. It all depends on how you view the document. I personally think,
    like any legal document, the document has to stand on the specific words contained within.

    Regarding the third point, packing the court with four additional members
    would require passage by both houses of Congress, which includes needing 60 votes in the Senate to override a veto. That will not happen before 2025,
    if anytime soon after that, so I don't think you are correct that this might
    be the easiest first step in Court reform.

    --

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  • From Stan Brown@21:1/5 to micky on Tue Jul 30 17:08:13 2024
    On Mon, 29 Jul 2024 18:49:42 -0700 (PDT), micky wrote:
    Many people on the radio have called the right to an abortion a constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?

    Read the Ninth Amendment:

    "The enumeration in the Constitution, of certain rights, shall not be
    construed to deny or disparage others retained by the people."

    When previous Courts found constitutional rights that are not
    explicit in the Constitution, this was the foundation.

    Have you ever read the Constitution and the amendments? From a lot of
    the questions you ask, I'm guessing the answer is no. It's not hard
    to read, and the original Constitution is a masterpiece of literary
    style. Even with the amendments, it's shorter than most state
    constitutions.

    An American who supposedly cares about the law but hasn't read the
    constitution is somewhat in the position of a Christian who hasn't
    read the Bible.

    --
    Stan Brown, Tehachapi, California, USA https://BrownMath.com/
    Shikata ga nai...

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  • From Jethro_uk@21:1/5 to Stan Brown on Wed Jul 31 07:19:12 2024
    On Tue, 30 Jul 2024 17:08:13 -0700, Stan Brown wrote:

    On Mon, 29 Jul 2024 18:49:42 -0700 (PDT), micky wrote:
    Many people on the radio have called the right to an abortion a
    constitutional right. Yes, they deduced it from reading the
    consitution but it seems to me the phrase "Constitutional Right" should
    be limited to those that are specified, named, like those in the First
    Amendment, 2nd Amenmdnet, 5th,, 13th. If not, every case decided on
    the basis of the Constitution would be establishilng a constitutional
    right, and there are so many that that would trivialize the phrase.
    What do you think?

    Read the Ninth Amendment:

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    When previous Courts found constitutional rights that are not explicit
    in the Constitution, this was the foundation.

    Have you ever read the Constitution and the amendments? From a lot of
    the questions you ask, I'm guessing the answer is no. It's not hard to
    read, and the original Constitution is a masterpiece of literary style.
    Even with the amendments, it's shorter than most state constitutions.

    The late, much missed P.J. O'Rourke once noted it was much shorter than
    his cars manual - and he still couldn't work the rear wiper.

    An American who supposedly cares about the law but hasn't read the constitution is somewhat in the position of a Christian who hasn't read
    the Bible.

    I can't claim to have met a Christian who has really *read* the bible themselves. Always fun to poke them with the bits that the people whose summaries they have half listened to miss out.

    --- SoupGate-Win32 v1.05
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  • From micky@21:1/5 to Gold on Thu Aug 1 07:01:43 2024
    In misc.legal.moderated, on Tue, 30 Jul 2024 11:09:00 -0700 (PDT), Barry
    Gold <[email protected]> wrote:

    On 7/29/2024 6:49 PM, micky wrote:
    Many people on the radio have called the right to an abortion a
    constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?

    You're forgetting the 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be >construed to deny or disparage others retained by the people.

    Actually for me that wording makes my case. The enumerated rights seem
    to me to be the Constituational rights, and the others retained by the
    people are inherent rights or basic rights or natural rights or state-guaranteed rights, but not Constitutional rights.

    Rights based on the US Constitution but not enumerated in it, like
    abortion, birth control, privacy but also including some right inherent
    in every decision they make based on the US Constituion would not be Constitutional Rights, because it's better to be clear. I think it makes
    future discussions more likely to be productive. "Based on the
    Constitution" versus "enumerated in the Constitution. Repeating myself,
    I would save Constitutional Right for those enumerated.


    At the same time I think I asked here years ago, in different words, why
    the court had to find or create a right of privacy to find in Griswold.
    Why isn't it the case that in a free country -- and just about everyone
    likes to say we are or shoudl be a free country -- everyone has the
    right to do anything unless the government can come up with a good
    reason why that something hurts someone else. Why is the burden not on
    the government to show that some act is harmful to others** and not on individuals to find something somewhere in the Constitution, which is
    not very long and not meant to include every specific thing, to hang on.
    **Not sure what they would do about suicide, which doesn't directly harm others, except in some cases maybe dependant children. When I was
    young, I thought laws against suicide were enacted to make it easier for
    police to investigate possible murders and attempted murder disguised as suicide. But eventually I realized that people really want to use the
    force of the state to stop suicide. Christianity (all branches I'm
    assuming) prohibits suicide and that might be the underlying basis in
    the minds of those who voted for the states to do so, but that's not a violation of the First Amendment. Christianity prohibits stealing and
    murder too, and I don't think those laws violate the First Amendment.
    And Judaism prohibits suicide and I'm a Jew and I take that seriously .
    But what Amnerican laws against suicide violate is the ideal that we're
    a free country with an inalienable right to liberty.

    --
    I think you can tell, but just to be sure:
    I am not a lawyer.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From micky@21:1/5 to Brown on Thu Aug 1 07:02:12 2024
    In misc.legal.moderated, on Tue, 30 Jul 2024 17:08:13 -0700 (PDT), Stan
    Brown <[email protected]> wrote:

    On Mon, 29 Jul 2024 18:49:42 -0700 (PDT), micky wrote:
    Many people on the radio have called the right to an abortion a
    constitutional right. Yes, they deduced it from reading the consitution
    but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you
    think?

    Read the Ninth Amendment:

    "The enumeration in the Constitution, of certain rights, shall not be >construed to deny or disparage others retained by the people."

    When previous Courts found constitutional rights that are not
    explicit in the Constitution, this was the foundation.

    Yes, I know. I replied to Barry about this

    Have you ever read the Constitution and the amendments? From a lot of

    Of course I have.

    the questions you ask, I'm guessing the answer is no.

    Because I reach a conclusion that does not agree with you! Really now.

    It's not hard
    to read, and the original Constitution is a masterpiece of literary
    style. Even with the amendments, it's shorter than most state
    constitutions.

    An American who supposedly cares about the law but hasn't read the >constitution is somewhat in the position of a Christian who hasn't
    read the Bible.

    --
    I think you can tell, but just to be sure:
    I am not a lawyer.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From micky@21:1/5 to Rick on Thu Aug 1 07:02:57 2024
    In misc.legal.moderated, on Tue, 30 Jul 2024 11:59:03 -0700 (PDT),
    "Rick" <[email protected]> wrote:

    "micky" wrote in message news:[email protected]... >>
    Someone, not just a caller, on the radio thought it would take a con. >>amendment to limit the terms of USSC members. Others have said it only >>take a statute, because one wouldn't be ending their careers as judges, >>just transferring them to a lower court.

    Did the first guy just not think of what the second choice relied on?

    What do you think?


    Many people on the radio have called the right to an abortion a >>constitutional right. Yes, they deduced it from reading the consitution >>but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment,
    2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of
    the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you >>think?


    I understand why Biden, who is probably disappointed that after 240
    years any changes are needed at all, might want to start "small" with
    the USSC topics he brought up today, term limits, binding ethics rules,
    and no immunity, and maybe he would save increasing the size of the
    court to 13 for later, after the court showed lack of cooperation and
    did more harm, including striking down new statutes that denied
    immunity, that restored to the agencies the power to make decisions,
    etc. But it seems to me that, given that nothing will get done until
    2025 at the earliest, early 2025 is the latest we should be undoing the >>mistakes of this court, and that would require adding 4 new members
    asap. What do you think?


    If there were 4 more members, would it be hard to rehear the worst >>decisions? For example, the immunity decision was about one case. The >>respective judges could let the other cases go forward, be contradicted
    by appeals courts that would enforce the USSC ruling, and then the >>prosecutors could appeal to the USSC which coudl overrule a a decision
    from only a year earlier. Right? What do you think?


    If there is a no immunity constituational amendment, won't trump argue
    that it's an ex post facto law and doesn't apply to his misdeeds? That's >>why we need 4 new members for the court.


    I always believe someone when they are talking, and often even longer,
    and when Roberts said a few years ago that times had changed so the DOJ >>didn't need to pre-approve changes to voting rules in states with a
    history of denying the right to vote to Black people (and whomever
    else), I believed it when he said it and nothing happeend to reverse
    that, even though I knew then he'd have to be either awfullly naive or
    very idealistic to think what he said the thought. Or both together.
    But I no longer believe naivete or idealism was what motivated him, at >>least not the ideal that racism had died away or racist people were now >>unwilling to act in a racist manner. The "ideal" that motivated him
    must have been, Let's keep the federal government out of state
    elections, out of state affairs --- even if that means Blacks get
    screwed out of exercising their rights.


    Regarding your first point, I think the view that the judges wouldn't lose >their jobs per se but merely get transferred to a lower court doesn't make >much sense since it assumes there are lower court openings available for the >displaced judges.

    The same law that takes them off the SC bench could create slots for
    them at the appellate level. I'm sure the current appellate judges
    wouldn't mind if they had less work to do.

    But you do remind me that all 9 live in the DC area and would likely not
    want to move. This seemed serious when I was't at the computer, but now
    (FWIW and not yet considering what you write next) it occurs to me that
    except when first implemented, there would only be one judge in this
    position at any one time. In fact, modifying my immediately precedign paragraph, other appointments to the appelate court could be lessened
    by one when they knew a USSC judge was soon going to be transferred.

    More importantly, the Constitution states that judges
    will hold their "Offices" during good behavior, which implies they hold the >job ("Office") they were appointed to, not just any available position in
    the court system.

    That sounds, like you say, more important, so I'll switch to John
    Levine's idea in the next thread, Supreme Court Term Limits. '-)

    Regarding the second point, if you're saying the only rights we can take
    from the Constitution are those that are spelled out explicitly, then I
    agree with that. I don't think they have to be specifically labeled as >"rights" necessarily, but they should be spelled out fairly explicitly. For >example, the 14th Amendments spells out pretty clearly the right of anyone >born in the USA to be a citizen of both the nation and the state where they >are born, but the word "right" is not used.

    I think that some justices have made the case more than once that some
    rights are more implied by the Constitution than spelled out directly - such >as the presumed right to privacy. Others would say that unless a right is >spelled out explicitly, it shouldn't be inferred. This is sort of the >essence of the abortion controversy. Roe v Wade asserts that the right to
    an abortion is implied by the Constitution. The decision last year says it >is not. It all depends on how you view the document. I personally think, >like any legal document, the document has to stand on the specific words >contained within.

    In my answer to Barry, I didn't go that far. I'd prefer that the default position was that anyone had the right to do anything, and the state had
    to show some good reason why people shouldn't. But failing that, I
    don't see any good alternative to recognizing implied rights. My
    complaint is about terminology, Constitution Right versus Based on the Constitution. But I also think mixing the two together has led to
    muddled thinking on the part of people I disagree with. (Maybe the
    people I agree with too, but I don't want to give them a hard time.)

    In cases like Griswold v. Connecticut, in another post in this thread
    (in reply to Barry?) I asked why the burden is not on the government and
    I see now in print what maybe I knew and forgot, that there is a
    doctrine soemthign like what I want, Rational Basis Review, https://en.wikipedia.org/wiki/Rational_basis_review which does require a legitimate state interest for a law to be iiuc consitutional. However, "Rational basis review tests whether the government's actions are
    "rationally related" to a "legitimate" government interest.[6][7] The
    Supreme Court has never set forth standards for determining what
    constitutes a legitimate government interest.[8] Under rational basis
    review, it is "entirely irrelevant" what end the government is actually
    seeking and statutes can be based on "rational speculation unsupported
    by evidence or empirical data".[9] Rather, if the court can merely
    hypothesize a "legitimate" interest served by the challenged action, it
    will withstand rational basis review.[10] Judges following the Supreme
    Court's instructions understand themselves to be "obligated to seek out
    other conceivable reasons for validating" challenged laws if the
    government is unable to justify its own policies.[11]"

    If legitimate state interest were given the importance I think it
    deserves, we would not have needed a "right of privacy" which iiuc only
    applies to (married?) couple's bedroom, and not the rest of their home.


    Regarding the third point, packing the court with four additional members >would require passage by both houses of Congress, which includes needing 60 >votes in the Senate to override a veto. That will not happen before 2025,
    if anytime soon after that, so I don't think you are correct that this might >be the easiest first step in Court reform.

    I know it's unlikely, but the alternative regarding immmunity** seems to
    be a Constitutional amendment and that is even more unlikely.

    **The Senate voted to end the filibuster for iirc judicial appointments.
    I'll bet they could end the filibuster for more specific things too,
    like 4 new SC members, like restoring the power of agencies (I can never remember the name of that), enforceable ethics code, and probably
    others. There have been so many bad decisions lately I can't remember
    them all.

    It's quite interesting that the only USSC justices with good judgment
    seem now to be a Puerto Rican woman, a Jewish woman, and a Black woman.
    All women, all "minority members".
    --

    --
    I think you can tell, but just to be sure:
    I am not a lawyer.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From Stuart O. Bronstein@21:1/5 to micky on Thu Aug 1 09:07:00 2024
    micky <[email protected]> wrote:
    "Rick" <[email protected]> wrote:
    "micky" wrote

    Someone, not just a caller, on the radio thought it would take a con. >>>amendment to limit the terms of USSC members. Others have said it
    only take a statute, because one wouldn't be ending their careers as >>>judges, just transferring them to a lower court.

    Did the first guy just not think of what the second choice relied on?

    What do you think?


    Many people on the radio have called the right to an abortion a >>>constitutional right. Yes, they deduced it from reading the
    consitution but it seems to me the phrase "Constitutional Right"
    should be limited to those that are specified, named, like those in
    the First Amendment, 2nd Amenmdnet, 5th,, 13th. If not, every case >>>decided on the basis of the Constitution would be establishilng a >>>constitutional right, and there are so many that that would
    trivialize the phrase. What do you think?


    I understand why Biden, who is probably disappointed that after 240
    years any changes are needed at all, might want to start "small" with
    the USSC topics he brought up today, term limits, binding ethics
    rules, and no immunity, and maybe he would save increasing the size
    of the court to 13 for later, after the court showed lack of
    cooperation and did more harm, including striking down new statutes
    that denied immunity, that restored to the agencies the power to make >>>decisions, etc. But it seems to me that, given that nothing will
    get done until 2025 at the earliest, early 2025 is the latest we
    should be undoing the mistakes of this court, and that would require >>>adding 4 new members asap. What do you think?


    If there were 4 more members, would it be hard to rehear the worst >>>decisions? For example, the immunity decision was about one case.
    The respective judges could let the other cases go forward, be >>>contradicted by appeals courts that would enforce the USSC ruling,
    and then the prosecutors could appeal to the USSC which coudl
    overrule a a decision from only a year earlier. Right? What do you >>>think?


    If there is a no immunity constituational amendment, won't trump
    argue that it's an ex post facto law and doesn't apply to his
    misdeeds? That's why we need 4 new members for the court.


    I always believe someone when they are talking, and often even
    longer, and when Roberts said a few years ago that times had changed
    so the DOJ didn't need to pre-approve changes to voting rules in
    states with a history of denying the right to vote to Black people
    (and whomever else), I believed it when he said it and nothing
    happeend to reverse that, even though I knew then he'd have to be
    either awfullly naive or very idealistic to think what he said the >>>thought. Or both together. But I no longer believe naivete or
    idealism was what motivated him, at least not the ideal that racism
    had died away or racist people were now unwilling to act in a racist >>>manner. The "ideal" that motivated him must have been, Let's keep
    the federal government out of state elections, out of state affairs
    --- even if that means Blacks get screwed out of exercising their
    rights.


    Regarding your first point, I think the view that the judges wouldn't
    lose their jobs per se but merely get transferred to a lower court
    doesn't make much sense since it assumes there are lower court
    openings available for the displaced judges.

    The same law that takes them off the SC bench could create slots for
    them at the appellate level. I'm sure the current appellate judges
    wouldn't mind if they had less work to do.

    It's a good idea. However the way the Constitution is drafted just
    doesn't support it. It creates the Supreme Court and allows for its
    members to be appointed, essentially for life. The inferior courts are
    treated separately.

    But you do remind me that all 9 live in the DC area and would likely
    not want to move. This seemed serious when I was't at the computer,
    but now (FWIW and not yet considering what you write next) it occurs
    to me that except when first implemented, there would only be one
    judge in this position at any one time. In fact, modifying my
    immediately precedign paragraph, other appointments to the appelate
    court could be lessened by one when they knew a USSC judge was soon
    going to be transferred.

    More importantly, the Constitution states that judges
    will hold their "Offices" during good behavior, which implies they
    hold the job ("Office") they were appointed to, not just any available >>position in the court system.

    That sounds, like you say, more important, so I'll switch to John
    Levine's idea in the next thread, Supreme Court Term Limits. '-)

    Regarding the second point, if you're saying the only rights we can
    take from the Constitution are those that are spelled out explicitly,
    then I agree with that. I don't think they have to be specifically
    labeled as "rights" necessarily, but they should be spelled out fairly >>explicitly. For example, the 14th Amendments spells out pretty
    clearly the right of anyone born in the USA to be a citizen of both
    the nation and the state where they are born, but the word "right" is
    not used.

    I think that some justices have made the case more than once that some >>rights are more implied by the Constitution than spelled out directly
    - such as the presumed right to privacy. Others would say that
    unless a right is spelled out explicitly, it shouldn't be inferred.
    This is sort of the essence of the abortion controversy. Roe v Wade >>asserts that the right to an abortion is implied by the Constitution.
    The decision last year says it is not. It all depends on how you view
    the document. I personally think, like any legal document, the
    document has to stand on the specific words contained within.

    In my answer to Barry, I didn't go that far. I'd prefer that the
    default position was that anyone had the right to do anything, and the
    state had to show some good reason why people shouldn't. But failing
    that, I don't see any good alternative to recognizing implied rights.
    My complaint is about terminology, Constitution Right versus Based on
    the Constitution. But I also think mixing the two together has led to muddled thinking on the part of people I disagree with. (Maybe the
    people I agree with too, but I don't want to give them a hard time.)

    In cases like Griswold v. Connecticut, in another post in this thread
    (in reply to Barry?) I asked why the burden is not on the government
    and I see now in print what maybe I knew and forgot, that there is a
    doctrine soemthign like what I want, Rational Basis Review, https://en.wikipedia.org/wiki/Rational_basis_review which does require
    a legitimate state interest for a law to be iiuc consitutional.
    However, "Rational basis review tests whether the government's actions
    are "rationally related" to a "legitimate" government interest.[6][7]
    The Supreme Court has never set forth standards for determining what constitutes a legitimate government interest.[8] Under rational basis
    review, it is "entirely irrelevant" what end the government is
    actually seeking and statutes can be based on "rational speculation unsupported by evidence or empirical data".[9] Rather, if the court
    can merely hypothesize a "legitimate" interest served by the
    challenged action, it will withstand rational basis review.[10] Judges following the Supreme Court's instructions understand themselves to be "obligated to seek out other conceivable reasons for validating"
    challenged laws if the government is unable to justify its own
    policies.[11]"

    If legitimate state interest were given the importance I think it
    deserves, we would not have needed a "right of privacy" which iiuc
    only applies to (married?) couple's bedroom, and not the rest of their
    home.


    Regarding the third point, packing the court with four additional
    members would require passage by both houses of Congress, which
    includes needing 60 votes in the Senate to override a veto. That will
    not happen before 2025, if anytime soon after that, so I don't think
    you are correct that this might be the easiest first step in Court
    reform.

    I know it's unlikely, but the alternative regarding immmunity** seems
    to be a Constitutional amendment and that is even more unlikely.

    **The Senate voted to end the filibuster for iirc judicial
    appointments. I'll bet they could end the filibuster for more specific
    things too, like 4 new SC members, like restoring the power of
    agencies (I can never remember the name of that), enforceable ethics
    code, and probably others. There have been so many bad decisions
    lately I can't remember them all.

    It's quite interesting that the only USSC justices with good judgment
    seem now to be a Puerto Rican woman, a Jewish woman, and a Black
    woman. All women, all "minority members".
    --




    --
    Stu
    http://DownToEarthLawyer.com

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  • From Stuart O. Bronstein@21:1/5 to micky on Thu Aug 1 09:06:36 2024
    micky <[email protected]> wrote:
    Barry Gold <[email protected]> wrote:
    micky wrote:

    Many people on the radio have called the right to an abortion a
    constitutional right. Yes, they deduced it from reading the
    consitution but it seems to me the phrase "Constitutional Right"
    should be limited to those that are specified, named, like those in
    the First Amendment, 2nd Amenmdnet, 5th,, 13th. If not, every case
    decided on the basis of the Constitution would be establishilng a
    constitutional right, and there are so many that that would
    trivialize the phrase. What do you think?

    You're forgetting the 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be >>construed to deny or disparage others retained by the people.

    Actually for me that wording makes my case. The enumerated rights
    seem to me to be the Constituational rights, and the others retained
    by the people are inherent rights or basic rights or natural rights or state-guaranteed rights, but not Constitutional rights.

    Actually no. It means rights given under English common law, which was
    still considered the law of the land when the Constitution was enacted.

    Rights based on the US Constitution but not enumerated in it, like
    abortion, birth control, privacy but also including some right
    inherent in every decision they make based on the US Constituion would
    not be Constitutional Rights, because it's better to be clear. I think
    it makes future discussions more likely to be productive. "Based on
    the Constitution" versus "enumerated in the Constitution. Repeating
    myself, I would save Constitutional Right for those enumerated.

    Right like marrying whom you like, having sex with whom you like and
    abortion are based on the concept of the right to privacy. While a
    general right of privacy is not spelled out, the First, Third and Fourth Amendments are about privacy issues. I don't think the Court was out of
    line to extrapolate and find the intention to have a generalized right of privacy.

    At the same time I think I asked here years ago, in different words,
    why the court had to find or create a right of privacy to find in
    Griswold. Why isn't it the case that in a free country -- and just
    about everyone likes to say we are or shoudl be a free country --
    everyone has the right to do anything unless the government can come
    up with a good reason why that something hurts someone else. Why is
    the burden not on the government to show that some act is harmful to
    others** and not on individuals to find something somewhere in the Constitution, which is not very long and not meant to include every
    specific thing, to hang on. **Not sure what they would do about
    suicide, which doesn't directly harm others, except in some cases
    maybe dependant children. When I was young, I thought laws against
    suicide were enacted to make it easier for police to investigate
    possible murders and attempted murder disguised as suicide. But
    eventually I realized that people really want to use the force of the
    state to stop suicide. Christianity (all branches I'm assuming)
    prohibits suicide and that might be the underlying basis in the minds
    of those who voted for the states to do so, but that's not a violation
    of the First Amendment. Christianity prohibits stealing and murder
    too, and I don't think those laws violate the First Amendment. And
    Judaism prohibits suicide and I'm a Jew and I take that seriously .
    But what Amnerican laws against suicide violate is the ideal that
    we're a free country with an inalienable right to liberty.




    --
    Stu
    http://DownToEarthLawyer.com

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  • From Rick@21:1/5 to micky on Thu Aug 1 13:42:04 2024
    "micky" wrote in message news:[email protected]...

    In misc.legal.moderated, on Tue, 30 Jul 2024 11:59:03 -0700 (PDT),
    "Rick" <[email protected]> wrote:

    "micky" wrote in message >>news:[email protected]...

    Someone, not just a caller, on the radio thought it would take a con. >>>amendment to limit the terms of USSC members. Others have said it only >>>take a statute, because one wouldn't be ending their careers as judges, >>>just transferring them to a lower court.

    Did the first guy just not think of what the second choice relied on?

    What do you think?


    Many people on the radio have called the right to an abortion a >>>constitutional right. Yes, they deduced it from reading the consitution >>>but it seems to me the phrase "Constitutional Right" should be limited
    to those that are specified, named, like those in the First Amendment, >>>2nd Amenmdnet, 5th,, 13th. If not, every case decided on the basis of >>>the Constitution would be establishilng a constitutional right, and
    there are so many that that would trivialize the phrase. What do you >>>think?


    I understand why Biden, who is probably disappointed that after 240
    years any changes are needed at all, might want to start "small" with
    the USSC topics he brought up today, term limits, binding ethics rules, >>>and no immunity, and maybe he would save increasing the size of the
    court to 13 for later, after the court showed lack of cooperation and
    did more harm, including striking down new statutes that denied
    immunity, that restored to the agencies the power to make decisions,
    etc. But it seems to me that, given that nothing will get done until >>>2025 at the earliest, early 2025 is the latest we should be undoing the >>>mistakes of this court, and that would require adding 4 new members
    asap. What do you think?


    If there were 4 more members, would it be hard to rehear the worst >>>decisions? For example, the immunity decision was about one case. The >>>respective judges could let the other cases go forward, be contradicted >>>by appeals courts that would enforce the USSC ruling, and then the >>>prosecutors could appeal to the USSC which coudl overrule a a decision >>>from only a year earlier. Right? What do you think?


    If there is a no immunity constituational amendment, won't trump argue >>>that it's an ex post facto law and doesn't apply to his misdeeds? That's >>>why we need 4 new members for the court.


    I always believe someone when they are talking, and often even longer, >>>and when Roberts said a few years ago that times had changed so the DOJ >>>didn't need to pre-approve changes to voting rules in states with a >>>history of denying the right to vote to Black people (and whomever
    else), I believed it when he said it and nothing happeend to reverse >>>that, even though I knew then he'd have to be either awfullly naive or >>>very idealistic to think what he said the thought. Or both together.
    But I no longer believe naivete or idealism was what motivated him, at >>>least not the ideal that racism had died away or racist people were now >>>unwilling to act in a racist manner. The "ideal" that motivated him
    must have been, Let's keep the federal government out of state
    elections, out of state affairs --- even if that means Blacks get
    screwed out of exercising their rights.


    Regarding your first point, I think the view that the judges wouldn't lose >>their jobs per se but merely get transferred to a lower court doesn't make >>much sense since it assumes there are lower court openings available for >>the
    displaced judges.

    The same law that takes them off the SC bench could create slots for
    them at the appellate level. I'm sure the current appellate judges
    wouldn't mind if they had less work to do.

    But you do remind me that all 9 live in the DC area and would likely not
    want to move. This seemed serious when I was't at the computer, but now
    (FWIW and not yet considering what you write next) it occurs to me that >except when first implemented, there would only be one judge in this
    position at any one time. In fact, modifying my immediately precedign >paragraph, other appointments to the appelate court could be lessened
    by one when they knew a USSC judge was soon going to be transferred.

    More importantly, the Constitution states that judges
    will hold their "Offices" during good behavior, which implies they hold
    the
    job ("Office") they were appointed to, not just any available position in >>the court system.

    That sounds, like you say, more important, so I'll switch to John
    Levine's idea in the next thread, Supreme Court Term Limits. '-)

    Regarding the second point, if you're saying the only rights we can take >>from the Constitution are those that are spelled out explicitly, then I >>agree with that. I don't think they have to be specifically labeled as >>"rights" necessarily, but they should be spelled out fairly explicitly.
    For
    example, the 14th Amendments spells out pretty clearly the right of anyone >>born in the USA to be a citizen of both the nation and the state where
    they
    are born, but the word "right" is not used.

    I think that some justices have made the case more than once that some >>rights are more implied by the Constitution than spelled out directly - >>such
    as the presumed right to privacy. Others would say that unless a right
    is
    spelled out explicitly, it shouldn't be inferred. This is sort of the >>essence of the abortion controversy. Roe v Wade asserts that the right to >>an abortion is implied by the Constitution. The decision last year says
    it
    is not. It all depends on how you view the document. I personally think, >>like any legal document, the document has to stand on the specific words >>contained within.

    In my answer to Barry, I didn't go that far. I'd prefer that the default >position was that anyone had the right to do anything, and the state had
    to show some good reason why people shouldn't. But failing that, I
    don't see any good alternative to recognizing implied rights. My
    complaint is about terminology, Constitution Right versus Based on the >Constitution. But I also think mixing the two together has led to
    muddled thinking on the part of people I disagree with. (Maybe the
    people I agree with too, but I don't want to give them a hard time.)

    In cases like Griswold v. Connecticut, in another post in this thread
    (in reply to Barry?) I asked why the burden is not on the government and
    I see now in print what maybe I knew and forgot, that there is a
    doctrine soemthign like what I want, Rational Basis Review, >https://en.wikipedia.org/wiki/Rational_basis_review which does require a >legitimate state interest for a law to be iiuc consitutional. However, >"Rational basis review tests whether the government's actions are
    "rationally related" to a "legitimate" government interest.[6][7] The
    Supreme Court has never set forth standards for determining what
    constitutes a legitimate government interest.[8] Under rational basis
    review, it is "entirely irrelevant" what end the government is actually >seeking and statutes can be based on "rational speculation unsupported
    by evidence or empirical data".[9] Rather, if the court can merely >hypothesize a "legitimate" interest served by the challenged action, it
    will withstand rational basis review.[10] Judges following the Supreme >Court's instructions understand themselves to be "obligated to seek out
    other conceivable reasons for validating" challenged laws if the
    government is unable to justify its own policies.[11]"

    If legitimate state interest were given the importance I think it
    deserves, we would not have needed a "right of privacy" which iiuc only >applies to (married?) couple's bedroom, and not the rest of their home.


    Regarding the third point, packing the court with four additional members >>would require passage by both houses of Congress, which includes needing
    60
    votes in the Senate to override a veto. That will not happen before 2025, >>if anytime soon after that, so I don't think you are correct that this >>might
    be the easiest first step in Court reform.

    I know it's unlikely, but the alternative regarding immmunity** seems to
    be a Constitutional amendment and that is even more unlikely.

    **The Senate voted to end the filibuster for iirc judicial appointments.
    I'll bet they could end the filibuster for more specific things too,
    like 4 new SC members, like restoring the power of agencies (I can never >remember the name of that), enforceable ethics code, and probably
    others. There have been so many bad decisions lately I can't remember
    them all.


    You seem to be assuming that all democrats would be willing to end the filibuster, but Joe Manchin has consistently opposed it, as has Kyrsten
    Sinema. I think there are also others like Mark Kelly that would need to be persuaded. Ending the filibuster would work great for democrats now, but I think many democrats realize that control of the Senate could very well
    switch to republicans in November. Many democrats know that a filibuster
    in place is something that will help them if republicans take control in November. I just don't see filibuster rules changing when the Senate is
    this close

    Also, on an issue like packing the Supreme Court, I think there are probably other democrats that would just oppose this in principle. And even if the
    law could somehow pass, do you actually think the Senate could fill four
    open positions that fast? It's more likely the slots could not be filled
    until 2025, and by that tie the Senate could be back under control of republicans. Are democrats going to take a chance on pushing a bill that
    could result in four additional republicans on the Court?


    It's quite interesting that the only USSC justices with good judgment
    seem now to be a Puerto Rican woman, a Jewish woman, and a Black woman.
    All women, all "minority members".

    I actually disagree with the popular view that there is a 6-3 conservative majority on the Court right now. I think the court is actually divided
    3-3-3, with three liberals (Kagan, Sotomayor and Brown), three conservatives (Thomas, Alito and Gorsuch) and three moderates (Roberts, Barrett and Kavanaugh). Keep an eye on Barrett. She may surprise you.



    --



    --

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