You’re not getting it. And I thought we were becoming close. Try not to take ourselves too seriously. I think the world would be a better place.
I didn’t say it wasn’t funny just don’t let me see you spouting that “I’m an adult” crap in another thread like you’re better than the rest of us heathens. Ok sorry for the interruption please feel free to resume your trolling
Except the analogy to federal judicial review doesn't fall apart. The Supreme Court granted itself the power of judicial review. But that doesn't change the fact that the state legislature is still constrained by the state constitution and thus the state court's decisions interpreting it. The Elections Clause didn't create some new unaccountable entity. A state legislature can no more free itself of the chains of its state constitution than Congress can free itself of the chains of the U.S. Constitution. As Chief Justice John Marshall said in Marbury v. Madison: "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void." Yeah, except it's only consistent with the "plain text" if you ignore what a state legislature is. Your reading requires freeing a state legislature from the state. And if you concede that the procedural limitations apply, you've abandoned the "plain text" argument you're trying to make right now. No, because that wouldn't explain the process they have to use.
Man, you two really know your stuff. I should have paid more attention in ConLaw. Despite all the fine points, I come away with the belief that the Supreme Courts at the federal and state levels have authority to review the constitutionality of any legislative act under the constitution governing that legislative body.
So he new a year before the election that Trump would win? That's impressive! Maybe he can give me some lottery numbers.
Nope. He simply was willing to blow up norms and send us even further down this road to destruction in order to gamble that a Republican would win, despite Garland being a consensus choice who had been championed by Republicans in the past.
I believe @gator_lawyer considers him one of the greatest judges/justices of the last 100 years at least. If he does not consider him ideologically driven while simultaneously considering this entire Supreme Court ideologically driven, frankly, I just would consider him less credible because that's just a ridiculous statement. If he does consider him ideologically driven, why is he put on such a pedestal? Are ideologues okay on the Court provided that there is balance? What is balance? Who gets to decide balance? Is it 4-4 with a swing vote? Is it 5-4 with a party clearly having a slight advantage?
I understand how those words mean different things, but for purposes of this discussion what's the difference and why does it matter? It seems to me that often-times an ideologically driven court will have the same outcome as a politically driven court provided that the politics follows the ideology and not the other way around.
Originalism is an ideology. A dedicated originalist will follow originalism even when it doesn't produce the political outcomes he/she wants to achieve. Living constitutionalism is also an ideology. A dedicated living constitutionalist will also follow their ideology when it doesn't produce political outcomes he/she wants to achieve. That's how judging should work. A politically driven court is different. They're looking to achieve political results, instead of ideological results. (Granted, there is some overlap. Because political results are often ideological. But when I speak of ideology, I mean legal ideology, not political ideology.) That will lead to a lack of a coherent legal ideology. It will lead to results that are very obviously incongruous with the judge's purported principles. It will lead to shoddy work. Because you can only do so much to cover up the flaws in your arguments when you're trying to achieve an outcome rather than letting a coherent ideology dictate the outcome. Now, humans are imperfect. Humans are flawed. Humans have biases and blind spots. That means that nobody is immune to hypocrisy. Nobody will adhere to an ideology 100% of the time. It's just our reality. But you can still tell when people are actually trying to be fair. That isn't happening today.
Okay, there's been four controversial decisions (that I know of) over the last few weeks under this SCOUTUS. Which of those definitively did not fall in line with originalist ideals? It's not enough to say that they are politically convenient outcomes. EDIT: I genuinely appreciate the good faith engagement.
Arguably all of them. But we'll put aside Bruen, as one could make an argument for it. (One could also make a strong argument against it.) Dobbs and West Virginia v. EPA aren't originalist decisions. Of course, Alito and Roberts aren't known as originalists. I wouldn't classify Kennedy as an originalist decision, as much as Gorsuch tries to dress it up as such in some places. Additionally, Cruz v. FEC is a case that clearly isn't an originalist opinion. It's more of a living constitutionalist opinion. The original meaning of Free Speech Clause in the First Amendment was far narrower than it is today. Of course, I vastly prefer the modern interpretation. Although, I'd roll things back to where they were prior to Citizens United on campaign finance reforms. Anyways, I'm going off on a tangent. I imagine you're going to disagree with me on Dobbs. But a number of scholars, including originalist scholars and conservatives, have also pointed out that it's not an originalist opinion. A Victory for Originalism? The mistake people make is thinking that talking about history and tradition means originalism. But the Glucksberg test (basis of Dobbs) isn't really originalism. Originalism seeks to find the original public meaning (at least the most dominant form of originalism today) of the constitutional provision at issue. That wasn't the mode of analysis used by Alito. He basically asked was the right to abortion widely recognized around the time of the ratification of the 14th Amendment. Of course, originalists would say that they agree with the outcome in Dobbs. And, as I mentioned, Alito isn't known for being an originalist. So Dobbs isn't really the case to argue over, frankly. I'd say First Amendment jurisprudence, qualified immunity, and administrative law (particularly major questions and nondelegation) are the best examples of the originalists not following originalism.
It's worth highlighting what this Republican Supreme Court has done to democratic rights over the past decade and plans to do to democratic rights in the near future. I won't even assume that they're adopting the "independent state legislature doctrine" to empower Republican legislatures to overturn elections. 1. Shelby County v. Holder - Gutted the Voting Rights Act's preclearance regime that stopped states and localities with a higher of racial discrimination from having to ask the federal government to approve new voter suppression measures. 2. Rucho v. Common Cause - Held partisan gerrymandering to be nonjusticiable, removing any opportunity for persons harmed by partisan gerrymandering to seek recourse in federal court under that theory. 3. Brnovich v. DNC - Gutted Voting Rights Act's protection of minority voters from discriminatory state and local election laws 4. Merrill v. Milligan - Court will decide case next term. It will likely gut the Voting Rights Act's protections against racist gerrymanders that dilute minority representation. 5. Moore v. Harper - Court will decide case next term. It will likely apply the fictional "independent state legislature doctrine" to allow state legislatures to ignore the anti-gerrymandering protections in their state constitutions and possibly state redistricting commissions. Killing all protections at the state level as applied to Congressional maps. 6. TBD - Assuming I'm right about Moore v. Harper, the Court will apply the fictional "independent state legislature doctrine" in some future cases more expansively to the Elections Clause and to the Electors Clause. That will allow the Republican Supreme Court to reverse any decisions from state courts applying state law to provide broader voting rights protections than federal law and the U.S. Constitution in federal elections. (Currently, the Supreme Court cannot reverse state courts' interpretations of state law.) I hope that makes clear exactly what is happening here and why this Supreme Court is a clear and present danger to democratic rights, even if it doesn't allow Republican legislatures to overturn elections they're candidate lost. (If it does allow that, that is obviously even more damaging than all of the bad stuff on this list.) The Republican Supreme Court is going to destroy all protections we have against gerrymandering, and it's absolutely destroying protections for minority voters in this country. What's also significant is this Supreme Court's quest for expanding its power. The EPA case it just decided drastically expanded its power over federal administrative policy. The federal judiciary now essentially has a veto. The "independent state legislature doctrine" would also give the federal judiciary a veto over state court decisions protecting voting rights and over state law restraining gerrymandering. I don't think it's any coincidence that this partisan "Court" wants to have vetoes over executive policy and state election law. This group is a threat to democracy.
