June 25, 2015, 03:00 PM | #1 |
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"Inartful wording..."
That's how Chief Justice Roberts dismissed the latest challenge to the ACA's controversial phrasing. Without further weeping and gnashing of teeth, suffice it to say the Supreme Court made it clear that Obamacare - now SCOTUScare - was simply too big to fail, and unless the Congress and the President repeal the whole darn thing, it's here to stay. America voted for Democrats, America demanded bankruptcy and decline, an end to our "Exceptionalism," and our power, and replacing opportunity with free lunch. America got it. Quitrcher bitchin'. End of story.
But here's the real problem with this ruling. And it's aimed squarely at the Second Amendment. The Court made it clear that the actual words of a law mean nothing whatsoever anymore. Intent is everything, incompetence in drafting notwithstanding, and it will be the Court that determines intent. If there is any controversy regarding the wording of a law (or a Constitutional Amendment) the Court will decide the issue politically and not judicially. The silly and inconvenient notion of being "a nation of laws, not of men" is now history. Behold now the Second Amendment. Never has the wording of anything been so controversial, so easily misunderstood - deliberately or innocently. As laws go, the Right To Keep and Bear Arms is surpassingly opaque. Ask a conservative, a moderate, and a liberal what it means, and you're likely to get 3 different answers. Never mind what it actually says, never mind the rules of grammar and sentence structure - we're way past that nonsense now. A future Court may, and probably will, rule that the great (bogus) goal public safety, like the ACA, is also too big to fail, that the Second Amendment is simply "inartful wording" and dismiss it. |
June 25, 2015, 03:04 PM | #2 |
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Oh, yes, SCOTUS decided that it had the final authority to rework poorly written law to suit its whims. Basically, Roberts et al. said the clear and unambiguous meaning of the wording in a law wasn't terribly relevant if they could rework it to wording more closely aligned to its desires. And, absurdly, it claimed the preternatural ability to divine Congress' intent in crafting legislation. Today is a truly black day for jurisprudence.
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June 25, 2015, 03:14 PM | #3 |
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I’m not an attorney, but it does seem that they ignored the actual wording and focused on the intent of the law. However, doesn’t that work to our advantage? I can’t imagine that the intent of the Founding Fathers was for the citizenry to be denied the right to keep and bear arms. I also think we have to realize there always have been and always will be parameters that we exercise our rights within. Obviously the big debate is what exactly those parameters are.
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June 25, 2015, 03:20 PM | #4 | |
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This wasn't really a decision about the constitutionality of ObamaCare, it was a decision about rewording specific language within it in order NOT to strike down an (ostensibly) poorly worded law. In other words, SCOTUS afforded itself the opportunity to be lawmakers. Lawmakers with no authority to do so, and no checks and balances upon them. |
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June 25, 2015, 03:20 PM | #5 |
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"The Court made it clear that the actual words of a law mean nothing whatsoever anymore. Intent is everything, incompetence in drafting notwithstanding, and it will be the Court that determines intent. If there is any controversy regarding the wording of a law (or a Constitutional Amendment) the Court will decide the issue politically and not judicially."
Yep, I agree. Just how far they'll go with this interpretation applying it to the 2A will be interesting to say the least. Sad....really sad. ETA: We're screwed. |
June 25, 2015, 03:22 PM | #6 |
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And, further, it may not be the intent of SCOTUS to do this, but in its short-sightedness, it has effectively imposed the same duty upon lower courts to divine legislative intent in a law and rework it if the legislative intent isn't statutorily or constitutionally permissible.
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June 25, 2015, 04:42 PM | #7 | ||
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The potential legal issues are what concerns us. And boy, should they. I don't think I've read more chilling words from the Court in modern times: Quote:
A lot of terrible gun laws deserve to be overturned because they violate the plain language and "most natural reading" of the 2nd Amendment. Heller and McDonald were decided along those very lines. Now those lines have been erased.
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June 26, 2015, 06:09 AM | #8 | |
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King v Burwell is just more of the same, except, now it is the official line instead of a temporary aberration. |
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June 26, 2015, 08:13 AM | #9 |
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It's official now. SCOTUS is political.
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June 26, 2015, 08:44 AM | #10 |
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It's been political ever since the Senate refused to confirm Robert Bork. This is nothing new.
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June 26, 2015, 09:11 AM | #11 | |
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June 26, 2015, 10:14 AM | #12 | |
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Personally, I feel it's a bad precedent b/c it a decision made on arbitrary grounds that interprets/forces interpretation to a poorly written piece of legislation. The precedent of action (if not jurisprudence) would be that the court can now just make up meaning to words to satisfy whatever whims they wish to satisfy, be they social, legal, moral or un-intended. As a former English teacher, it just rankles my soul. I actually sympathize with the goals of the ACA and would love to see a well-written, well-structured, well-quantified ACA put into place. Unfortunately, this isn't it. Although I'm for the goal, I knew when Nancy Pelosi said "We have to pass it to see what's in it" that I was going to be enemies with the law that passed. Every high school student whose ever written a paper thinks they know what's in their paper. If the student expresses his/her thoughts poorly, then the student needs to accept a poor grade or re-write the paper until what they "know" is actually expressed. If your job is to write legislation and you can't write your legislation clearly enough to make it coherent, then you, like a high schooler who has written a poorly done paper, need to re-write your work. This was SCOTUS' moment to stand for standards and they fumbled. It disappoints me immensely.
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June 26, 2015, 11:14 AM | #13 | |
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It certainly became political to the detriment of it's legal/constitutional function following the invalidation of the NRA (not our NRA, but the National Recovery Act). The Court is going to draw on the political culture to one degree or another, and the other two branches of government had a deep desire to grossly expand the scope of federal government. The unsubtle politicization that occurred in the Bork nomination made the Court political in yet another way; the Senate voted against Bork because they didn't like the way they thought he would end up on a number of issues. They didn't hide their political decision behind a façade of concern about constitutional doctrine (except for Arlan Spectre, whose performance deserved all the contempt it got). Lots of Senators just didn't like the winners and losers they saw at the end of Bork's pen. It is application of naked electoral politics to the choosing of justices. The decisions of the last couple of days point to another very political development; in opinions that conspicuously disregard text and long held doctrine, the Court gets to where it wants to end up and puts up very little in the way of window dressing to conceal its result oriented jurisprudence. One can argue about who benefits from that politically, but the Court ultimately loses the influence it would properly have from a sense that it stands apart from or above electoral politics.
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June 26, 2015, 11:50 AM | #14 | |
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I wonder, if it ever comes to it, how SCOTUS would redefine the intent of those words?
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June 26, 2015, 01:29 PM | #15 |
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What I found odd is that Roberts ignored the actual wording on the Affordable Care Act and went with what he thought the intent was and then today with the Gay Marriage ruling, he went the exact opposite way and said that the wording mattered. He seems to rule to get the result he likes and the words don't matter.
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June 26, 2015, 03:12 PM | #16 | |
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June 26, 2015, 04:02 PM | #17 | |
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There were four dissenting Justices. Scalia, Thomas, Alito and Roberts. All four dissenting Justices wrote an opinion. That is almost unheard of. For the first time, in his Court, Roberts read his dissent in open Court. That, and that alone, is noteworthy. |
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June 26, 2015, 04:35 PM | #18 | ||
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Scalia's dissent is interesting, and I hope it's not prophetic:
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Let's not forget it took a Herculean amount of handwringing to get the RKBA barely recognized by them, and that's an enumerated right.
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June 26, 2015, 07:43 PM | #19 | ||||
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Despite the [flowery] language of the majority opinion, I find these quotes from the dissents instructive.
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June 26, 2015, 09:53 PM | #20 |
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Almost makes you wonder why the four did not refuse to participate once they saw what the majority had planned. A 5-0 decision would reflect the abnormal nature of the ruling very effectively.
"What concerns us is...what the heck is going on with SCOTUS?" I found a refresher on the history before, after, and behind the scenes during the Dred Scott v. Sandford ruling highly interesting with regards to Burwell. Scalia likes to bring up Scott as a pejorative, but the types of justifications for a tortured readings, the (at the time, but later explained by direct Executive interference) odd nature of the ruling found by one of the judges, and the extreme political & economic fallout at stake echo as much as history ever does. Can we marry gun corporations, now? Colt seems like it could use some love. TCB
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June 26, 2015, 10:12 PM | #21 | |
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I started out with the same thought -- if they can interpret the language of TACA to mean the opposite of what it says because of "intent," then they can also interpret the 2A based on its intent. The problem is, it only takes five justices who believe (or claim to believe) that the intent was to arm the militia, and the 2A is toast. In the long term, it is far better (IMHO) for words to have meanings and for laws to be interpreted according to what they say, rather than what a judge or group of judges want them to say. |
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June 27, 2015, 05:06 AM | #22 | |
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Thomas is also underrated, imo. He doesn't indulge himself with the sort of flourish Scalia does, but he is impressively direct, which carries a power of its own. His dissent in Raish, the thrust of which is this is what interstate means, and this is what commerce means, and this case isn't about either of those serves to show how far from the text the Court's interstate commerce doctrine has wondered. He didn't win, but his illustration of why he became part of the ongoing conversation. I wouldn't like to have missed this dissenting opinions.
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June 27, 2015, 09:43 AM | #23 |
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Al,
[Roberts and Scalia whining about SCOTUS activism] So Brown v. Board of Education, and Loving v. Virginia, should have been decided differently? After all, those forced integration down everyone's throat, removing that decision from the democratic process. Why not let the states that wanted to be patently racist continue to be so? Plessy and Pace had established, the century before, that, even post-reconstruction, there was no such right to be found in the Constitution. Where did the court find one in Brown and Loving? [Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere. [Alito: " deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."] If that's so, perhaps the SCOTUS should have a separate bench and separate bathroom for Thomas. Maybe they should employ children in 14 hour shifts to do some of the menial work that their overqualified law clerks have to do at present. The court has swung wildly to the side of activism from time to time since FDR's court packing scheme. But they've also pushed social reforms that may not have happened nation-wide any other way. Maybe the social benefits aren't clear, because old habits and biases die hard, but I think there's a seriously up-hill battle trying to argue that many of these kinds of decisions weren't justified on the basic principle of equity. I don't think any of the liberal justices would object to a law redefining and narrowing the marriage license, or creating an alternatively-named license, specifically for when a couple has or adopts a child, rather than before, explicitly spelling out child support and spousal support terms so that family courts can stop having to make such arbitrary and questionable decisions. The rest of the pro-hetero-marriage arguments are just some hand-waving about indeterminate social ramifications and, underlying it all, a strong desire to have the majority's religious beliefs keep defining marriage. I think Chemerinsky wrote a good defense of the majority, regardless of what you think about his personal politics: http://www.scotusblog.com/2015/06/sy...-civil-rights/ All you need to agree with this decision is that, as the SCOTUS has repeatedly stated, marriage is a fundamental right. Strict scrutiny is a high bar that you can't meet with hand-waving and rhetoric about respect for tradition. It seems to me that the only way to meet it is to restrict marriage explicitly to child-rearing. That would not do what the conservative minority of the Court wants, either, since LGBT individuals can already adopt, and since it's legal for hetero couples to have children out of wedlock. Where would the Court's dissenting minority manufacture a compelling purpose for heterosexual-only reproduction licenses in light of those existing realities?
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June 27, 2015, 10:40 AM | #24 | ||||||
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If a subjective sense of due process can invalidate a conventional state law, can a person also have a due process right not to be under constant threat of armed fellow citizens?
If a piece of federal law, the ACA, can be rescued from its own text by reasoning that Congress couldn't possible have meant what it wrote, what protection do the words of the 2d Am. provide? Quote:
The Court here appears to have sidestepped that consideration with a due process rationale. Quote:
Noting that the recent case is distinguishable from Loving because Loving involved a prohibition on freedom to act based on race is not trivial. In that case, the couple could not legally cohabitate. No such restriction is present in the current case. Quote:
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The problem for 2 Am. analysis that is presented by vague notions of equity or fairness or emotionally driven judicial results is that accepting that kind of free form jurisprudence serves to diminish the protection of an explicit right; it detaches the constitutional court from constitutional text and doctrine.
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June 27, 2015, 11:21 AM | #25 | |
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I agree with Tyme.
Here's what I said elsewhere: Quote:
As I said above and before, Scalia is not an icon for me. His reasonable restriction blather is used strongly against us. His emotion this time is just that - emotion based on an underlying belief structure. I disagree with it. We should take this opportunity to say that expansion of individual rights and removing the state from personal decisions (that do no overt harm) is to be celebrate. The 4 liberal justices have a gut oppostion to guns. The 4 conservative justices have a gut opposition to gays. That's what focuses how they decide. Kennedy has been seen as one who thinks about things a touch more deeply and also relishes his position as swing on the major issues. Push the individual freedom. Folks who want to constrain adult behavior in one dimension and then wander around the mall with an AR-15 need to rethink the issue of control.
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