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Old September 3, 2018, 02:01 PM   #1
Glenn E. Meyer
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SCOTUS voting pattern

https://www.nytimes.com/2018/09/03/o...-partisan.html

Piece argues that SCOTUS justices vote their politics and views. So are they useful anymore if both sides just want justices who are known already to decide in a specific manner?

The risk for the RKBA is whether 'conservative' justices understand the nature of the RKBA as the committed (most of us) view it. If not, then support of states' increasing restrictions will be supported.

The flip side is that pro-abortion (not to discuss the merits of that issue) see the problem in the same manner.

Justices will vote their politics and social viewpoint and may let the 'right' under question be whittled away at the state levels.
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Old September 3, 2018, 02:32 PM   #2
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What bothers me deeply, is that like Gerrymandering, its gone so far its no longer a balance.

If you can predict how someone is going to vote, then its no longer Justice and as reasoned a view as you can on some very complex subjects, but a deep bias.

Dredd Scott and the Interment of American of Japanese ancestry in WWII come to mind (and that interment was finally condemned by Roberts in trying to support another piece of twisted reasoning in supporting the travel ban case).

What I respect is a reasoning that has a well founded logical is not twisted into a pretzel no matter what my view.

I detested Miranda at the time, but I could see the reasoning and as time has passed and more and more supporting evidence of police and prosecutors willing to convict someone just to convict - its become clear it was a stain on our values.

Citizens Dis-United? Like a lot of rulings, there is no logical basis let alone any mention in the Constitution of that so called right (but like Dred Scott it is the law of the land now)

Eminent Domain used to build a hotel? Flimsy as a negligee.

I stand with the man who said about Gerrymandering.

I don't care if its a Republican District or a Democratic district, I want the boundaries drawn as fairly as we can achieve and let the chips fall where they may.

50 years from now if the demographics drive it where it looks like its going that all gets overturned and it goes the wrong way the other way.

Note the Supremes interfering in an election when they had no legal authority to do so.
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Old September 3, 2018, 03:58 PM   #3
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The premise is that SCOTUS like most people vote their politics and their views. I think the premise is correct.

The court is made up of 7 millionaires. Only Judge Thomas is not. If Kavanaugh is approved it will be 8 millionaires.

The court is made up of three law schools: Columbia, Harvard and Yale. Kavanaugh will make 4 for Yale and 4 for Harvard. Not so sure that RKBA is fundamental in that world.

Nineteen states have never had a Supreme Court Justice: Arkansas, Florida, Oklahoma, West Virginia, Delaware, Rhode Island, Vermont, Wisconsin, North Dakota, South Dakota, Nebraska, New Mexico, Nevada, Idaho, Montana, Washington, Oregon, Alaska & Hawaii. Kavanaugh is from Washington DC.

Kavanaugh has only been reversed by SCOTUS once. His position has been consistent support for Corporations as opposed to the fundamental rights. I am very concerned about his RKBA stand. He is characterized as a Stalwart Originalist, whatever that is.
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Old September 3, 2018, 05:23 PM   #4
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An "originalist" is a legal scholar who believes that the constitution should be interpreted and administered as the "original" writers intended it to be. It should not be a "living document" that changes meaning with every generation.

So far, I see no good reason to distrust Kavanaugh. Read a few of the opinions written by Breyer, Sotomayer, Ginsberg and Kagan.

Compared to them, Kavanaugh will look like a gift from G-d.
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Old September 3, 2018, 05:30 PM   #5
Bartholomew Roberts
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I think the general premise of the article is flawed, and not just a bit biased. You’ll note that Democratic presidents have rarely had much surprise from their appointees, yet that wasn’t mentioned or discussed in an article that purports to discuss the historcal trend of the Court’s voting. One reason for that is because until the mid-1990s, Congress was historically Democrat-controlled. The need to get Senate approval from a Democrat-controlled Congress also explains the higher number of “evolutions” from Republican appointees.

Second, the article completely ignores where Justices have remained consistent to their principles even when it had a “surprise” vote result based on conventional views of Dem/Rep or conservative/progressive. Ruth Bader Ginsburg has made pro-gun votes. Thomas and Scalia both made votes restraining the authority of law enforcement. During the Obama administration, the Court made several unanimous decisions.

The article takes an extremely narrow view and basically scores votes on a few issues such as gun control, abortion, etc. However, these hot button issues are not particularly hard to predict if you are familiar with a justice’s philosophy on making rulings. Between that and painting a rosey, golden-hued era past where Justices are not like today’s nasty political justices, it strikes me more as thinly veiled propaganda than any type of information.

Also, a good discussion on originalism, strict constructionist, and textualism and how they differ in legal theory because I see people using these terms interchangeably. Textualism is THE dominant philosophy among both progressive and conservative judges and justices. That’s a reflection on Scalia’s work to promote textualism.

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Old September 3, 2018, 06:53 PM   #6
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Quote:
Originally Posted by RC20
What I respect is a reasoning that has a well founded logical is not twisted into a pretzel no matter what my view.

I detested Miranda at the time, but I could see the reasoning and as time has passed and more and more supporting evidence of police and prosecutors willing to convict someone just to convict - its become clear it was a stain on our values.

Citizens Dis-United? Like a lot of rulings, there is no logical basis let alone any mention in the Constitution of that so called right (but like Dred Scott it is the law of the land now)
The logic of the court in the Citizens United decision was prominent. The 1st Am. doesn't permit Congress to outlaw some kinds of speech based on the content and identity of the speaker. There is no pretzel making in taking "Congress shall make no law...abridging the freedom of speech" to strike part of McCain-Feingold that did precisely that.


Kaplan's thesis seems simple, but also misguided. Of course we can imagine how a justice with a well and publicly developed constitutional philosophy may land on any specific issue, but that can just mean that the philosophy is sufficiently coherent. Reducing that to how a justice would vote based on which president appointed him is thin on insight. Was Scalia such a defender of the rights of criminal defendants because that was Ronald Reagan's burning passion? Did Thomas write the minority in a MJ prosecution because RWR loved weed?

Kaplan posits Bush v. Gore as an example of the problem of political intervention by the court. He doesn't note that the decision was 7-2, and that it was the FL Sup Ct who wrote a howler of a decision that departed from FL election law, the Gore campaign having limited a recount to counties it selected. It's hard to read Kaplan's complaint about a noble past when the political independence of the court cold be taken for granted without thinking of the Court's capitulation to extensive federal regulation of intrastate commerce. The irony of Kaplan's complaint about political intervention from the court is that it is a political thesis itself, not a jurisprudential one.


I understand not liking the way a case is decided. I note that simple generalizations about why a justice votes one way or the other don't always survive scrutiny.

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Old September 3, 2018, 07:58 PM   #7
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If Justices only vote their politics in this day and age of bitterly divisive politics, how come the largest percentage of SCOTUS decisions are unanimous? Since 2000, it's 36%, according to the Post, and in the 2016-7 term, it was 57 percent unanimity, with 5-3 and 5-4 splits only 14 percent.

Also interesting is how this article isn't coming out during the previous administration, when Sotomayor went before the Senate Judiciary Committee and swore that Heller was settled law, the 2A was very important to her, then she promptly voted against McDonald. I must have missed her dissent on the evils of substantive due process...

The author would have some credibility if (s)he at least compared the predictive results from a political explanation versus one resting on their personal philosophies of constitutional and statutory interpretation.

Instead we get "Now that conservatives are on the verge of locking down control of the court, they can’t wait for the court to ..."

Forgive me if I doubt that the author has mind-reading powers, and knows just how eager the Court's conservatives are about anything.
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Old September 4, 2018, 12:07 PM   #8
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An "originalist" is a legal scholar who believes that the constitution should be interpreted and administered as the "original" writers intended it to be. It should not be a "living document" that changes meaning with every generation.
That would be wrong

An originalist is someone who interpret the constitution to suit their ends while attempting to chaff and flare under the guise of the term Oringinilist.

Corporations have no standing what so ever in the Constitution but Originalist gave them that based on?

https://www.npr.org/2014/07/28/33528...egal-evolution
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Old September 4, 2018, 12:41 PM   #9
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Corporations have no standing what so ever in the Constitution but Originalist gave them that based on?
The 1st Am.
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Old September 4, 2018, 05:07 PM   #10
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Quote:
Originally Posted by Ben Dover
An "originalist" is a legal scholar who believes that the constitution should be interpreted and administered as the "original" writers intended it to be. It should not be a "living document" that changes meaning with every generation.

So far, I see no good reason to distrust Kavanaugh. Read a few of the opinions written by Breyer, Sotomayer, Ginsberg and Kagan.

Compared to them, Kavanaugh will look like a gift from G-d.
Kavanaugh may look good on the 2A, but IMHO he hasn't looked very good on the 1A. I would have preferred a nominee who is truly a strict constructionist -- and I'm not sure if "originalist" and "strict constructionist" are one and the same.
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Old September 4, 2018, 07:05 PM   #11
Bartholomew Roberts
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Quote:
Originally Posted by RC20
Corporations have no standing what so ever in the Constitution but Originalist gave them that based on?
Corporations pre-date the Constitution by centuries, as do the laws around them. Corporations are nothing more than groups of men governed by a charter (constitution) that they all voluntarily accept. Are you saying only individuals, and not groups, have standing under our Constitution? If that is true, then what are the implications for: Greenpeace, World Wildlife Federation, American Red Cross, any labor union, news organizations, etc.?
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Old September 4, 2018, 08:35 PM   #12
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Quote:
Corporations pre-date the Constitution by centuries, as do the laws around them. Corporations are nothing more than groups of men governed by a charter (constitution) that they all voluntarily accept. Are you saying only individuals, and not groups, have standing under our Constitution? If that is true, then what are the implications for: Greenpeace, World Wildlife Federation, American Red Cross, any labor union, news organizations, etc.?
Agreed.

RC20 --- do a little research into the Hudson Bay Company and the Virginia Company and their roles in the settlement of North America.

Also consider that a corporation is simply a group of people united for some common goals. Most have profit in mind, but others have altruistic goals. A labor union is another form of corporate association with a vital First Amendment role. Indeed, both the Republican and Democratic parties are non-profit corporations. They provide both monetary and non-monetary support for their candidates and implicate both freedom of speech and freedom of association.

Finally, it's safe to say that almost all news media are corporations. Should we curtail their rights under the First Amendment simply because of their financial structure?
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Old September 4, 2018, 08:46 PM   #13
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I'm not sure if "originalist" and "strict constructionist" are one and the same.
I think there is some overlap but the terms are not interchangeable. I recall a concurring or dissenting opinion by Justice Scalia saying that being physically pilloried (I think that was the punishment) would not be cruel and unusual punishment under the Eighth Amendment because it was in common use at the time the Constitution and Bill of Rights went into effect. This is an originalist's viewpoint. A strict constructionist would uphold a form of punishment that was currently being used in at least some states. He or she would not let their personal distaste for the punishment guide them.

Even Scalia was not always 100% originalist but he came the closest, probably followed by Justice Thomas.
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Old September 4, 2018, 09:01 PM   #14
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Quote:
Originally Posted by Bartholomew Roberts
Corporations pre-date the Constitution by centuries, as do the laws around them. Corporations are nothing more than groups of men governed by a charter (constitution) that they all voluntarily accept. Are you saying only individuals, and not groups, have standing under our Constitution? If that is true, then what are the implications for: Greenpeace, World Wildlife Federation, American Red Cross, any labor union, news organizations, etc.?
True.

And there are a lot of different corporations. One's dentist or dry cleaner might well be a corporation. Our little group of instructors putting on monthly Basic Handgun classes is a corporation (with annual revenues on the order on the order of $10,000 +/-).

It is a form of organization in which the organization has an incorporeal existence distinct from the people who own or manage it. It is one of several ways in which a group of people can associate to do things, and as such the corporate form is a tool which can be used when its attributes serve the purpose of those using it.
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Old September 5, 2018, 07:55 AM   #15
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Also, the law challenged by Citizens United, McCain-Feingold, included criminal penalties. Corporate officers can answer for a corporation's criminal acts.

One of the issues presented in Citizens United is whether the federal government can charge a person with a crime for having said or written something in cooperation with others with whom he has associated in a corporation. Aside from the threat of a federal criminal record, the mere threat of federal prosecution for having spoken or written is chilling and runs afoul of the 1st Am.

RC, I will not tell you that the decision in Citizens United is a breezy read, but I would encourage you to give it a try. What people displeased with a decision write about it is routinely irreconcilable with the decision itself. You've no obligation to conclude that the Court reached the correct result in any particular case, but reading the case can make you a more discriminating consumer of secondary materials.

http://www.scotusblog.com/case-files...on-commission/

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Old September 5, 2018, 12:48 PM   #16
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We no longer have an original constitution in ways that matter significantly to SCOTUS (elected Senators, for example) nor do we have, on the left or right (but especially the left), an originalist view of what a "right" even is (internet and cell phones? Really?)..... plus the fact that the average scotus justice probably lives on the court nearly 20 years longer that the founders could have ever anticipated.... plus that we lost the originalist view on a great many issues decades ago (Wickard v. Filburn, as just one example among many) and I don't think it even makes sense to believe that any SCOTUS individual or collective will vote anything but their "politics and views".
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Old September 5, 2018, 03:59 PM   #17
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Originally Posted by Brian Pfleuger
We no longer have an original constitution in ways that matter significantly to SCOTUS (elected Senators, for example) nor do we have, on the left or right (but especially the left), an originalist view of what a "right" even is...
But just for a little perspective, from The Wall Street Journal, "The Culture That Sustains America’s Constitution", 2 July 2018:
Quote:
Since 1789 the average life span of national constitutions world-wide has been 19 years, according to scholars at the University of Chicago. Meanwhile, “We the People of the United States” are now well into the third century under our Constitution. We’ve lived under the same written charter longer than any people on earth. We’ve had regular federal elections every two years, uninterrupted even by the Civil War....
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Old September 5, 2018, 06:22 PM   #18
Glenn E. Meyer
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We have avoided direct politic partisanship in this discussion to speak to theory of judicial decision making and what feeds into it. Thank you for the learned discussions so far.

However, we are not going to do: Liberal/Right/Left/Progressive/Conservatives are no goodniks. So I'm deleting some of that.
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Old September 7, 2018, 10:59 AM   #19
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FYI - another analysis of the increasing polarization of the court as demanded by both sides of the political spectrum.

https://www.nytimes.com/2018/07/09/o...nee-trump.html
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Old September 7, 2018, 11:18 AM   #20
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Very interesting article, Glenn.
Bbut I think that if one reads opinions from earlier days, one will conclude that the SCOTUS has always been somewhat partisan. Certainly not as much as now, but the partisanship we see today has been building since at least the civil war.
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Old September 7, 2018, 04:00 PM   #21
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Well, the flaw in the second analysis is they only look at 5-4 or 5-3 votes where the court is already strongly divided. You could have liberal justices who had voted with conservatives 90% of the time and not even show up on that chart as a result.

As vicGT noted, in the 2016 term, unanimous votes were 57%. 5-4 splits were 14%. Yet, because the second link only measures the split votes - you get an impression of overwhelming partisanship.
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Old September 7, 2018, 11:57 PM   #22
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Quote:
Originally Posted by Frank Ettin
But just for a little perspective, from The Wall Street Journal, "The Culture That Sustains America’s Constitution", 2 July 2018:
Unfortunately, I can't read that story without being a subscriber. While I do appreciate the longevity of our "republic", it might be valid to dispute whether we have remained closely enough aligned with the original vision to really be considered still under the same charter.

Sure, the document is still there. The pretense is still there. But there's an awful lot of what it was that's been dead for a long time.
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Old September 8, 2018, 10:28 AM   #23
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Quote:
Originally Posted by Bartholomew Roberts
Well, the flaw in the second analysis is they only look at 5-4 or 5-3 votes where the court is already strongly divided. You could have liberal justices who had voted with conservatives 90% of the time and not even show up on that chart as a result.

As vicGT noted, in the 2016 term, unanimous votes were 57%. 5-4 splits were 14%. Yet, because the second link only measures the split votes - you get an impression of overwhelming partisanship.
The blatant bias on the part of the NYT is even more evident when you realize that they published essentially the same article as the Post back in 2013 when a President that they favored was in office:

Quote:
There have been no dissents in more than 60 percent of the 46 cases decided by the Supreme Court so far this term. Credit Doug Mills/The New York Times
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Old September 8, 2018, 04:54 PM   #24
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There have been some changes, but the basic constitution has survived.
we still have an executive, legislative and judicial branch. we still have our electoral college. We still elect our officials. Treaties are still made the same as 200 years ago.

We still have freedom of speech, RTKABA, right to a lawyer etc. etc.

We may not like some of the rulings of the court, or some of the statutes of the congress, but the constitution is still pretty much intact.
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Old September 8, 2018, 07:19 PM   #25
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Sure, the document is still there. The pretense is still there. But there's an awful lot of what it was that's been dead for a long time.
I concur
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