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Old October 27, 2020, 01:56 PM   #101
Aguila Blanca
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The problem with writing for the majority in a 5-4 majority is that if you hew too closely to a strict, textualist approach you may find yourself writing for the minority. I have no way of knowing, but I have always believed that's why the Heller decision included some of the truly horrible things such as the "existing, presumptively lawful" reference to other gun laws on the books, and the general ducking of all issues pertaining to evil black, "military looking" rifles. With no proof whatsoever, I believe that Scalia included those provisions in order to get Kennedy's vote on the issue.

It's fine to be "true to your colors" but, if holding to your principles results in losing the case for posterity, what good do your principles serve? Perhaps "pragmatic originalism" is a viable strategy.

I am hopeful that having ACB on the court may result in Roberts growing a pair.
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Old October 27, 2020, 02:28 PM   #102
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I can't know, and so won't speculate on the interaction between the personalities on the court.

I think that the "presumptively legal" and the "ducking of other issues" is a long established SCOTUS procedure.

The court is ruling ONLY on the case before them, nothing else, and other issues, though related, if not in the case before them, are not being ruled on, and therefore "presumptively legal" UNTIL they are specifically ruled on (which requires a different case be brought before the court with those psecific other issues in it.

its literally the courts way of saying "we're not ruling on that, today, and until we do, existing laws stand" The fact that other people take that to mean something other than the court meant, AND the court does not correct them is another matter.

I think we would all have been better off if the court had simply left that language out of the ruling entirely, what's done tis done...
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Old October 27, 2020, 02:43 PM   #103
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I’m still looking for the answer to what cases can Amy Coney Barrett participate in right away . There are several from my understanding at the Supreme Court about voting issues in multiple states. Can she participate in any of those or does she have to recuse herself for lack of a better term because she wasn’t sworn in before those cases reach the Supreme Court ?
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Old October 27, 2020, 03:38 PM   #104
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MG, she would not be required to recuse herself. No Sup Ct justice can be required to recuse himself. ACB should be able to participate in any matter in which the entire Court is called to participate.

Quote:
Originally Posted by 44AMP
I think that the "presumptively legal" and the "ducking of other issues" is a long established SCOTUS procedure.
Indeed. Decide only the case before the Court. Avoid making a constitutional call if the matter can be resolved on lesser grounds.

Quote:
Originally Posted by AB
The problem with writing for the majority in a 5-4 majority is that if you hew too closely to a strict, textualist approach you may find yourself writing for the minority. I have no way of knowing, but I have always believed that's why the Heller decision included some of the truly horrible things such as the "existing, presumptively lawful" reference to other gun laws on the books, and the general ducking of all issues pertaining to evil black, "military looking" rifles. With no proof whatsoever, I believe that Scalia included those provisions in order to get Kennedy's vote on the issue.
That's a reasonable guess. The solicitor general also indicated that he was opposed to a sweeping invalidation of laws the case itself didn't present.

Quote:
Originally Posted by AB
It's fine to be "true to your colors" but, if holding to your principles results in losing the case for posterity, what good do your principles serve? Perhaps "pragmatic originalism" is a viable strategy.
You can read Renquist as the very thin end of a constitutionalist wedge, Scalia as the fatter part of the wedge, and Thomas as a vision of the log with the wedge pounded through it. By itself, Thomas' posture would see ineffective in the absence of a majority with which he can concur.

Some of Thomas' ideas may be seeds of plants the the fruit of which won't be ready for years.
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Old October 27, 2020, 05:52 PM   #105
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Originally Posted by Aguila Blanca View Post
Despite the fact that we are supposed to be a color blind society (wink, wink -- nudge, nudge), it's probably a given that when Thomas leaves the court he will have to be replaced by another person of [a specific] color or we'll have more riots in all the major cities. The direction that person of color leans will, of course, be determined by which party is in power at the time because, as we have seen, qualifications and dedication to the Constitution have become secondary to poitical optics.
Thomas is a very smart man, I think he knows this and he has probably groomed a few clerks of color to be his successor over the past 10-20 years, so if the "right" party is in power at the time finding a near carbon copy of Thomas will not be difficult, especially if one is a judge in a district or appeals court.
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Old October 27, 2020, 06:15 PM   #106
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Quote:
Originally Posted by 44 AMP View Post
I can't know, and so won't speculate on the interaction between the personalities on the court.

I think that the "presumptively legal" and the "ducking of other issues" is a long established SCOTUS procedure.

The court is ruling ONLY on the case before them, nothing else, and other issues, though related, if not in the case before them, are not being ruled on, and therefore "presumptively legal" UNTIL they are specifically ruled on (which requires a different case be brought before the court with those psecific other issues in it.

its literally the courts way of saying "we're not ruling on that, today, and until we do, existing laws stand" The fact that other people take that to mean something other than the court meant, AND the court does not correct them is another matter.

I think we would all have been better off if the court had simply left that language out of the ruling entirely, what's done tis done...
We can't really know if leaving that language out would have led to a loss on Heller tho. I mean, with hindsight, would we have wanted SCOTUS to rule that the 2nd Amendment is NOT an individual right?

Yes, it's an individual right, it's always been, if it were not... I don't want to think of the results of that.

What was done in Heller had to be done IMO. We'll fix the other things over the next few decades and we'll get a lot more of what we want and less of what we don't want thanks to Heller, McDonald, and apparently Caetano now as that ruling in the 9th Circuit WRT magazine capacities cited Caetano.

It's not going to be a nuclear explosion that undoes the damage that has been done to 2A since 1934, it's going to be strategically placed bricks of C4 that go off over a period of time that topples the tower of terror crushing us under its tyranny.
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Old October 27, 2020, 07:33 PM   #107
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Quote:
Originally Posted by 44 AMP
I think we would all have been better off if the court had simply left that language out of the ruling entirely, what's done tis done...
I agree. And leaving it out wouldn't have changed the ruling. That's why I think Scalia included it to pacify Kennedy.

But what I think might have been his motive doesn't matter. As you said, 'tis done.
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Old October 27, 2020, 10:59 PM   #108
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ACB should be able to participate in any matter in which the entire Court is called to participate.
In general I would expect as much . However what if the court has already heard the arguments before she was sworn in and basically ready to rule ? I guess a better question would be are the other justices or the court as a whole required to have her vote on anything pending at the court the moment she is sworn in ?

I'm asking because I heard there are a few rulings coming out in the next few days/week that she will not be able to take part in . When and or how does that work ? Example I can see if they have already ruled on a case and the clerks and or judges are simply writing the decision . I'd think ACB would not have a vote in that case because the decision has already been made . However what if the "full" 8 judge court has heard all the arguments but there has been no formal vote at the time she is sworn in , Is the court required to have her included or can they exclude ? There must be some type of procedure for these types of things Y/N ?
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Old Yesterday, 05:50 AM   #109
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Quote:
Originally Posted by MG
Example I can see if they have already ruled on a case and the clerks and or judges are simply writing the decision . I'd think ACB would not have a vote in that case because the decision has already been made .
My understanding is that the vote can change depending on how the written decisions evolve. A majority decision draft could influence one of that majority to a change of mind that shifts the vote. To paraphrase Seinfeld, it isn't a pizza until it comes out of the oven.

Quote:
Originally Posted by MG
However what if the "full" 8 judge court has heard all the arguments but there has been no formal vote at the time she is sworn in , Is the court required to have her included or can they exclude ?
I don't see why she wouldn't be able to participate in such a decision. She can read the briefs and transcript. The only functional difference would be that she wasn't able to pose questions at oral argument.
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Old Yesterday, 01:05 PM   #110
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Didn't the SCOTUS term just start?
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Old Yesterday, 01:43 PM   #111
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Didn't the SCOTUS term just start?
Yes, the first Monday in October. So ACB hasn't missed much.
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