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The Power of the SCOTUS II: "Release the Kagan!"

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Re: The Power of the SCOTUS II: "Release the Kagan!"

If people don't mind, I'd like to pursue the same concept using a different example: the right to privacy.

I think we "should" have a right to privacy, I have a hunch that most US citizens would agree we "should" have a right to privacy, and at the same time a reasonable person reading the language of the Constitution would probably agree that it does not contain a right to privacy (there is a stricture against "unreasonable search and seizure", yes. Is that the same thing as a right to "privacy"? I would say "no"....for now can we gloss over this distinction and for the sake of conversation agree, at least temporarily?).

Now suppose I am a Supreme Court justice and a case comes before me in which I think a right to "privacy" "should" apply. Either I can say, "hmm...how do I find a justification in the Constitution to 'discern' a right to privacy where none is explicitly granted?" or I can say, "gee, I really wish there were a right to 'privacy'." I could choose the latter and go further: I could convene a press conference or request a formal audience with the President and both Houses of Congress, get the other eight Justices together, and say "Mr. President, Members of Congress, and the American People, we, the nine Justices of the Supreme Court, would really like there to be a right to 'privacy' in our Constitution. Would you please do what is required to pass a Constitutional amendment to provide one?"

That, in a nutshell, is why I think any decision in Roe vs Wade, was a mistake, no matter how it was ruled. I'd feel the same way if the vote went 5 - 4 in the opposite direction. Any finding would have been invented.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

joecct said:
Duggers? And if they can afford that many kids, more power to them.
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You must have missed that part of the original post that I left there in white text.....it was a joke with a hidden punchline.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

jmh said:
Wait, what? Who is ridiculed and mocked for choosing to have a baby? I'm in the age range where a lot of my friends are having kids, and I can't recall hearing any of them mocked for not getting an abortion.
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Wow, you missed all the venom directed at Sarah Palin because she knew she had a Downes Syndrome baby and yet gave birth to it anyway rather than abort it? Wow, how nice to be so insulated.

I am no Sarah Palin defender by any means, yet I found the media treatment of her, particularly in regards to this episode, despicable.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

You really should learn how to multiquote.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Kepler said:
There are posters who are completely rational except for one issue. We've seen it with immigration. I think we may be witnessing it with reproductive rights.

(Personally, do not try to engage me in an objective conversation about Fred Wilpon. It aint happenin'. I fully admit I am completely irrational on it.)
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Best owner in franchise history. That cannot be debated.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
You must have missed that part of the original post that I left there in white text.....it was a joke with a hidden punchline.
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Nope - saw it, but the Duggers are mega parents.

Now back to more serious matters:

In Loving Chief Justice Warren said:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
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So, according to SCOTUS, there is a right to marriage. I doubt the Justice Warren had any idea that Loving could be cited as an argument for homosexual marriage, but if the SCOTUS is going to rely on precedent, there it is.

Crap.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

While Learned Hand was not a Supreme Court Justice, he is one of the most respected non-Supremes. I really like this finding:

"Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes."
--- Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).

The rule of law is what protects the rights of the minority from abuse by the majority.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

joecct said:
Now back to more serious matters:

In Loving Chief Justice Warren said:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...
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And yet, the words "marriage" "wedding" or anything of the sort is found nowhere in the Constitution. Damm activist judges.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Priceless said:
And yet, the words "marriage" "wedding" or anything of the sort is found nowhere in the Constitution. Damm activist judges.
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Some would argue that the Warren Court set new levels in that regard.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Priceless said:
And yet, the words "marriage" "wedding" or anything of the sort is found nowhere in the Constitution. Damm activist judges.
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That's because the founding fathers hated weddings. Given what they've turned into, I can't say I blame them.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

Given that there's a system in the Constitution itself for states to call for a convention to suggest amendments, I sometimes wonder if the FF expected us to get together every few generations and hammer out something entirely new or add half a dozen amendments at once for the changing times.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

bronconick said:
Given that there's a system in the Constitution itself for states to call for a convention to suggest amendments, I sometimes wonder if the FF expected us to get together every few generations and hammer out something entirely new or add half a dozen amendments at once for the changing times.
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The states have turned into sheep and have let the Federal Government grab too much power. With the amount of bribes the Feds give the States, they won't rise up and call a constitutional convention for fear of turning off the spigot.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

joecct said:
The states have turned into sheep and have let the Federal Government grab too much power. With the amount of bribes the Feds give the States, they won't rise up and call a constitutional convention for fear of turning off the spigot.
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Yeah. I'm thinking around the Civil War period would have been when it had to happen.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
That, in a nutshell, is why I think any decision in Roe vs Wade, was a mistake, no matter how it was ruled. I'd feel the same way if the vote went 5 - 4 in the opposite direction. Any finding would have been invented.
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So when Roe sued Wade, what were the District Court and Circuit Court supposed to do? claim lack of jurisdiction? Yes, SCOTUS could've punted, though they accepted more cases on cert back then than they do now. But the lower courts couldn't punt it.

And the Constitution isn't meant to delineate every single right, as people often forget. One of the biggest arguments against the Bill of Rights by the Founding Fathers is that people like you would see that certain rights were thereby enumerated, and presume everything else must not have been meant to be covered.

So the right to privacy, the right to marry, etc. can all be protected without being specifically mentioned.

Also, Learned Hand is overrated. All he said, in a more convoluted form, is that tax avoidance is what everyone does. Doesn't mean tax evasion is legal.
 
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Re: The Power of the SCOTUS II: "Release the Kagan!"

FreshFish said:
Wow, you missed all the venom directed at Sarah Palin because she knew she had a Downes Syndrome baby and yet gave birth to it anyway rather than abort it?
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First of all, SP was laughed off the national stage because she was an idiot. That had zero to do with her baby.

The baby controversy, which was separate, was about the inconsistencies of her story about whether the baby was actually hers and not Bristol's. Is that true? Who knows, who cares? She's proven herself a serial liar about so many other things that it's gilding the lily to bring it up.
 
Re: The Power of the SCOTUS II: "Release the Kagan!"

unofan said:
So when Roe sued Wade, what were the District Court and Circuit Court supposed to do? claim lack of jurisdiction? Yes, SCOTUS could've punted, though they accepted more cases on cert back then than they do now. But the lower courts couldn't punt it.

And the Constitution isn't meant to delineate every single right, as people often forget. One of the biggest arguments against the Bill of Rights by the Founding Fathers is that people like you would see that certain rights were thereby enumerated, and presume everything else must not have been meant to be covered.

So the right to privacy, the right to marry, etc. can all be protected without being specifically mentioned.
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"If we list a set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no others."
 
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