The Power of the SCOTUS Part VII - The Bedrock of the Republic!

[5mn_Major]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

http://talkingpointsmemo.com/livewire/roy-moore-court-order-gay-marriage-alabama

What could happen to a state's SC justice if he goes against a SCOTUS ruling? Can he be removed from the bench? Disbarred? (IIRC, you don't need to be a lawyer to be on the SCOTUS.) Could only the citizens of Alabama punish him? If so, what's to stop other justices from doing the same thing without worry of punishment?

A 25 day delay to get you license is an attempt at Jim Crow type stuff. But its a very lame attempt to dissuade gay marriage. That's an extremely short planning window for any wedding.

Lincoln has a point that it is up to every government official to act "constitutionally," and there may very well be things that come up in one's day-to-day job where the SCOTUS has not issued any relevant opinions and things are ambiguous. It would then be that person's duty to determine the meaning of the Constitution as best he can and act accordingly. If the other parties involved disagree, they can take it to the courts, all the way up to SCOTUS if necessary, to decide. Once the SCOTUS has ruled on a topic, however, that *is* the end - until there's another countermanding opinion (e.g. Plessy and then Brown) OR a Constitutional amendment.

Lincoln's "every official for himself" doctrine worked out nicely for him in the prosecution of the Civil War, but that neither makes it right nor useful in today's political structure. Might does not make right - and neither does charisma.

That's the hypocritical nature of the south. They are total patriots...but many have an affinity to the flag of America's worst enemy in our history. They say they are Americans...but many hate the US government. When they are finally pinned down, they say it comes down to the Constitution and following the lead of the founding fathers...but then they do their best to subvert it when they disagree with policy (which is often).

Of course there is one more recourse - to bring another suit to the courts to give them a chance to reconsider. Naturally, something would have had to change for the courts to grant cert - the national political/moral mood, some subtlety that makes your new case slightly different from the old one, etc. If you just keep bringing the same suit and expecting different results...

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

 

[burd]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

They do, 5mn. It's called stare decisis, and it's been very effective.

 

[FreshFish]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Of course there is one more recourse - to bring another suit to the courts to give them a chance to reconsider. Naturally, something would have had to change for the courts to grant cert - the national political/moral mood, some subtlety that makes your new case slightly different from the old one, etc. If you just keep bringing the same suit and expecting different results...

Well, most people seem to think that the decision in Kelo v New London was ghastly: the state can take property away from one private citizen through eminent domain and give it to another private citizen who can then develop it for profit? How can that possibly be Constitutional, it is offensive, and it opens up a window to such potential corruption it is actually repulsive. I think in retrospect if the Court were allowed to call for a mulligan, Kelo would be # 1 on their list for a re-do. Left-wing should hate it, right-wing hates it.

The reaction against that decision was strong and widespread, something like 35 states passed laws saying no way we will allow Kelo-type practices to occur here.

By the way, the land that was seized by New London for "development" still sits vacant and idle, more than ten years later.

 

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

They do, 5mn. It's called stare decisis, and it's been very effective.

Then why don't Jim Crow laws still stand?

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Well, most people seem to think that the decision in Kelo v New London was ghastly: the state can take property away from one private citizen through eminent domain and give it to another private citizen who can then develop it for profit? How can that possibly be Constitutional, it is offensive, and it opens up a window to such potential corruption it is actually repulsive. I think in retrospect if the Court were allowed to call for a mulligan, Kelo would be # 1 on their list for a re-do. Left-wing should hate it, right-wing hates it.

The reaction against that decision was strong and widespread, something like 35 states passed laws saying no way we will allow Kelo-type practices to occur here.

By the way, the land that was seized by New London for "development" still sits vacant and idle, more than ten years later.

All of this is correct. I don't know anybody who thinks Kelo was either good law or even a good thing. Who could other than shady developers and investors? This is unique in that it was a 5-4 in which the 4 conservative justices got it right.

Presumably the Court could grant cert to related cases and gradually erode Kelo. This has been what's happened with Roe. The Court does get it wrong sometimes (Dred Scott, Plessy, Lochner) and there are mechanisms for amending (the first two) or walking it back (the latter). There seems to be a shakeout period after a terrible decision when the opposition figures out which approach is needed. For example, post Citizens United and McCutcheon it seems like an amendment will be required to stop the buying of elections.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Then why don't Jim Crow laws still stand?

The 24th Amendment.

 

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

The 24th Amendment.

What do poll taxes have to do with separate but equal?

 

[unofan]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

You mean like how they grant less than 1% of all writs for cert in a given year?

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

What do poll taxes have to do with separate but equal?

Poll taxes were a Jim Crow mechanism for preventing blacks from voting (c.f. "voter id " laws).

 

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Poll taxes were a Jim Crow mechanism for preventing blacks from voting (c.f. "voter id " laws).

Voter IDs don't prevent blacks from voting; what they do is put the election into the hands of hackers. You know the state will never approve of a sight-check of ID, because it isn't reliable enough.

Jim Crow had much more to do with separate facilities than charging a poll tax or having a literacy test.

 

[5mn_Major]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

You mean like how they grant less than 1% of all writs for cert in a given year?

I don't know that 1% is that small of a number based on the size of the country.

 

[unofan]

I don't know that 1% is that small of a number based on the size of the country.

They grant roughly 70 cases per year, which is about half of what they grabbed even 20 years ago. I hardly think they're over worked.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

They grant roughly 70 cases per year, which is about half of what they grabbed even 20 years ago. I hardly think they're over worked.

Why the big drop in certs?

 

[SJHovey]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

All of this is correct. I don't know anybody who thinks Kelo was either good law or even a good thing. Who could other than shady developers and investors? This is unique in that it was a 5-4 in which the 4 conservative justices got it right.

Presumably the Court could grant cert to related cases and gradually erode Kelo. This has been what's happened with Roe. The Court does get it wrong sometimes (Dred Scott, Plessy, Lochner) and there are mechanisms for amending (the first two) or walking it back (the latter). There seems to be a shakeout period after a terrible decision when the opposition figures out which approach is needed. For example, post Citizens United and McCutcheon it seems like an amendment will be required to stop the buying of elections.

I think Kelo was decided correctly.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I think Kelo was decided correctly.

Can you explain why? Seems like an abuse of a government power to to me. I understand eminent domain when you're building the transcontinental railroad and the guy sitting on the only pass through the Rockies is trying to hold you up. That's an overwhelming public interest and Murray Rothbard can go screw. But a shopping mall for some greedy developer? That seems like straight graft.

 

[dxmnkd316]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Why the big drop in certs?

Part of it is how they decide to take cases. Now they vote. It was part of the Supreme Court Case Selections Act

https://en.wikipedia.org/wiki/Supreme_Court_Case_Selections_Act

 

[dxmnkd316]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I think Kelo was decided correctly.

I vehemently disagree with this. One of the founding principles of our country was the Lockian take on property (or at least the broad definition of property). Private property was and should be sacred. Only in cases of public interest such as highways, hospitals, etc. should there be an exception to that. This private development thing was probably the single worst decision of my lifetime that I can remember. Yes, I'd even put it ahead of Citizens United.

O'Connor said it best:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

 

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I vehemently disagree with this. One of the founding principles of our country was the Lockian take on property (or at least the broad definition of property). Private property was and should be sacred. Only in cases of public interest such as highways, hospitals, etc. should there be an exception to that. This private development thing was probably the single worst decision of my lifetime that I can remember. Yes, I'd even put it ahead of Citizens United.

I probably lose my Comintern card, but I agree with this (although "sacred" is a tad over the top ).

O'Connor's opinion is spot on -- this was "reverse Robin Hood." What could have been going on in the liberal justices' minds? It's so obvious that the practical result of this decision would be giving the wealthy yet another Neo-feudalist tool.

 

[SJHovey]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Can you explain why? Seems like an abuse of a government power to to me. I understand eminent domain when you're building the transcontinental railroad and the guy sitting on the only pass through the Rockies is trying to hold you up. That's an overwhelming public interest and Murray Rothbard can go screw. But a shopping mall for some greedy developer? That seems like straight graft.

I look at it this way.

I've always considered our ownership of land to basically be at the pleasure of the government. Sure, we "own" it because we paid for it from someone else who "owned" it, but at the end of the day we all basically own it because the government said we could, and gave us a patent for it. If they want it back, they're going to take it back.

Second, I do view the "public use" requirement broadly. It's not just for a new police station or fire station or road. To have a viable community, we need a trade center, we need multi-family housing, a variety of things that may frequently be constructed and maintained by private entities, but often times need the "boost" of initial public dollar involvement to make it worth doing. We depend upon local government to make a plan for a viable community, and sometimes that means figuring out that we need some low income housing or retail development in a certain area.

Third, the government doesn't just take Mrs. Kelo's home and throw her out in the street with her suitcase full of clothes. They are required to pay fair or just compensation. Frequently that will include not only payment for the fair market value of the property, but relocation expenses and the like. I know in many states the compensation to be paid is ultimately determined by a jury. Pretty hard not to look sympathetic as a homeowner who loses their home.

The thing about eminent domain is this. It's never the taking, only to give to the private party, that is objectionable to the current property owner. That's just the lawyer coming up with a creative argument. It's the taking itself. No one likes the disruption, or the loss of property they've come to love, like their home. People who lose their home to the creation of a new fire station object just as loudly as someone who loses their home to a new multi-family housing complex owned and operated by a private developer.

As with anything involving the interaction of public officials and private business, the opportunity for corruption or misuse exists. But at the end of the day I think it does more good than harm.

 

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

I look at it this way.

I've always considered our ownership of land to basically be at the pleasure of the government. Sure, we "own" it because we paid for it from someone else who "owned" it, but at the end of the day we all basically own it because the government said we could, and gave us a patent for it. If they want it back, they're going to take it back.

Second, I do view the "public use" requirement broadly. It's not just for a new police station or fire station or road. To have a viable community, we need a trade center, we need multi-family housing, a variety of things that may frequently be constructed and maintained by private entities, but often times need the "boost" of initial public dollar involvement to make it worth doing. We depend upon local government to make a plan for a viable community, and sometimes that means figuring out that we need some low income housing or retail development in a certain area.

Third, the government doesn't just take Mrs. Kelo's home and throw her out in the street with her suitcase full of clothes. They are required to pay fair or just compensation. Frequently that will include not only payment for the fair market value of the property, but relocation expenses and the like. I know in many states the compensation to be paid is ultimately determined by a jury. Pretty hard not to look sympathetic as a homeowner who loses their home.

The thing about eminent domain is this. It's never the taking, only to give to the private party, that is objectionable to the current property owner. That's just the lawyer coming up with a creative argument. It's the taking itself. No one likes the disruption, or the loss of property they've come to love, like their home. People who lose their home to the creation of a new fire station object just as loudly as someone who loses their home to a new multi-family housing complex owned and operated by a private developer.

As with anything involving the interaction of public officials and private business, the opportunity for corruption or misuse exists. But at the end of the day I think it does more good than harm.

They don't have to pay anything. Especially when a monopoly is in the back pocket. http://offgridsurvival.com/evicted-for-living-off-the-grid/