The Supreme Court of the United States Thread

#11,126
#11,126
85SugarVol said:
How is Baude’s disqualification thesis seen by serious scholars in the wake of the Court’s decision?
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Short answer: I’m not sure it changed much.

Very Long answer:
The paper was pretty heavily debated before the decision. The people who thought it was correct and some who were skeptical think the court embarrassed itself in Trump v. Anderson. There were some quasi-serious to serious people who said Baude got it completely wrong, but Josh Blackman (not at all apolitical but clearly a smart person) is the only one whose name I was familiar with and can remember and (quick search) I can’t find a post-decision article from him.

The embarrassment wasn’t about the outcome, which some of the skeptics actually agree with, but the legal reasoning.

The conservative legal movement has been about originalism for the past 40 years or so. The most progressive legal philosophy is kind of described as judicial pragmatism or consequentialism.

Justice Gorsuch on originalism in Rahimi:
I appreciate that one of our colleagues sees things differently. Post, at 6–7 (Thomas, J., dissenting). But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only proper question a court may ask. Post, at 5. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.
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Baude is an originalist and his paper was an originalist argument based on the understanding of the text when it was ratified. The court’s reasoning was purely consequentialist. The embarrassment factor is when you have many many statements from conservative justices, like the one from Gorsuch in Rahimi. They’ve relied on originalism as a rationale to make a lot of decisions that liberal cynics see as politically motivated (abortion, guns, religious liberty etc.). And by their own words they are originalists because pragmatism is just making stuff up. Then, in a politically charged case where there is an originalist argument for a bad outcome, they… just made it up. The fact that “their side” of the political spectrum benefitted from it probably enhances the damage.

And it’s not like, as Gorsuch says, reasonable minds can differ on the original meaning in that case. Maybe they can, but there was just no originalist argument in Anderson. You can Google “Trump v. Anderson originalism” and find a few articles by federalist society law professors saying they agree with the decision but that the reasoning is made up. I haven’t seen anybody defend the decision as an originalist work.

Worth noting that Baude was well known (as far as law professors to) before that. He’s relatively young, but he wrote a law review article about a positive law approach to the fourth amendment that the Iowa Supreme Court basically adopted in full, which is how I first heard of him.
 
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#11,127
#11,127
RockyTop85 said:
Short answer: I’m not sure it changed much.

Very Long answer:
The paper was pretty heavily debated before the decision. The people who thought it was correct and some who were skeptical think the court embarrassed itself in Trump v. Anderson. There were some quasi-serious to serious people who said Baude got it completely wrong, but Josh Blackman (not at all apolitical but clearly a smart person) is the only one whose name I was familiar with and can remember and (quick search) I can’t find a post-decision article from him.

The embarrassment wasn’t about the outcome, which some of the skeptics actually agree with, but the legal reasoning.

The conservative legal movement has been about originalism for the past 40 years or so. The most progressive legal philosophy is kind of described as judicial pragmatism or consequentialism.

Justice Gorsuch on originalism in Rahimi:


Baude is an originalist and his paper was an originalist argument based on the understanding of the text when it was ratified. The court’s reasoning was purely consequentialist. The embarrassment factor is when you have many many statements from conservative justices, like the one from Gorsuch in Rahimi. They’ve relied on originalism as a rationale to make a lot of decisions that liberal cynics see as politically motivated (abortion, guns, religious liberty etc.). And by their own words they are originalists because pragmatism is just making stuff up. Then, in a politically charged case where there is an originalist argument for a bad outcome, they… just made it up. The fact that “their side” of the political spectrum benefitted from it probably enhances the damage.

And it’s not like, as Gorsuch says, reasonable minds can differ on the original meaning in that case. Maybe they can, but there was just no originalist argument in Anderson. You can Google “Trump v. Anderson originalism” and find a few articles by federalist society law professors saying they agree with the decision but that the reasoning is made up. I haven’t seen anybody defend the decision as an originalist work.

Worth noting that Baude was well known (as far as law professors to) before that. He’s relatively young, but he wrote a law review article about a positive law approach to the fourth amendment that the Iowa Supreme Court basically adopted in full, which is how I first heard of him.
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He sounds very reasonable (Baude), and also like someone we could use on the Court.

You do believe that ship has now sailed though?
 
#11,129
#11,129
85SugarVol said:
www.nbcnews.com

Democratic senators seek to reverse Supreme Court ruling that restricts federal agency power

First to NBC News: Sen. Elizabeth Warren is introducing a bill that would effectively undo a court ruling that overturned the 40-year Chevron precedent.
www.nbcnews.com www.nbcnews.com
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It's so crazy that they are arguing that people shouldn't be able to have the courts review whether an agency action is is within the law. It's particularly ironic with the outcry about the immunity ruling which makes the E-leader a "king" but E-branch agencies should be able to write their own rules that are unchallengeable in court.
 
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#11,130
#11,130
volinbham said:
It's so crazy that they are arguing that people shouldn't be able to have the courts review whether an agency action is is within the law. It's particularly ironic with the outcry about the immunity ruling which makes the E-leader a "king" but E-branch agencies should be able to write their own rules that are unchallengeable in court.
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Not so crazy when you view their actions thru their world view. They desire an all-powerful State.

But yes, the irony is thick. They bleat about an Executive King, but are perfectly content with unelected Executive Agencies - that write their own rules, adjudicate themselves, hand down punishment themselves, and are unanswerable to anyone or anything (and believe that’s honestly the way it should be). 🤷‍♀️
 
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#11,132
#11,132
turbovol said:
Says the man who knows nothing about civics.....

Let's all laugh together at MAGA who are suddenly concerned about civics. Anybody who supports the felon doesn't have
a logical leg to stand on....about anything. Do try to understand that.
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And as your pointing you're incapable of seeing the party you carry water for doesn't have a leg to stand on. It takes a special kind of person to be this willfully obtuse.
 
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#11,134
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#11,136
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#11,138
#11,138
Orangeburst said:
"Giant corporations are using far-right, unelected judges to hijack our government and undermine the will of Congress,” Warren said in a statement Tuesday.

I loathe these people. The very bane of our Republic.
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I work for a "Giant Corporation" and I can guarandamntee you that they are anything but far right.
 
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