What the Supreme Court has been up to in 2019

[psionl0]

I don't normally post links to YouTube (other than for songs or short snippets) but this guy gives some really easy to understand explanations and only took 20 minutes to do so.

He listed the following SCOTUS rulings in 2019:

• Allowing "profane" trademarks.
• Extending the ban on racist jury selections.
• Preventing citizenship questions from being asked in a census.
• Preventing federal judges from dealing with gerrymandering issues.
• Affirming the "separate sovereigns" doctrine which allows a person to be charged twice for the same crime: once by the state and again in a federal jurisdiction. The rationale is that the double jeopardy clause bars successive prosecutions for the same offense; not for the same conduct (tricky, tricky). This also means that anybody pardoned by Donald Trump could still be tried in a state court for the same "conduct".
• Allowing police to take blood samples from an unconscious person.
• Allowing the Bladenburg peace cross to remain.

 

[BobTheCoward]

This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.

 

[theprestige]

This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.

This is one of the few contexts in which I agree with your general approach.

Specifically for the courts - especially the Supreme Court! - it is vital that the court rule on the law as it is, not on the law as they wish it to be.

 

[psionl0]

This has been a particularly difficult term to read commentary about. I have a rule. When an article arguing what a decision should or shouldn't be starts to argue the consequences of a decision, I stop reading. The quality of a supreme Court decision is divorced from it's consequences.

This is just a list of SC decisions. Which one(s) is arguing about the consequences?

 

[BobTheCoward]

This is just a list of SC decisions. Which one(s) is arguing about the consequences?

I'm saying when I read commentary about these, I can't throw a rock without hitting one saying the decision is good/bad because of the consequences.

 

[psionl0]

I'm saying when I read commentary about these, I can't throw a rock without hitting one saying the decision is good/bad because of the consequences.

You must be thinking of an external source because nothing in this thread says a "decision is good/bad because of the consequences".

 

[BobTheCoward]

You must be thinking of an external source because nothing in this thread says a "decision is good/bad because of the consequences".

I said it was external sources. That was the commentary I referred to in my post.

 

[psionl0]

I said it was external sources. That was the commentary I referred to in my post.

I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.

 

[BobTheCoward]

I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.

I don't have a problem with it either. My point was far more specific than that.

 

[psionl0]

My point was far more specific OT than that.

ftfy.

 

[BobTheCoward]

ftfy.

I don't go to occupational therapy.

 

[Border Reiver]

I don't see a problem with discussing a SC decision. They seem to be mostly majority rulings anyway which suggests that they are not strictly "legal" rulings.

How does a majority ruling suggest that it is not a legal ruling?

And if the Supreme Court is not issuing a legal ruling, what is it issuing?

 

[psionl0]

How does a majority ruling suggest that it is not a legal ruling?

And if the Supreme Court is not issuing a legal ruling, what is it issuing?

If they were interpreting the constitution strictly on a legal basis then most of the rulings would be unanimous. Instead, the judges rule on what they think the constitution should say. Some even say that the constitution is a "living breathing" document !? It is called "judicial activism".

That is why Trump's stacking the SC with ultra conservatives is such a big issue.

 

[Border Reiver]

If they were interpreting the constitution strictly on a legal basis then most of the rulings would be unanimous. Instead, the judges rule on what they think the constitution should say. Some even say that the constitution is a "living breathing" document !? It is called "judicial activism".

That is why Trump's stacking the SC with ultra conservatives is such a big issue.

Disagree.

If an issue gets to the SC, then the meaning of the law is generally not clear, or the law can be applied to the facts in several ways - this by its very nature means that unanimous decisions at that level will not be the norm regardless of the political makeup of the court. The legal literalism or originalism models used by many US jurists are, to me, a method of ensuring that inequalities become entrenched and far more difficult and socially costly to rectify.

Viewing the law as a framework on which society is built rather than as walls to confine it seems a better way to evolve a society better suited to ensuring "life, liberty and the pursuit of happiness", but that's my own opinion.

Now in the interests of full disclosure, as a Canadian legal professional I am trained in the Canadian legal tradition that views the law as a "living tree" - something that grows and evolves over time to meet the needs of society, not as a static jacket that society has to fit into.

 

[psionl0]

Disagree.

If an issue gets to the SC, then the meaning of the law is generally not clear, or the law can be applied to the facts in several ways - this by its very nature means that unanimous decisions at that level will not be the norm regardless of the political makeup of the court. The legal literalism or originalism models used by many US jurists are, to me, a method of ensuring that inequalities become entrenched and far more difficult and socially costly to rectify.

Viewing the law as a framework on which society is built rather than as walls to confine it seems a better way to evolve a society better suited to ensuring "life, liberty and the pursuit of happiness", but that's my own opinion.

Now in the interests of full disclosure, as a Canadian legal professional I am trained in the Canadian legal tradition that views the law as a "living tree" - something that grows and evolves over time to meet the needs of society, not as a static jacket that society has to fit into.

Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.

You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.

The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.

 

[BobTheCoward]

Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.

You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.

The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.

What about when there isn't a Constitutional issue involved like the census case?

 

[psionl0]

What about when there isn't a Constitutional issue involved like the census case?

More information required.

 

[BobTheCoward]

More information required.

The census case didn't have a Constitutional component (outside of the standing question). Is that judicial activism or standard common law?

Also, are you saying they are all judicial activists on Constitutional issues?

 

[Border Reiver]

Do you agree that the 5th amendment applies only to "self incrimination" and not testifying against yourself in general? Do you agree that the "separate sovereigns doctrine" outweighs the double indemnity clause in the constitution? Do you agree that property can be charged with a crime and therefore no due process is necessary to separate it from its owner? None of these "Simon says" interpretations are written into the constitution but the Judges don't care as long as they can override the protections given to individuals by the constitution.

Many aspects of the US legal system are ridiculous to me - the "separate sovereigns" doctrine is a good example. Canada has ONE set of criminal law for the entire country - unlike the US where each state has its own criminal law, and the Federal government has a separate criminal law, and it is long established law (confirmed by our Supreme Court) that you can only be charged once for the same set of facts.

As for the protections against self incrimination guaranteed by the 5th Amendment, those have been narrowly interpreted by your courts in their application - this is a function of what courts do - interpret the law. For example, s.13 of the Canadian Charter of Rights and Freedoms (similar to your 5th Amendment) has been interpreted much more broadly by our courts. Both Canadian and US law have the same roots, and even though they are starting from the same point get different results even though they apply the same processes, bringing me back to my original post that expecting unanimity in judicial decisions is unrealistic.

The idea that property can be charged with an offence separately from the owner is another ridiculous aspect of US law - only legal persons can be charged with offences up here and legal persons has been confirmed by the courts as human beings or corporations (for contractual purposes or for regulatory purposes only). The issue down in the US seems to be that your legislatures, having defined "civil forfeiture" laws rather loosely, apparently meet the requirement of "due process of law" required under the US Constitution to deprive your citizens of their property. This is definitely an issue where following the strict wording of the US Constitution has led to a situation that is patently ridiculous on its face, but deemed constitutional and because of the revenue that comes into the state as a result, there is no incentive to legislatively change.

You are conflating "THE LAW" with constitutional law. Obviously, common law will evolve case by case. It is not the most ideal way to advance law but there is no other way since it is impossible to foresee what cases will come up in the future. Similarly, many laws passed by parliament/congress are so badly worded that judges have no option but to apply their own pet interpretations to what they deal with.

The Constitution is the LAW - it is the foundational, or first law that gives a basis for the rest of the structure to be built on. It is not separate from the rest of legal system.

The Constitution also falls into this category of "laws so badly worded that judges have no options but to apply their professional insight and understanding of the law to them." Or are you going to argue that the 2nd Amendment is clearly worded with no possible alternate interpretation? Or the similarly undefined phrase "natural born citizen" that caused so much wasted judicial time in the previous administration.

The constitution ought to be different. It is the property of the people and any changes to it should be authorized by the people. Judges should have no business using their personal prejudices to reinvent the constitution. Unfortunately, politicians know too well that it is easier to stack the SC with "judicial activists" than to get the constitution changed.

Let's start off that not only the Constitution, but the entirety of the law is property of the people - and that if the law as written is in contravention of the Constitution then it is the job of the courts to resolve the conflict between the two. That's not judicial activism, that's doing the job the courts are established to do.

 

[BobTheCoward]

Many aspects of the US legal system are ridiculous to me - the "separate sovereigns" doctrine is a good example. Canada has ONE set of criminal law for the entire country - unlike the US where each state has its own criminal law, and the Federal government has a separate criminal law, and it is long established law (confirmed by our Supreme Court) that you can only be charged once for the same set of facts.

As for the protections against self incrimination guaranteed by the 5th Amendment, those have been narrowly interpreted by your courts in their application - this is a function of what courts do - interpret the law. For example, s.13 of the Canadian Charter of Rights and Freedoms (similar to your 5th Amendment) has been interpreted much more broadly by our courts. Both Canadian and US law have the same roots, and even though they are starting from the same point get different results even though they apply the same processes, bringing me back to my original post that expecting unanimity in judicial decisions is unrealistic.

The idea that property can be charged with an offence separately from the owner is another ridiculous aspect of US law - only legal persons can be charged with offences up here and legal persons has been confirmed by the courts as human beings or corporations (for contractual purposes or for regulatory purposes only). The issue down in the US seems to be that your legislatures, having defined "civil forfeiture" laws rather loosely, apparently meet the requirement of "due process of law" required under the US Constitution to deprive your citizens of their property. This is definitely an issue where following the strict wording of the US Constitution has led to a situation that is patently ridiculous on its face, but deemed constitutional and because of the revenue that comes into the state as a result, there is no incentive to legislatively change.




The Constitution is the LAW - it is the foundational, or first law that gives a basis for the rest of the structure to be built on. It is not separate from the rest of legal system.

The Constitution also falls into this category of "laws so badly worded that judges have no options but to apply their professional insight and understanding of the law to them." Or are you going to argue that the 2nd Amendment is clearly worded with no possible alternate interpretation? Or the similarly undefined phrase "natural born citizen" that caused so much wasted judicial time in the previous administration.



Let's start off that not only the Constitution, but the entirety of the law is property of the people - and that if the law as written is in contravention of the Constitution then it is the job of the courts to resolve the conflict between the two. That's not judicial activism, that's doing the job the courts are established to do.

I see no alternative interpretation of the second amendment than mine.