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YABO713

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19 minutes ago, Brutus_buckeye said:

 

 

Putting things into perspective Ken so you can calm down a bit on this case. The Supreme Court DID NOT necessarily say Trump's ban is Constitutional. The case has never even reached the Supreme Court. The decision only deals with lifting the temporary injunction while the matter works itself through the courts. THis may never reach the Supreme Court and other appeals courts may invalidate it. The Supreme Court could hear the case on its merits still and then make a decision. However, the decision to date was not on the merits and only regarding a temporary injunction.

 

Bingo.

 

So, SCOTUS made the right decision here, LEGALLY - which is their job. I may note, that a problem with my own originalism is that it at times will accept absolutely abhorrent results, i.e. Brown v. Board of Education wouldn't have reached the same result if strict, original textualism was applied and, as Justice Scalia used to say, "I'm a textualist but I'm not an idiot."

 

On a human and political note, the transgender ban is an absolute travesty - anyone who wishes to serve in the military should not be barred from doing so because of their sexual identity. Quite frankly, someone who used a bone spur as a deferment should be embarrassed to bar any willing soldier from serving. 

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10 hours ago, KJP said:

Really? I'm the first one to post anything about today's decision? This is the first of many horrific 5-4 decisions to erode Americans' rights...

 

 

 

I noted it in over in the Trump thread, citing his inconsistency when during the 2016 campaign he said he'd be a big LGBT advocate (obviously a lie).


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It's a little curious to hear some conservatives suggest this is not what it is.  Wasn't one of the points of winning the presidency and having control of government that conservative judges would be appointed to turn back the clock on issues like this?  I recognize this is still going through the courts, but the chances that this is upheld are a lot higher now than it once was because of those appointments. 

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13 minutes ago, jonoh81 said:

It's a little curious to hear some conservatives suggest this is not what it is.  Wasn't one of the points of winning the presidency and having control of government that conservative judges would be appointed to turn back the clock on issues like this?  I recognize this is still going through the courts, but the chances that this is upheld are a lot higher now than it once was because of those appointments. 

 

"This is not what it is?"  In the sense of this is not a legal defense of a transgender ban in the military, which apparently is still enjoined (i.e., transgender individuals are still allowed to enlist notwithstanding the ban) because one of the injunctions against the policy was not vacated?

 

I'll check on SCOTUSblog and other reputable sources of Court news later.  But perhaps more importantly, I legitimately do not know the current state of the actual, statutory law on eligibility for military service and whether the transgender ban conflicts with it.  Of course, if this is a Constitutional argument supported by more typical "my outrage on behalf of PC-privileged minorities is the surest guide to constitutional law" leftist folderol, then you can guess my opinion on the actual legal argument.

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Not necessarily. You cant just look at the decision, but study the facts of each case. The ACLU case was not affected by the ruling. It depends on what theory of law that each case is challenging.. It makes a big difference. You cant look at SC justices and see them as a pawn of the president on all issues. We will just need to see how it plays out.

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21 minutes ago, jonoh81 said:

It's a little curious to hear some conservatives suggest this is not what it is.  Wasn't one of the points of winning the presidency and having control of government that conservative judges would be appointed to turn back the clock on issues like this?  I recognize this is still going through the courts, but the chances that this is upheld are a lot higher now than it once was because of those appointments. 

 

It's a reflection of the Executive being Commander-in-Chief.

 

Irrespective of Trump's overreach via the Executive, it shows Judicial restraint and, as noted above, DID NOT address the issue of if it was Constitutional or not - though there are two pending cases that will likely land before SCOTUS next term that will address that issue. In that vein, I would expect to see a 6-3 ruling stating that it's unconstitutional, with Roberts' past decisions tipping his hand in that direction and probably Kavanaugh as well. Alito, Gorsuch, and Thomas will likely defer to the Executive - though Thomas (though very rarely) can be a wild card in fact patterns like this. 

 

Again, the transgender ban is complete crap. But discerning that is not the job of the judiciary in this particular fact pattern as put before them. 

Edited by YABO713

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2 minutes ago, Gramarye said:

 

"This is not what it is?"  In the sense of this is not a legal defense of a transgender ban in the military, which apparently is still enjoined (i.e., transgender individuals are still allowed to enlist notwithstanding the ban) because one of the injunctions against the policy was not vacated?

 

I'll check on SCOTUSblog and other reputable sources of Court news later.  But perhaps more importantly, I legitimately do not know the current state of the actual, statutory law on eligibility for military service and whether the transgender ban conflicts with it.  Of course, if this is a Constitutional argument supported by more typical "my outrage on behalf of PC-privileged minorities is the surest guide to constitutional law" leftist folderol, then you can guess my opinion on the actual legal argument.

 

We've seen constitutional rulings change as society changes.  There is no way Obergefell would've gone the way it did in the 1950s, for example, yet you're suggesting that there is rigid constitutionality here that doesn't change with the views of the judges and the society in which they exist.  I don't think that's true at all.

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6 minutes ago, YABO713 said:

 

It's a reflection of the Executive being Commander-in-Chief.

 

Irrespective of Trump's overreach via the Executive, it shows Judicial restraint and, as noted above, DID NOT address the issue of if it was Constitutional or not - though there are two pending cases that will likely land before SCOTUS next term that will address that issue. In that vein, I would expect to see a 6-3 ruling stating that it's unconstitutional, with Roberts' past decisions tipping his hand in that direction and probably Kavanaugh as well. Alito, Gorsuch, and Thomas will likely defer to the Executive - though Thomas (though very rarely) can be a wild card in fact patterns like this. 

 

Again, the transgender ban is complete crap. But discerning that is not the job of the judiciary in this particular fact pattern as put before them. 

 

Again, I get that this ruling did not specifically address the issue.  What I'm saying is that such issues being upheld and social issues like this being rolled back was a primary goal of many conservatives who voted for and continue to vote for Republicans, and for Trump in particular.  The existing circumstances make the ban being upheld more likely than it was just a few years ago, which is exactly the outcome many conservatives were and are hoping for.  We can pretend like everything is going to be decided by constitutional law alone, but if that were truly the case, it wouldn't matter who was president and it wouldn't matter what the views of the judges were. 

Edited by jonoh81

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3 minutes ago, jonoh81 said:

 

We've seen constitutional rulings change as society changes.  There is no way Obergefell would've gone the way it did in the 1950s, for example, yet you're suggesting that there is rigid constitutionality here that doesn't change with the views of the judges and the society in which they exist.  I don't think that's true at all.

 

Obergefell directly asked SCOTUS to make a ruling as to the Constitutionality of gay marriage.

 

Roe v. Wade asked SCOTUS to make a ruling as to the Constitutionality of abortion. 

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1 minute ago, YABO713 said:

 

Obergefell directly asked SCOTUS to make a ruling as to the Constitutionality of gay marriage.

 

Roe v. Wade asked SCOTUS to make a ruling as to the Constitutionality of abortion. 

 

Yes, and we've seen that such rulings, particularly on RvW, can be chipped away until they essentially return to being bans.  The heartbeat bill is a direct attack on that ruling.  The defunding and shutting down of clinics that perform abortions is another.  Conservatives have learned that, even in loss, they can still get what they want. So for me, even if I believed that such rulings would stick to constitutional law, it's still not safe.

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Just now, jonoh81 said:

 

Yes, and we've seen that such rulings, particularly on RvW, can be chipped away until they essentially return to being bans.  The heartbeat bill is a direct attack on that ruling.  The defunding and shutting down of clinics that perform abortions is another.  Conservatives have learned that, even in loss, they can still get what they want. So for me, even if I believed that such rulings would stick to constitutional law, it's still not safe.

 

Are you aware of the legislation in NY from earlier this week that expanded Roe v. Wade. 

 

It happens, legislatures will push and pull from both directions until the court strikes it down. Unfortunately, there isn't a mechanism to strike down illegal legislation before its implemented, it has to go through the process each time. 

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2 minutes ago, YABO713 said:

 

Are you aware of the legislation in NY from earlier this week that expanded Roe v. Wade. 

 

It happens, legislatures will push and pull from both directions until the court strikes it down. Unfortunately, there isn't a mechanism to strike down illegal legislation before its implemented, it has to go through the process each time. 

 

Are you saying that you can guarantee that such bad legislation will be struck down if/when it ever reaches the higher courts?  My argument is not that I expect perfect, timely rulings, but rather just the opposite, that it would be foolish to always expect things to work out on the right side of the law, let alone on the right side of morality.

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47 minutes ago, YABO713 said:

Are you aware of the legislation in NY from earlier this week that expanded Roe v. Wade. 

 

Didn't NY pass it as a pre-emptive trigger law if/when Roe is overturned by SCOTUS?  I don't know that it expanded Roe v. Wade so much as codified it into state law.  If/when the federal law is overturned then it defaults to state law, no?

Edited by DarkandStormy

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^ not necessarily. States can have laws that go above and beyond federal laws but cant usurp them. Certainly there may be challenges as to the viability principles set forth in Casey, but NY is certainly allowed to have tougher or more lenient laws so long as it does not directly conflict. It is how you have CA emission standards, higher minimum wages standards, etc.

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https://abovethelaw.com/2019/02/retrograde-kavanaugh-replacement-supports-dwarf-tossing-really/

 

Neomi Rao is a "mainstream" Fed-Soc backed Republican.  She is the nominee to replace Brett Kavanaugh on the D.C. Circuit.

 

Quote

Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.

 

Especially popular in Florida bars, dwarf-tossing is the strange spectacle in which competitors throw Velcro-clad little people at a wall or mattress like a shotput. The longest toss wins. The sport has been banned in some American states and parts of France, where a judge upheld such bans because of “considerations of human dignity.” Rao considers these laws an affront to individual liberty that fails to recognize the right of the dwarf to be tossed. In one article, she wrote that the decision in France upholding the dwarf-tossing ban was an example of “dignity as coercion” and that it “demonstrates how concepts of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity.”

Ummm….what?

 

Quote

Dwarf-tossing is an odd cause for a federal judicial nominee to champion. Even weirder, Rao has invoked it repeatedly in her writing to make the case that a misguided focus on human dignity is leading US courts to run afoul of the Constitution in decisions that advance LGBT rights and racial equality. These are areas of the law where, she argues, judges are letting the pernicious influence of international human rights law creep into their jurisprudence at the expense of American exceptionalism and personal freedom.

 


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To follow up on Rao:

Quote

Sen. Ted Cruz (R-Texas) defended a judicial nominee over articles she wrote in the 1990s blaming women for sexual assault.

 

Neomi Rao, whom President Donald Trump nominated to replace Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit, wrote in a 1994 op-ed for The Yale Herald that “a good way to avoid a potential date rape is to stay reasonably sober.” 

 

“If she drinks to the point where she can no longer choose, well, getting to that point was part of her choice,” Rao said at the time.

In her Senate Judiciary Committee hearing on Tuesday, she said she regretted writing the piece. But Cruz characterized her comments as “very good advice.”

 

https://www.yahoo.com/huffpost/ted-cruz-defends-nominee-blamed-184447916.html


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Brett Kavanaugh voted to ignore SCOTUS precedent from *two years ago* (he wrote the dissent) on abortion. Susan Collins, predictably, was full of s***.


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Stern didn't even get the statement of the law right.  NYT v. Sullivan limits defamation lawsuits by public figures and officials, not against public figures and officials.

 

Thomas actually appears to be seriously channeling Trump's threat, which I once took as empty, to "open up libel laws" and allow states to expand libel liability for media outlets on lesser showings than the currently-required "actual malice" standard.  (Note that Thomas is not actually going as far as saying that libel liability standards should be expanded as much as saying that states should be able to expand it further if they choose.  States with major media presences likely would not.)  The quick summary of the current standard, enacted 9-0 at the height of the liberal era:

 

"To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate ... In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term 'actual malice' to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, 'malice' had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. "  https://www.oyez.org/cases/1963/39.

 

Needless to say, revisiting this precedent in the age of Twitter, other social media, and 24/7 cable news would be earth-shattering, for good or ill.  The more positive take is that it would actually cool the runaway pace of today's reporting, to the extent it has become "report first, fact-check later" and force media outlets to implement more stringent review policies to control for biases clouding factual judgment--perhaps preventing further Rolling Stone rape hoaxes, for example.  Or, in the actual case at bar, allowing Cosby's accusers (who themselves became limited public figures when they came forward) more avenues to sue for defamatory tactics allegedly used by Cosby's defenders to destroy the accusers' reputations and credibility.  The more negative take, of course, is that it would ice meritorious stories, particularly via the threat of lawsuits that might even be unsuccessful but would no longer be such clear losers at the outset that they couldn't be filed or threatened in good faith.

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10 minutes ago, Zyrokai said:

This is all pretty confusing. What exactly does this mean? It doesn't sound good at all.

 

Currently, if a public figure wants to sue the media for libel (written slander), they have to prove the media either knew it was false or didn't care if it was false.  Thomas is suggesting we reduce that standard, to make it easier for public figures to sue the media for libel.

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19 minutes ago, 327 said:

 

Currently, if a public figure wants to sue the media for libel (written slander), they have to prove the media either knew it was false or didn't care if it was false.  Thomas is suggesting we reduce that standard, to make it easier for public figures to sue the media for libel.

 

Anything other than this is illogical.....you HAVE to have proof otherwise it's a free-for-all. I'm disgusted this is even being brought up again. I wonder if all the conservative justices think this way? Does Roberts?

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He seems to be alone in going this far with it.  It's odd that he wants us to look to the Constitution for specific defamation standards, when he knows it doesn't provide any.

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Thomas' position is the opposite, though.  As he explained in the concurrence he just authored, he specifically wants to de-constitutionalize defamation standards, returning that authority to states and to the preexisting common law of defamation.  It was the Sullivan Court that began the process of constitutionalizing those standards, reading them into the First Amendment and therefore beyond the reach of the states.

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"If the Constitution does not require public figures to satisfy an actual malice standard..." 

 

Of course it doesn't, not in so many words.  By framing it this way, he's putting a lot of burden on the First Amendment to spell itself out or be ignored.

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It doesn't surprise me that conservatives would look upon this favorably.  With loose libel laws someone with enough money and aggressive enough lawyers could essentially "sue away" the 1st Amendment rights of anyone who dared to be critical of them.

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1 hour ago, X said:

It doesn't surprise me that conservatives would look upon this favorably.  With loose libel laws someone with enough money and aggressive enough lawyers could essentially "sue away" the 1st Amendment rights of anyone who dared to be critical of them.

 

Hmm, now who exactly would that benefit the most currently?  Real mystery.

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2 hours ago, Gramarye said:

Thomas' position is the opposite, though.  As he explained in the concurrence he just authored, he specifically wants to de-constitutionalize defamation standards, returning that authority to states and to the preexisting common law of defamation.  It was the Sullivan Court that began the process of constitutionalizing those standards, reading them into the First Amendment and therefore beyond the reach of the states.

 

Ah yes, the old, convenient "states rights!!!" argument.  So why stop there?  Why not "deconstitutionalize" the entire 1st?  States Rights!!

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2 hours ago, Gramarye said:

Thomas' position is the opposite, though.  As he explained in the concurrence he just authored, he specifically wants to de-constitutionalize defamation standards, returning that authority to states and to the preexisting common law of defamation.  It was the Sullivan Court that began the process of constitutionalizing those standards, reading them into the First Amendment and therefore beyond the reach of the states.

 

https://www.bloomberg.com/opinion/articles/2019-02-19/justice-thomas-contradicts-himself-in-attack-on-press-libel-law

 

Clarence Thomas Attacks the Press, Contradicting ... Clarence Thomas

 

Quote

Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.

 

It is also a powerful reminder that the Supreme Court doesn’t and shouldn’t use originalism to address the freedom of speech — a reality that Thomas has reflected in his own non-originalist free-speech opinions.

 

Nothing in the original meaning of the First Amendment has changed in the 27 years since Thomas joined the court. The timing of his opinion reflects the current anti-journalistic, anti-media mood in conservative circles.

 

The thinking goes: If, in President Donald Trump’s terms, the media is “the enemy of the people,” why should the media get special constitutional protection when it libels public figures?

 

What’s most weird and worrisome about the jurisprudence in Thomas’s opinion is his insistence that “we should carefully examine the original meaning” of the First Amendment.

 

And Thomas himself has taken non-originalist First Amendment positions. The example I used last week to make the point in my class was Thomas’s 2015 radical pro-free speech decision in Reed v. Town of Gilbert. That decision, about sign ordinances, holds that any time a law regulates content, it must be subjected to the highest degree of judicial scrutiny and almost inevitably be struck down.

 

Thomas made no effort to reconcile his opinion Tuesday with the rest of his free-speech positions. But we need to keep in mind that an originalist First Amendment might be pretty similar to no First Amendment at all. Even Thomas has in the past acted as though the First Amendment was part of a living Constitution. The other justices shouldn’t let him kill it.

 


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21 hours ago, 327 said:

"If the Constitution does not require public figures to satisfy an actual malice standard..." 

 

Of course it doesn't, not in so many words.  By framing it this way, he's putting a lot of burden on the First Amendment to spell itself out or be ignored.

 

Agreed.  And in other arenas, most notably Citizens United among recent cases (but that case was just the latest in a fairly robust line of free election-speech cases), constitutional conservatives have been strident in defending an expansive scope of the First Amendment even against popular opposition.  Notwithstanding Thomas channeling understandable conservative disdain for mainstream media outlets, a robust First Amendment protects more those who do not have powerful, institutionalized platforms in the media, entertainment, academia, and other public-facing institutions dominated by the left.  It's not as if there are not wealthy and litigious liberals who would make life a living hell for conservative media outlets (both traditional institutional media as well as activist media) in a more liability-prone defamation structure ... people who would attempt to make any politically incorrect observation actionable.

 

 

20 hours ago, X said:

It doesn't surprise me that conservatives would look upon this favorably.  With loose libel laws someone with enough money and aggressive enough lawyers could essentially "sue away" the 1st Amendment rights of anyone who dared to be critical of them.

 

For the reasons I set forth above, it does surprise me greatly that conservatives would look upon this favorably.  It's not like there's any shortage of liberal lawyers out there.

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https://www.washingtonpost.com/powerpost/trumps-court-nominee-overcomes-gop-concerns-secures-panels-backing/2019/02/28/fa33bc86-3adc-11e9-aaae-69364b2ed137_story.html?noredirect=on&utm_term=.81e3c90e8acf

 

Quote

Supreme Court Justice Clarence Thomas is working behind the scenes to boost the prospects of Neomi Rao, one of his former law clerks, to serve on a powerful federal appeals court in Washington — speaking privately with at least two Republican senators as she faces a contentious confirmation fight. 

 

Sen. Josh Hawley (Mo.) who publicly questioned how Rao would rule on issues such as abortion before supporting her in a key vote Thursday, disclosed this week that he had called Thomas. The justice has also phoned Sen. Tim Scott (S.C.), a sometimes deciding voice on controversial nominees.

 

Trying to imagine how many heads would explode if RBG or Sotomayor were working the phones to boost Merrick Garland.

 

Quote

“I must say, I’m a little bit confused about what I’m reading, to be frank,” Sen. Susan Collins (R-Maine) said Thursday of Rao’s nomination. “There are so many circuit court judges pending right now, but hers has been very confusing — on Roe v. Wade, where she is and she seems to be attacked by both sides.”

 

Collins, who supports abortion rights, added: “So maybe that means she will just follow precedent.” 

 

******************!!!!!!!!!!!!!!!!!!!!!!!  My god, Susan Collins is an absolute hack.


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