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  1. #51
    4-25-20 Will Hunting's Avatar
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    Moore v Harper oral arguments on the independent state legislature theory. ACB so far seems to be unconvinced.

    My takeaways:
    -Pretty much all of the justices except Gorsuch seemed unconvinced of the most broad version of ISLT but Alito & Thomas weren't very far off of it.
    -Kavanaugh seemed to reject ISLT as a whole but wants to implement a more narrow review on state supreme courts for misreading state cons utions in extreme cir stances (relying a lot on the Bush v. Gore Rehnquist concurrence even though the justices all said that opinion should never have any precedent).
    -Roberts and ACB asked questions about what that review would look like but seemed to reject ISLT as a whole.
    -The 3 lib justices obviously think the whole thing is re ed.

    Where I think we end up:
    -A majority opinion that rejects ISLT but gives SCOTUS the power to overrule a state supreme court for abusing its discretion or misreading the state cons ution on election-related laws in limited cir stances.

    My opinion:
    -In principle, a set-up where SCOTUS has the ability to overrule a partisan state supreme court grossly misinterpreting or ignoring a state cons ution when it comes to redistricting or election laws is a good idea, but I don't trust this SCOTUS to apply their authority to overrule state supreme courts evenly, and Article 1, Section 4 of the cons ution isn't enough for SCOTUS to just give itself this authority.

    In this case, even though it benefited Democrats, it's clear the North Carolina state supreme court 100% abused its discretion by ruling that the NC state cons ution's equal protection clause mandated absolute partisan fairness on a district map, so I understand why SCOTUS is trying to shoehorn a mechanism into law that prevents a state court from obvious judicial activism while at the same time rejecting a radical legal theory, but SCOTUS trying to solve this with a court opinion flies directly in the face of Rucho, so the whole thing is still inconsistent and motivated by partisanship.

    Still, assuming I'm right, it's a lot better than an outcome where SCOTUS rules all independent commissions uncons utional and/or takes away the governor's ability to veto bad maps.

  2. #52
    4-25-20 Will Hunting's Avatar
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    What's interesting is, the two key findings the NC supreme court made were:
    1) the "free elections" clause of the state cons ution includes a ban on partisan gerrymandering
    2) the equal protection clause of the state cons ution means that districts need to be drawn with partisan fairness in mind (this isn't the same as a ban on partisan gerrymandering as it goes a step further and mandates that districts need to be drawn while weighing partisan fairness as a factor)

    2) has almost no basis and it's where the NCSC clearly abused its discretion; 1) is a lot more unclear and ambiguous, with state supreme court rulings that go both ways interpreting free elections clauses all over the country.

    This whole lawsuit was stupid because the GOP just won the state supreme court in NC back and they're now able to gerrymander the map with a state supreme court that'll just overrule 1) and 2) as precedent. Where I think this lawsuit could significantly backfire for Moore is if SCOTUS makes a finding that overrules 2) but agrees with 1) and basically forces the new GOP court majority in North Carolina to read NC's "free elections" clause to include a ban on partisan gerrymandering.

  3. #53
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    so I can deem a law uncons utional and have the Supreme Court vet any law I don't like?
    If you go through the process of filing a lawsuit and are willing to appeal/defend it all the way to the SCOTUS (and they take the case), sure.

  4. #54
    4-25-20 Will Hunting's Avatar
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    The injury is that the law is in the books. If you deem a law uncons utional, you can sue and have it reviewed by the courts. This stuff happens all the time.
    I think you still need to demonstrate that you have standing in some other respect (e.g., that the law has the potential to infringe on your rights).

    SCOTUS rejected the most recent challenge to Obamacare because plaintiff couldn't articulate how they had standing to challenge an "uncons utional" requirement to have health insurance when the penalty for not having health insurance was $0.

  5. #55
    dangerous floater Winehole23's Avatar
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    I think you still need to demonstrate that you have standing in some other respect (e.g., that the law has the potential to infringe on your rights).

    SCOTUS rejected the most recent challenge to Obamacare because plaintiff couldn't articulate how they had standing to challenge an "uncons utional" requirement to have health insurance when the penalty for not having health insurance was $0.
    that's what's unclear to me. how was standing established in this case?

  6. #56
    4-25-20 Will Hunting's Avatar
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    that's what's unclear to me. how was standing established in this case?
    The law infringes (or has the potential to infringe) on her 1st amendment right of religion.

    Even though she hadn't suffered any actual injury yet she had the potential to.

    In the ACA case, there was no colorable way the pe ioner would ever be damaged by a requirement to have health insurance when the penalty was $0.

  7. #57
    my unders, my frgn whites pgardn's Avatar
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    Please keep this thread going.
    Its very good. I can’t keep up with the cases or the nuances, this helps.

  8. #58
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    I think you still need to demonstrate that you have standing in some other respect (e.g., that the law has the potential to infringe on your rights).

    SCOTUS rejected the most recent challenge to Obamacare because plaintiff couldn't articulate how they had standing to challenge an "uncons utional" requirement to have health insurance when the penalty for not having health insurance was $0.
    Well, sure. In this case, this is a resident of Colorado who's a business owner, so sorting out standing wasn't very complicated. Plus, IIRC, the initial suit was filed in Colorado.

  9. #59
    dangerous floater Winehole23's Avatar
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    The law infringes (or has the potential to infringe) on her 1st amendment right of religion.

    Even though she hadn't suffered any actual injury yet she had the potential to.

    In the ACA case, there was no colorable way the pe ioner would ever be damaged by a requirement to have health insurance when the penalty was $0.
    Makes sense.

  10. #60
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    The law infringes (or has the potential to infringe) on her 1st amendment right of religion.

    Even though she hadn't suffered any actual injury yet she had the potential to.

    In the ACA case, there was no colorable way the pe ioner would ever be damaged by a requirement to have health insurance when the penalty was $0.
    Yep. Once you have a decision from a lower court, you can file a Certiorari to have a higher court (including the SCOTUS) review it.

    The difference with the SCOTUS is that it can decline.

  11. #61
    4-25-20 Will Hunting's Avatar
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    Similar to the ACA thing, I think Biden's student debt cancellation ultimately survives court because there's no clear way for the challengers to establish standing.

    The fact your tax dollars are being applied in ways you don't agree with has no historical precedent as a way to establish standing (and for good reason).

  12. #62
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    Similar to the ACA thing, I think Biden's student debt cancellation ultimately survives court because there's no clear way for the challengers to establish standing.

    The fact your tax dollars are being applied in ways you don't agree with has no historical precedent as a way to establish standing (and for good reason).
    Yeah, that's a completely different ball game.

  13. #63
    4-25-20 Will Hunting's Avatar
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    Yep. Once you have a decision from a lower court, you can file a Certiorari to have a higher court (including the SCOTUS) review it.

    The difference with the SCOTUS is that it can decline.
    Well you can get dismissed for lack of standing by a lower court and then still file for Certiorari, but it just means the higher court is gonna review the same issue re: standing.

  14. #64
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    If you look at what's now known as the "shadow docket" in the SCOTUS, you can see the large amount of Certioraris filed (and declined) on every period. This is very common.

  15. #65
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    Well you can get dismissed for lack of standing by a lower court and then still file for Certiorari, but it just means the higher court is gonna review the same issue re: standing.
    Correct. But in this case standing wasn't an issue. The lower court accepted standing, but it ruled that the law wasn't infringing on the plaintiff's 1st amendment rights. That's how we got here.

  16. #66
    dangerous floater Winehole23's Avatar
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    Interesting contrast with Fulton

    this case, seen together with Fulton, illuminates the strange world and strange world view we will have arrived at when the Court finds, as it certainly will, that Colorado cannot compel 303 Creative to do web design for a same-sex couple. The Court will have held that some corporations (Philadelphia) can be compelled to contract with corporations whose religious beliefs lead them to discriminate against gay couples but that gay couples (actual natural persons) cannot compel a corporation to contract with them.
    https://lawprofessors.typepad.com/co...-creative.html

  17. #67
    4-25-20 Will Hunting's Avatar
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    Yeah true I see what you're saying, most of the time SCOTUS will just deny cert if you were dismissed for lack of standing, but if it's a major enough case then SCOTUS might take it up to address whether there is standing.

  18. #68
    dangerous floater Winehole23's Avatar
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    If you look at what's now known as the "shadow docket" in the SCOTUS, you can see the large amount of Certioraris filed (and declined) on every period. This is very common.
    the relatively large number of cases recently taken up without explanation before appeals have played out sure makes it look like SCOTUS is selecting cases based on political considerations.

    https://www.basicbooks.com/ les/st...9781541602632/

  19. #69
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    the relatively large number of cases recently taken up without explanation before appeals have played out sure makes it look like SCOTUS is selecting cases based on political considerations.

    https://www.basicbooks.com/ les/st...9781541602632/
    I'm not arguing that, just pointing out that Certioraris are not uncommon.

  20. #70
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    Fascist Capitalists corrupting the SCOTUS6 even further, having bought their seats, in support of the deeply anti-democratic ISLT

    Conservative donors pour ‘dark money’ into case that could upend US voting law

    Groups submitting amicus briefs to supreme court case in support of Republican lawmakers received $90m in anonymous donations

    https://www.theguardian.com/us-news/...moore-v-harper



  21. #71
    dangerous floater Winehole23's Avatar
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    Money buys access to justices for parties with cases pending.

    In some years, Chief Justice John G. Roberts Jr. does the honors. In others, it might be Justice Sonia Sotomayor or Justice Clarence Thomas presenting the squared-off hunks of marble affixed with the Supreme Court’s gilded seal.

    Hewed from slabs left over from the 1930s construction of the nation’s high court and handed out in its magnificent Great Hall, they are a unique status symbol in a town that craves them. And while the ideological bents of the justices bestowing them might vary, there is one constant: All the recipients have given at least $5,000 to a charity favored by the justices, and, more often than not, the donors have a significant stake in the way the court decides cases.

    The charity, the Supreme Court Historical Society, is ostensibly independent of the judicial branch of government, but in reality the two are inextricably intertwined. The charity’s stated mission is straightforward: to preserve the court’s history and educate the public about the court’s importance in American life. But over the years the society has also become a vehicle for those seeking access to nine of the most reclusive and powerful people in the nation. The justices attend the society’s annual black-tie dinner soirees, where they mingle with donors and thank them for their generosity, and serve as M.C.s to more regular society-sponsored lectures or re-enactments of famous cases.

    The society has raised more than $23 million over the last two decades. Because of its nonprofit status, it does not have to publicly disclose its donors — and declined when asked to do so. But The New York Times was able to identify the sources behind more than $10.7 million raised since 2003, the first year for which relevant records were available.

    At least $6.4 million — or 60 percent — came from corporations, special interest groups, or lawyers and firms that argued cases before the court, according to an analysis of archived historical society newsletters and publicly available records that detail grants given to the society by foundations. Of that, at least $4.7 million came from individuals or en ies in years when they had an interest in a pending federal court case on appeal or at the high court, records show.

    https://www.nytimes.com/2022/12/30/u...-justices.html

  22. #72
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    ‘The nation’s executioners’:

    the US supreme court’s shift towards capital punishment


    Conservative super-majority especially unwilling to consider appeals, in stance that has flown under the radar

    Lawyers for the condemned man had pe ioned the court in a last-ditch effort to save his life. They argued that critical evidence at his trial given by a

    key witness had been tainted,

    as she had been encouraged under hypnosis to change her testimony.

    The supreme court’s order was brief and blunt,
    No explanation. No ambiguity. No way back.

    its default position has been to allow executions to proceed even in cases where serious cons utional issues are at stake.

    the nation’s highest court, which used to offer death row inmates the hope of a final review, has all but closed its doors to their pe ions.

    the conservative justices have become the nation’s executioners.”

    the hardening of the court’s approach to 2019 when it effectively sided with the Trump administration in its rush to carry out federal executions for the first time in 16 years.

    the judicial killing of 13 federal inmates in the twilight of Trump’s presidency.


    https://www.theguardian.com/us-news/2023/jan/12/us-supreme-court-death-row-executions


  23. #73
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    It's time to admit this right-wing US Supreme Court is a corrupt, autocratic tribune



    calling a small group of partisan lawyers a "supreme" court doesn't make it one.

    There's nothing supreme about the six-pack of far-right-wing political activists

    who are presently soiling our people's ideals of justice by proclaiming their own antidemocratic biases to be the law of the land.

    On issues of economic fairness, women's rights, racial justice, corporate supremacy, environmental protection, theocratic rule and other fundamentals,

    these unelected, black-robed extremists are imposing an illegitimate elitist agenda on America

    that the people do not want and ultimately will not tolerate.


    https://www.rawstory.com/2659100806

    How can "people" not tolerate the illegit, corrupt SCOTUS6?

    'the strong do what they can

    and

    the weak suffer what they must'


    -- Thucydides'

  24. #74
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    ^^^ you can say all this without repercussion thanks to the First Amendment...
    If you had legal training, you would know the First Amendment pertains only to govt censorship.

  25. #75
    🏆🏆🏆🏆🏆 ElNono's Avatar
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    If you had legal training, you would know the First Amendment pertains only to govt censorship.
    Exactly. The fact that there's no government law mandating censorship in this forum is a big reason you can express yourself like that.

    Try that in China or even Russia.

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