US Politics: 50 shades of Scalia

[Ser Scot A Ellison]

13 hours ago, TrackerNeil said:

A few more Republican nominees to the Supreme Court and the answer to your question is "yes."

Tracker,

Do you mean like the Republican Supreme Court Justice Harry Blackmun?

 

[TrackerNeil]

1 hour ago, Ser Scot A Ellison said:

Tracker,

Do you mean like the Republican Supreme Court Justice Harry Blackmun?

 

I was thinking more of Antonin Scalia, Sam Alito, Clarence Thomas, William Rehnquist, John Roberts or Anthony Kennedy.

[Ser Scot A Ellison]

Justice Souter was a Republican nominee as was Chief Justice Earl Warren.  And by John Roberts you mean the Chief Justice who's opinion upheld the criticialy important mandates that people buy health insurance or face fines?

I understand your point.  My point is that perhaps both parties should get away from nominating people for the court based upon their perceived political philosophy (as the President has in the case of Judge Garland) and just nominate highly qualified men and women for the SCOTUS.

[Ser Scot A Ellison]

And I just love the Republican Judiciary Commitee Chair Sen. Grassley blaming the SCOTUS for the political crap they put Nominee's through now:

http://www.cnn.com/2016/04/05/politics/grassley-roberts-physician-heal-thyself/index.html

[Mr. Chatywin et al.]

15 hours ago, TrackerNeil said:

A few more Republican nominees to the Supreme Court and the answer to your question is "yes."

Correct, but that's not what I'm asking. I'm asking if those laws are objectively constitutional or not.

[DanteGabriel]

6 minutes ago, Tywin et al. said:

Correct, but that's not what I'm asking. I'm asking if those laws are objectively constitutional or not.

If there's one thing that watching US politics has taught me, it's that there's no such thing as "objectively constitutional."

[Mr. Chatywin et al.]

8 minutes ago, DanteGabriel said:

If there's one thing that watching US politics has taught me, it's that there's no such thing as "objectively constitutional."

I'm not asking a political question.

[TrackerNeil]

12 minutes ago, Tywin et al. said:

I'm not asking a political question.

Everything that comes before the Court is a political question. And to echo DanteGabriel, what's objectively constitutional is what the Supreme Courts says is objectively constitutional.

[Mr. Chatywin et al.]

1 hour ago, TrackerNeil said:

Everything that comes before the Court is a political question. And to echo DanteGabriel, what's objectively constitutional is what the Supreme Courts says is objectively constitutional.

Ok, reframe the question like you're asking a law school professor, not the Supreme Court. This shouldn't be so hard.

[NestorMakhnosLovechild]

1 hour ago, TrackerNeil said:

Everything that comes before the Court is a political question. And to echo DanteGabriel, what's objectively constitutional is what the Supreme Courts says is objectively constitutional.

This is just wrong.  "Political question" is a legal term of art. It means something different than "this also happens to be an issue on which people have political opinions on." 

The irony is, if we accept your legal positivism at face value (ie: something is whatever the Supreme Court says it is), your two statements are internally inconsistent. The Supreme Court has defined "political question" to mean a very narrow set of constitutional disputes. Ergo, "everything" cannot be a political question because the Supreme Court has clearly defined a very limited subset of issues that come before it as political questions. QED. 

[DanteGabriel]

20 minutes ago, Tywin et al. said:

Ok, reframe the question like you're asking a law school professor, not the Supreme Court. This shouldn't be so hard.

I think it is pretty clear that TN and I were both talking about "political question" as "an issue on which people have political opinions" and not the legal term, so let's step back and figure out what you mean by "objectively constitutional."

Do you mean that some (ostensibly) neutral party is supposed to tell us whether a law is constitutional? I guess that would be the Supreme Court. And it does seem like the political beliefs of the people on the Court affect their judgments on the constitutionality of laws.

 

[TrackerNeil]

21 minutes ago, Tywin et al. said:

Ok, reframe the question like you're asking a law school professor, not the Supreme Court. This shouldn't be so hard.

I think, Tywin, that you and I disagree about the way human beings approach these kinds of things. For myself, I don't think there is an objective standard for deciding what is constitutional; if there were, we wouldn't need a Supreme Court at all; instead, we'd have the Arbitron-2000, into which we'd input case files and get perfect decisions.

I think that, as with anything dependent upon perception and contextualization, evaluating the constitutionality of laws is going to be something on which human beings will always disagree. That doesn't mean all opinions are equally justifiable--some people are just crazy--but that finding an objective point of view, 100% divorced from politics, is like searching for unicorns.

[Shryke]

2 hours ago, NestorMakhnosLovechild said:

This is just wrong.  "Political question" is a legal term of art. It means something different than "this also happens to be an issue on which people have political opinions on." 

The irony is, if we accept your legal positivism at face value (ie: something is whatever the Supreme Court says it is), your two statements are internally inconsistent. The Supreme Court has defined "political question" to mean a very narrow set of constitutional disputes. Ergo, "everything" cannot be a political question because the Supreme Court has clearly defined a very limited subset of issues that come before it as political questions. QED. 

It's not ironic at all because you are assuming he's using the term in a legal-esque sense that SCOTUS can decide on rather then the more common and completely obvious to anyone not being a douchey pedant colloquial sense of "an issue on which people have political opinions". Which is something the SCOTUS doesnt' get to decide on because they are not the SCOTEFL (Supreme Court  of the English Fucking Language)

[NestorMakhnosLovechild]

24 minutes ago, Shryke said:

It's not ironic at all because you are assuming he's using the term in a legal-esque sense that SCOTUS can decide on rather then the more common and completely obvious to anyone not being a douchey pedant colloquial sense of "an issue on which people have political opinions". Which is something the SCOTUS doesnt' get to decide on because they are not the SCOTEFL (Supreme Court  of the English Fucking Language)

TN's use of the phrase "political question" is so broad as to be meaningless. "Everything is political!!!!" is neither a true nor helpful statement. 

It's possible for people to have beliefs about things which transcend immediate political goals. I may think, for example, that universal health care is good policy and that society would be better off with it. I may also think that the Affordable Health Care Act is unconstitutional. These are not contradictory positions. TN's shallow form of legal positivism - which essentially dispenses with the entire idea of Constitutionalism as a check on the political process - is radical and dangerous, but more importantly, unhelpful for the purpose of facilitating conversation, especially when presented in such a truncated fashion. More is being hidden than revealed by his inartful phrasing. 

[Astromech]

26 minutes ago, Shryke said:

It's not ironic at all because you are assuming he's using the term in a legal-esque sense that SCOTUS can decide on rather then the more common and completely obvious to anyone not being a douchey pedant colloquial sense of "an issue on which people have political opinions". Which is something the SCOTUS doesnt' get to decide on because they are not the SCOTEFL (Supreme Court  of the English Fucking Language)

I thought the same thing as Nestor when I read "political question", but I share the same profession. We also may come across as pedants, and for that I half-heartedly apologize, but lawyers by nature and education are pedantic. That pedantry is often the difference between winning and losing cases. And the SCOTUS is often times the final arbiter of such pedantry.

[Mr. Chatywin et al.]

2 hours ago, DanteGabriel said:

Do you mean that some (ostensibly) neutral party is supposed to tell us whether a law is constitutional? I guess that would be the Supreme Court. And it does seem like the political beliefs of the people on the Court affect their judgments on the constitutionality of laws.

 

The Supreme Court would likely vote 4-4 or 5-3 that it would be unconstitutional. But I'm not asking what the SC would do. I'm asking from the hypothetical perspective of a law school student, whose in a constitutional law class, in which the professor is a centrist, fair minded person. Or in this actual case what the Board lawyers think. I believe it would be unconstitutional, but I don't know enough to make an emphatic statement.

2 hours ago, TrackerNeil said:

I think, Tywin, that you and I disagree about the way human beings approach these kinds of things. For myself, I don't think there is an objective standard for deciding what is constitutional; if there were, we wouldn't need a Supreme Court at all; instead, we'd have the Arbitron-2000, into which we'd input case files and get perfect decisions.

I think that, as with anything dependent upon perception and contextualization, evaluating the constitutionality of laws is going to be something on which human beings will always disagree. That doesn't mean all opinions are equally justifiable--some people are just crazy--but that finding an objective point of view, 100% divorced from politics, is like searching for unicorns.

I don't think there is either, but I think there are plenty of fair minded constitutional lawyers/scholars who could give you an answer that is as politically neutral as humanly possible.

[Shryke]

1 hour ago, NestorMakhnosLovechild said:

TN's use of the phrase "political question" is so broad as to be meaningless. "Everything is political!!!!" is neither a true nor helpful statement. 

It's not meaningless. Even you admit it since you call it "neither true nor helpful" which indicates you understand exactly what it means.

The broadness of the definition is, of course, the entire point here. Political views influence decisions, even on the SCOTUS.

 

Quote

It's possible for people to have beliefs about things which transcend immediate political goals. I may think, for example, that universal health care is good policy and that society would be better off with it. I may also think that the Affordable Health Care Act is unconstitutional. These are not contradictory positions. TN's shallow form of legal positivism - which essentially dispenses with the entire idea of Constitutionalism as a check on the political process - is radical and dangerous, but more importantly, unhelpful for the purpose of facilitating conversation, especially when presented in such a truncated fashion. More is being hidden than revealed by his inartful phrasing.

You can call it radical and dangerous all you want, but that doesn't make it wrong. The SCOTUS doesn't always rule based on politics but they have before, will again and it's a key part of the entire process on many important decisions.

I mean, why do you think SCOTUS nominees are so valuable? It's to get people politically aligned with your interests on that bench to rule in favour of your ideas.

 

1 hour ago, Astromech said:

I thought the same thing as Nestor when I read "political question", but I share the same profession. We also may come across as pedants, and for that I half-heartedly apologize, but lawyers by nature and education are pedantic. That pedantry is often the difference between winning and losing cases. And the SCOTUS is often times the final arbiter of such pedantry.

Thankfully this isn't a court of law and so the pedantry in this case is neither relevant to the discussion, nor particularly useful. TN wasn't speaking legalese and y'all know it, so why the bullshit?

[NestorMakhnosLovechild]

4 minutes ago, Shryke said:

Thankfully this isn't a court of law and so the pedantry in this case is neither relevant to the discussion, nor particularly useful. TN wasn't speaking legalese and y'all know it, so why the bullshit?

I don't get the level of acrimony here. Astromech popped in only to say that he understands my misreading of TN's post, because he misread it the same way. I do not, on any level, understand why you would be elevating a non-issue with cries of "bullshit" and accusations of bad faith (ie: intentional) misreading. 

[Astromech]

1 hour ago, Shryke said:

It's not meaningless. Even you admit it since you call it "neither true nor helpful" which indicates you understand exactly what it means.

The broadness of the definition is, of course, the entire point here. Political views influence decisions, even on the SCOTUS.

 

You can call it radical and dangerous all you want, but that doesn't make it wrong. The SCOTUS doesn't always rule based on politics but they have before, will again and it's a key part of the entire process on many important decisions.

I mean, why do you think SCOTUS nominees are so valuable? It's to get people politically aligned with your interests on that bench to rule in favour of your ideas.

 

Thankfully this isn't a court of law and so the pedantry in this case is neither relevant to the discussion, nor particularly useful. TN wasn't speaking legalese and y'all know it, so why the bullshit?

I don't think we were being pedantic simply to be pedantic. It was a simple lawyerly reaction and response to "political question", especially in a thread discussing the SCOTUS and the law. I hope this helps clear up the misunderstanding.

[Mr. Chatywin et al.]

7 minutes ago, Astromech said:

I don't think we were being pedantic simply to be pedantic. It was a simple lawyerly reaction and response to "political question", especially in a thread discussing the SCOTUS and the law. I hope this helps clear up the misunderstanding.

Droids that lie about their ability to fly are by their very nature pedantic.

Now answer the question you blood sucking lawyer. Is there any legal or constitutional precedent that would allow agents of the state to deny governmental services to certain groups of people because of their religious views?