Below is my column in the Hill on the ruling this week in Moore v. Harper — and the coup that never happened. After months of dire predictions of a coup in the making, the Court overwhelmingly rejected the underlying “independent state legislature,” as some of us predicted. There was little discussion of the prior hysteria or attacks on the integrity of the conservative justices. Political and media pundits will simply move on to the next jump scare item on the docket.
Here is the column:
The fall of American democracy arrived yesterday morning with a thud.
For months, liberal law professors and pundits have filled the media with dire predictions that the Supreme Court was about to carry out a long-planned “coup” and “power grab” — one even wrote that the court could be on the brink of establishing “one-party rule” in the United States.
The dire warnings concerned a hearing of an appeal in Moore v. Harper, in which North Carolina legislators argued that state courts could not override state legislatures on federal election districts. The “independent state legislature” (ISL) theory has never garnered great support among constitutional experts, and many of us stated that we doubted that the Court would embrace the theory.
That did not stop liberal groups from raising the alarms — and more importantly the donations — off the case. Nothing fuels election fundraising like abject fear. Notably, many of the greatest alarmists were also pundits who previously called for packing the Court to install an instant liberal majority … to save democracy, of course.
Harvard Professor Laurence Tribe called for such a radical change after the Republicans won the 2016 election, declaring that “the time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power.”
It does not matter that this term, as in prior terms, a majority of cases have been decided on a unanimous or near-unanimous basis. It does not even matter that the court, with its conservative majority, has delivered repeated victories for the Biden administration, including last week’s 8-1 ruling in favor of President Joe Biden’s immigration policies.
Likewise, it will not matter that the conservative “coup” never came. Chief Justice John Roberts demolished the ISL theory as a barrier to judicial review.
From the prior coverage, one would expect an announcement that the three dissenters in the 6-3 decision — Justices Clarence Thomas, Neil Gorsuch and Samuel Alito — would be granted exile in Belarus after the failed coup. But actually, only Justices Thomas and Gorsuch embraced the theory. Alito only sided with the minority on the grounds that the case should have been thrown out as moot.
It turns out that there were no “right-wing justices making up law to create an outcome of one-party rule,” no “activist, conservative majority … untroubled by violating long-established precedents when they get in the way of achieving its substantive political ends.”
Dennis Aftergut had even warned readers that this was all part of a grand effort of the far right in pumping dark money into the courts: “You don’t need to read the tea leaves to see where the court’s far-right wing wants this to go. Just follow the money,” he wrote.
But the left’s use of dark money does not appear to be as much of a threat to our existence. Critics point to such groups as the Sixteen Thirty Fund, “a nonprofit incubator that provides its tax and legal status to nonprofits, which allows them to avoid filing publicly available tax forms. The Sixteen Thirty Fund is managed by the Washington, D.C.-based consulting firm Arabella Advisors, which oversees a large network that pulled in $715 million in secretive donations for left-wing groups and causes it houses in 2019 alone.”
Demand Justice, headed by former Hillary Clinton aide Brian Fallon, is tied to that dark money group and is leading the charge to pack the court. Fallon once responded to the disclosure of the Clinton campaign funding the infamous Steele Dossier by calling it “money well spent.”
Nothing says democracy like dark money and false conspiracy theories.
In fairness to some of the less bombastic critics, the acceptance of the independent state legislature theory would have produced a radical change in how elections are handled in the United States. However, Moore v. Harper quickly devolved into the latest example of hysteria over a conservative cabal on the court.
The fact is that the independent state legislature theory was based on a good-faith but clearly minority view of the meaning of one line from Article I, Section 4 of the Constitution, referring to the “Manner of holding Elections for Senators and Representatives…prescribed…by the Legislature thereof.”
Many legitimately feared that barring judicial review would invite gerrymandering. Again, however, many of the loudest voices were the least compelling.
The court-sanctioned Marc Elias warned of the conservative plotting around Moore v. Harper but was himself accused of trying to rig elections for the Democrats. Elias, the former general counsel to the Clinton campaign, was a critical figure in pushing the Steele Dossier and false Alfa Bank allegations. He was also accused of lying to the media when asked if the campaign had funded the dossier. Elias was also involved in Democratic gerrymandering efforts and even made his own election machine conspiracy theories.
The grand conspiracy behind Moore v. Harper was explained by Quinta Jurecic in The Atlantic, that “any state-level effort to upend the 2024 presidential election on the basis of … the independent state legislature theory would depend, in part, on the fact that the theory is difficult for laypeople to understand — and therefore open to distortion.”
It was apparently equally difficult for the Supreme Court to understand.
The court will continue to issue some divided opinions along ideological lines. Indeed, we are waiting for cases that are likely to break along those lines this week. These justices hold consistent jurisprudential views that will continue to be manifested in their opinions. However, for every case with six conservatives voting together, there seems to be one with three conservatives voting together in dissent.
The liberal justices are rarely portrayed in the mainstream media as ideological robots or dark-money cutouts. After all, they are viewed as right on the law.
Fear not, however — the next Supreme Court coup conspiracy theory is likely already in the making.
Jonathan Turley is the J.B. & Maurice C. Shapiro Professor of Public Interest Law George Washington University Law School.
Jonathan: There is another “coup” you don’t want to discuss. That’s the one on Jan.6, 2021 that Jack Smith is investigating. Salon is reporting today that Smith and his team are quietly going about finding out all the people who played a role in trying to subvert the 2020 election. Last week Rudy Giuliani sat for a “voluntary interview” with Smith’s team. They have offered Giuliani a “proffer agreement” which means Giuliani can escape prosecution if he comes clean and voluntarily testifies before the grand jury without a subpoena. Giuliani is a key player in the attempted “coup” on Jan. 6. He was at the Wilard Hotel and part of the plot by John Eastman, Sidney Powell, Steve Bannon and Trump’s boorish advisor, Borish Ephstein. who all plotted the “coup”. Giuliani definitely knows where all the bodies are buried!
So if Giuliani flips, Trump’s goose is cooked! CNN legal analyst Norm Eisen says there’s only “one reason” Smith’s team would take a proffer from Giuliani: “”They’re considering ways to move up the Jan. 6 food chain, that’s ominous for Trump”. Former Watergate prosecutor Nick Ackerman says that “if he [Giuliani] comes totally clean here, Donald Trump is in big trouble, right down the line, possibly General Flynn, Roger Stone, Steve Bannon”.
If Giuliani agrees to cooperate with Smith’s team he will join Mark Meadows –who Trump now considers a “rat”. Most legal experts agree Jack Smith is nearing charging decisions over Jan. 6. And the list of potential defendants is as long as your arm!
The so-called Jan 6 “coup” was merely a bunch of stupid people causing a minor riot. My liberal friends and I agree on this point. There was no “coup” attempt. You’re blowing this so far out of proportion.
This has all been idiotic nonsense from the start.
First the ISL argument presented tot he court was both constitutionally sound and not especially radical.
It did not eliminate ” state judicial review” or even the role of the executive in determining election laws.
Both of which do NOT appear to be valid constitutionally.
All it did was constrain the State Supreme courts.
I would further note that it did NOT preclude FEDERAL judicial Review – that is NEVER going to be possible.
While I think STRICTLY following the constitution is the correct choice for the courts.
Ans Strictly following the constitution MEANS:
Federal Election laws are determined by the STATE LEGISLATURES PERIOD. They are administered as written by the State Executive – to the extent the exective has any role at all. The State courts have little or no role, and judicial review is by the FEDERAL COURTS.
After all these are FEDERAL elections. States can do as they please regarding State elections.
That said ISL is fundamentally a procedural matter. And there is NOT some objectively correct procedure. There is ONLY the one dictated by the current federal constitution.
The idiotic claims of the left are just that.
It litterally does not matter procedurally how the power regarding elections is disbursed.
There is no perfect way to do so.
I would further note that THIS case was specifically about Gerrymandering. Which is an area the courts should Get the Heck out of completely.
Contra the left and sometimes the right – gerrymandering is NOT a problem that requires a judicial solution.
The negative impacts of Gerrymandering are VASTLY overstated. It is not EVER possible to gerrymander a minority into a majority.
It is only possible to SLIGHTLY amplify an existing majority and then only at the very significant risk of losing everything if there is a small shift in the electorate.
There is no objectively correct way to determine representative districts. Nor as rotten as some things that have been done in the past are, is there some means that is so offensive that it requires courts to intervene.
The Fundimental issue that ISL was trying to address – is NOT gerrymandering or redistricting.
The correct answer regarding those would be for SCOTUS to severly limit the criteria for ALL courts to intervene This is just not a legitimate judicial matter.
The fundimental problem one that goes beyond elections that we see throughout the US that SCOTUS SHOULD do something about, is that
at the state of federal level if Left wing nuts capture ONE branch of government they are inevitably able to do whatever they wish.
In 2020 State courts – with no legitimate authority to do so PERMANENTLY changed our election laws in much of the country.
The most egregious case was NOT NC – But PA where the court createdly blatantly unconstitutional election law that had nothing to do with the state or federal constitution, or with state law.
And that is the REAL problem.
Again this is NOT really confined to election law – we see it within the Biden administration – and many states – where the executive is creating new law in areas like immigration or firearms without any involvement of the legislature.
While I beleive the ISL argument was constitutionally correct and no threat to government, it is a bandaid on the wrong problem.
The real problem is that Courts – State and Federal MUST get out of the business of Legislating. They can STRIKE laws that are unconstitutional or that conflict with existing law. But they can not CREATE laws.
Courts can strike laws – on constitutional grounds. They can not CREATE laws.
Executives get the power to veto laws when legislatures pass them. They do not get the power to subsequently ignore them or alter them.
What we have today driven by the left has INVERTED state and federal constitutions AND “the rule of law”.
Our system of govenrment DELIBERATELY makes creating new law HARD. Requiring the POLICY consent of both the executive and the legislative and the Judiciary determination that the law is constitutional and not at odds with existing law.
No branch of government is supposed to UNILATERALLY have the power to impose its will.
But that is no longer what we have.
The ISL is flawed theory. That’s why it remains just a theory and the Supreme Court rejected it.
The courts serve as a check on the legislature or the executive. ISL posits the courts don’t have the authority of judicial review in matters of election laws. That’s false.
Courts interpret the law and judge it according to their individual state constitution. The theory circumvents that by applying the constitution. It wasn’t meant to be used in such a manner and the court recognized that.
“The ISL is flawed theory.”
Because you say so ?
It is BTW NOT a theory, it is the plain language of the constitution.
As I noted – I think that Conservatives are attacking the wrong problem in the wrong way.
ISL is purely procedural. It is neither right nor wrong, it has no moral value. It is just the way that the constitution dictated that elections should be managed.
As the Constitution is written FEDERAL elections are the domain of the FEDERAL government AND State legislatures.
The constitution could have said they were exclusively the domain of the federal government.
It could have said that they were exclusively the domain of the states.
But it did not.
Republicans are pushing ISL because for some time – but espeically in 2020 and since State supreme courts – especially in purple and pink states have been ignorning the law and the constitution and remaking election law as they please.
That is the real problem.
That combined with another issue that merely hearing the ISL case completely overcomes. And that is that HISTORICALLY the federal courts can not rule on the states application of state laws and constitution.
That is perfectly fine for purely state matters – but Federal elections are a Federal Matter – where the constitution has delegated SOME power back to the states.
If you actually paid any attention to the Court arguments on Moore, you would know that EVERY supreme court justice accepted this as a problem.
I have not read the Moore decision – but as it has been represented – Roberts while refusing to adopt any formal rules regarding the constraints state courts have regarding federal election, he still came SQUARELY down accepting federal courts oversight of State Court Election decision.
Essanetially Roberts atleast partly adopted almost the oposite of ISL. He adopted the Federal courts as the constraint on state courts, rather than establishing bright lines.
I think that is a mistake – it will mean more litigation. As represented Roberts opinion says as much.
Regardless, the core problem with ISL is not that it is wrong – it is the only constitutional approach.
It is that it does not really solve the problem.
And the core problem is that the courts as a whole have become politicized.
The recent WI supreme court election hinged on a fight over gerrymandering.
Something the supreme court should block ALL courts from addressing pretty much at all.
Contra the left (and sometimes the right) Gerrymandering is a dangerous game for those involved in it.
The more you try to gain advantage by gerrymandering the more likely you are to be obliterated by a small wave election in the oposite direction.
There is no reason for the courts to get into fights over matters that are purely political and have no objectively correct answer.
This is a broad rule we should adopt regarding elections – GET THE COURTS OUT OF ELECTIONS as much as possible.
Whenever courts are forced to rule on elections – They will ALWAYS be viewed as politically corrupt.
We can minimize the involvement of the courts in elections.
A part of that is by conducting elections that are self evidently trustworthy and transparent.
Quit this nonsense of 50 bazillion ways to vote. In person voting on election day with photo ID and a paper ballot
counted publicly at the precinct you vote at.
Runoffs for close elections.
The above are suggestions the point is easy
1). KISS – keep it simple stupid.
2). Transparency.
3). Keep scale small
4). resolve problems structurally – without the courts if at all possible.
It is a theory. Nothin more. It’s been rejected by the Supreme Court.
More left wing nut abuse of words.
For several generations the Supreme Court found that people owning other people was constitutional.
Were they right ?
Buck V Bell remains good law today – Scotus – lead by none other than progressive justice Oliver Wendel Holmes determined that it was constitutional to sterilize people without their consent. That is STILL good law today. It was cited in recent Covid related cases.
The Supreme court decided that it was OK to lock up people born in the US for years because their parents were born in a foriegn country.
Yet, the constitutions forbids taking away anyone’s rights – including their freedom without due process – finding them guilty of an actual crime.
The claim that the supreme court has found something constitutional or unconstitutional does not have much weight today.
Not just because of past errors – but specifically because those like you have changed the role of the court from determining constitutional vs. unconstitutional to determining good vs bad.
The two elections clauses in the constituton are not ambiguous. They are not heaping with grey areas. Federal elections are FEDERAL, they are not state elections. The constitution has Shared some FEDERAL power over elections with state legislatures. Not with States generally.
If you think that was a bad choice – amend the constitution.
SCOTUS erred – as they often do, by not following the plain text of the constitution.
There are cases where it is not nearly so clear what the meaning of the constitution is.
This was not one of those.
You want to debate whether ISL is a good idea – go ahead. I do not think it is either good or bad. Except that it is only a bandaid on the real problem.
I would further note that Roberts decision as I have heard, while not stripping state courts of judicial review over elections, separately made it clear that unlike other state laws, State courts do NOT have the exclusive dominion over state election laws.
Roberts essentially elected to move towards solving the problem a different way. Roberts was wrong about ISL, But he is correct that Federal courts do have jurisdiction over state election laws.
Even the right calls it a theory. It’s no use trying to pretend it’s not. Because it’s not accepted as established fact thus it remains a theory. Roberts said state courts had judicial review powers over state election laws. He basically said those powers are not absolute. The ISL made a claim of an absolute, denying state courts any judicial review of state election laws. The theory depends on that absolutist stance to work. Clearly it doesn’t. It relies on the theory that the constitution makes no mention of judicial review. Realists understand that’s not how it works. Even originalists find themselves twisting their own principles because their approach is unworkable.
“Even the right calls it a theory.”
That is not an argument.
But yes, they do – in the same way as Evolution is a theory.
Neither you nor they understand the meaning of the world theory.
You both managed to use it in completely different and incorrect ways.
The constitution specifies that federal elections are the domain of congress and state legislatures.
The language is NOT ambiguous.
The constitution does not use the words state legislatures – unless that is precisely what it means.
When the constitution delegates or specifies that a power belongs to the state as a whole – it says State – not state legislature.
There is nothing unclear about the language in the constitution.
“It’s no use trying to pretend it’s not.”
I am not pretending anything. The constitution specifies that state legislatures are responsible for elections.
It is no more a theory than that the president is commander in chief of the arm forces.
That is not a “theory” either.
A theory is a hypothesis that has no consequential contrevening hypothesis. That fully explains reality.
The word theory has no place at all in law.
You are using theory in more in the sense of hypothesis or proposal. That is a poor use of the world theory.
They are using the word theory in much the same was as Evolution or Einsteins theory of relativity.
You can have a “theory” – though more correctly that would be a guess or hypothesis regarding how someone committed a crime.
When a lawyer talks about a theory of the law itself – they are misspeaking – probably attempting to engage in deception.
The law means what it says. To the extent that is ambiguous we have a clear set of rules for statutory interpretation, that if followed resolve the ambiguity.
In the event that after doing so – the law is NOT unconstitutional AND still ambiguous – then it is void because of that ambiguity.
Is that how things actually work in the real world ? No. But only because humans are biased and are incapable of following the very rules they developed over time.
The failure of humans to follow their own rules does not void the rules. It does not change the law. It does not change the constitution.
“Because it’s not accepted as established fact thus it remains a theory.”
All you are doing is pointing out that the courts have failed.
The laws of mathematics do not change because YOU do not accept them.
Even in the unlikely event that humans misunderstand and mistate the laws of mathematics – that does not mean those laws are themselves malleable.
While law and constitution is SLIGHTLY different – Because we make the laws and constution – the principle is still the same.
The law says what it says – even if some refuse to accept that.
Even if the courts refuse to accept that.
This is error. It is not the legitimate role of the courts to reject the plain language of the law.
I have no problem if you wish to argue that ISL is not a good idea. Personally I think it is neutral. It is a band aid on a bigger problem – the one we are debating. That the courts and the executive branch have gotten outside their legitimate role of following and enforcing the law, and into creating law from hole cloth.
Again – this is a reflection fo the common filure of the left – take control of a single tiny part of government and leverage that to impose your will by force.
There is a reason that We create law through legislatures, and that amending the constitution is incredibly difficult.
Our entire system of government is deliberately ANTI-AUTHORITARIAN, it was deliberately constructed to give the federal government significant power, but toi make the use of that power incredibly difficult. And that is as it should be. It shoudl be that way – not because that is “good” or “bad”,
But because the laws of nature – as well as human nature dictate that is the only way that self government can actually work.
As I have noted – it is no accident that when the left gains power – that they FAIL directly proportionaqte to however much power they excercise.
The left as a whole has exactly the same problem that YOU do – an inability to consider more than the first order impacts of anything they do.
You have no understanding of moral hazard. You have no understanding that the physics principle that every action has an opposite reaction – goes well beyond physics. Everything that is done – whether by government or individuals triggers recursive reactions. MOST of the time these work AGAINST whatever is being done. SOMETIMES the “reaction” or the some of nested reactions is far larger than the direct consequences of the initial action.
We spent $6T to prop the economy up in response to Covid – atleast initially both Republicans and democrats gleefully joined to do so – even if they had slightly different ideas as to how to spend all that money.
But they considered only the first order impacts. They did not consider what dumping $6T into an economy that was NOT producing $6T in additional value would do – that despite the fact that it is Econ 101. Many many reputable economists – mostly on the left, In much the same way as judges from the left,
allowed political biases and wishful thinking to cloud their judgement and ignore fundimental facts.
Dumping $6T into an economy – without a $6T increase in productivity does not “cause” inflation. It litterally IS inflation.
Regardless, the point is that YOU do not think beyond the first order impacts of your actions – and atleast 9 times out of 10 – and likely more the results will be net harmful – not positive.
I can take nearly every signature accomplishment of the left and demonstrate how it has proven harmful. And Republicans are only a little better.
But it does not matter. You are going to do what you are going to do. And it will fail.
“Roberts said state courts had judicial review powers over state election laws.”
And he is wrong – and not the first time. Federal courts do. State courts do not.
“He basically said those powers are not absolute. The ISL made a claim of an absolute, denying state courts any judicial review of state election laws.”
You are clearly clueless about the FACTs of the case.
Just to be clear I am NOT arguing what the plantiffs in Harper argued.
I am arguing for zero or nearly zero role for State courts in federal elections.
But states courts have the normal powers of states in elections for STATE offices. Just not the selection of electors, the president, federal senators and federal representives.
State courts can do whatever state constitutions and laws empower them to do with regard to elections for governor, or state legislatures or other non-federal posistions. And they can do so with no judicial review from federal courts.
All the above said the Plaintiffs in Harper did NOT argue for Absolute power for the state legislature. They tried to square the language of the constitution with 2+ centuries of caselaw and practice. They did NOT argue that State courts have no power of judicial review, They argued that their power of judicial review was LIMITED.
In FACT Roberts oppinion AGREES with the plantiffs – in everything EXCEPT that the plantifs proposed a bright line rule for wat the state courts could and could not do, and when the federal courts must intervene.
All Roberts rejected was formulating a bright line rule.
Harper – even as Roberts decided establishes more strongly than ever before that the deference traditionally given to state courts concerning state laws no longer applies regarding Federalk Election laws.
AS Roberts is wont to do. Instead of Following the Constitution. Roberts tries to construct some idiotic vague resolution that broadens the power of federal courts without clearly specifying them.
Whether a Roberts decision favors the right or the left – you can pretty much count on the fact that any decision written by Roberts will be clear as mud and will with certainty bring the same issue back to the courts in the future.
That too is ALWAYS a failure of the courts.
Even when the courts get it WRONG, it is far better for them to do so CLEARLY and with Bright lines.
“The theory depends on that absolutist stance to work.”
To be clear – whenever you use the word theory – I am ignoring it.
You do not know how to use the word,.
As to Reality – the Harper plaintiffs did NOT argue for an absolutist stance. I would strongly suggest you listen to the oral arguments or read the briefs – because you do not know what you are talking about.
I am arguing a near absolutist position – because that is what the constitution says. and we are obligated to follow the constitution – changing it if we do not like it.
Otherwise I do not care much about ISL.
But that is NOT what the Harper Plaintiffs argued.
Except for the fact that the Argued for the Supreme court to provide a bright line rule – which is ANOTHER duty of the supreme court, regarding when State courts had judicial review powers over state elections and when they did not. There is no difference between what the Harper plantifs wanted and what Roberts ordered.
The ONE part of Roberts decisions that is CORRECT, is that he made clear that the power of the federal courts to review state election laws is far less constrained than it was in the past.
The Harper Plentiffs WON the part of the argument that state courts do not enjoy the broad immunity from judicial review in Federal Elections that they do in other state laws.
That too should be a no brainer. These are FEDERAL elections – something You constantly ignore.
The position of the left – or more accurately the position of the MOMENT of the left – because in the currnet political environment they think that is advantageous to them, is that State courts have limitless judicial review of Federal Elections – but Federal Courts do not.
Roberts did NOT give the Harper Plantifs the bright lines regarding the limits of state court judicial review of federal elections.
But he whole heartedly accepted that the Supreme Court of the united States has the power to do so. Amd his oppinion pointedly warns that they are likely to do so even more in the future.
This is a typical Roberts opinion. Do not solve a problem. In this case he atleast did not actually make things worse. Postpone real decisions into the future and wag your tongue threateningly.
While this opinion is NOT one of his worst, and frankly it is a step int he right direction – even if he refused to follow the constitution,
it is at the same time a pretty good example – as are nearly all roberts decisions of how to NOT do the job of the Supreme court.
I have told you that SCOTUS has a duty to follow the constitution CLEARLY.
They also have a duty – even when they do so WRONGLY – to actually decide the issues before them.
It is Better for SCOTUS to paint a bright line that is WRONG, than to leave things up in the air or push hings a squishy bit one way or the other.
While Roberts is not litterally a left wing nut – his Failure is the same as all left wing nuts. A failure to understand – as you do not that the law not only is to the greatest extent possible black and white – but it MUST be.
Chaos is fine in our private lives. It is the enemy of self government.
The rule of law – not man REQUIRES that if we want to all of us can be certain what the law is and conduct our lives accordingly.
The claim that ignorance of the law is no excuse only holds water if the law is actually clear.
You are free to not know what the law is.
But government is not free to impose on us laws that are not knowable.
Equal protection for the law – requires that we are each treated the same under the law ALWAYS.
While that is an aspiration – rather than reality – it is also a principle that we can not CHOSE to violate.
We can do so accidentally – life is messy, and ambiguous. But we can not do so deliberately.
This is the part of reading the law you do not grasp.
I will freely admit that humans are just to subject to their own biases, and insufficiently good at logic and reason to scrupulously follow the rules that we have spend millenia crafting. But that weakness is NOT a feature – atleast not in Government.
“Clearly it doesn’t. It relies on the theory that the constitution makes no mention of judicial review.”
Nope, Judicial review of the law and constitution is a given – just as following the rules of staturoty interpretation are a requirement of Equal protection and Due process.
The Issue is not whether election laws are subject to judicial review – but whether they are subject to State Court Judicial review.
The constitution clearly says Federal Elections are NOT the domain of the State Courts and State Executive.
It does not remove election laws from Judicial Review. Just from the power of state courts.
I would further note – that while that is what the constitution clearly says.
It is NOT what ISL argued. If you had actually read any of the breifs or listened to any of the arguments,
you would know that the Harper Plantifs had no desire to end State court judicial review.
Only to Constrain it with bright lines. BTW even though Justices such as Jackson and Kagan did NOT accept the Plantifs proposed Lines – they absolutely accepted the FACT that more federal court review was necescary. They absolutely accpeted the FACT that State courts had gone Bonkers in 2020 Elections and were going to need more oversite.
The problem is that is NOT the role of the courts. It is not for the courts to decide to limit the power of state courts – because they are screwing up and need review of federal courts. It is SCOTUS’s role to apply the constitution AS WRITTEN – and if that does not work – to step back and let the rest of us change the constitution.
SCOTUS is there to remedy unconstitutional or unlawful behavior by government. Not to decide whether the results of following the law or constitution are good or bad.
The moment you decides that courts have a role in Fixing things – if the law or constitution as they are written do not work – you have invested them in power they do not have and you have destroyed constittional separation of powers.
But that has always been the objective of the left – get what you want – by any means necescary.
“Realists understand that’s not how it works.”
You are not a realist. What I have described is ACTUAL realism. It is a system that always strives to eliminate human biases and always moves towards clarity.
YOU nonsense is completely unrealistic – it guarantees failure. As I have addressed in this post and before – Your approach FAILS – nearly always.
It FAILS because you are about as far from a REALIST as is possible. Instead of trying to constrain the problems that humans have in governing themselves – you seek to AMPLIFY those problems – and then wonder why chaos and conflict are amplified and things do not work.
I am libertarian – not republican. I share more of the goals of the left than of the right. But I do NOT share the ends justifies the means approach of the left.
I do not share the idiocy that trying to do what we beleive to be good things by FORCE will ever result in a net good.
If a master tells a slave to go and help a neighbor – Who accrues the merit for that good work ?
The slave can not – they merely did as they were ordered.
The master can not – they did nothing good themselves and any possible merit is dwarfed by enslaving another human.
Doing good is an individual responsibility. It can not be done through govenrment or by force. Doing so corrupts the good you attempt to do.
This failure to understand the difference between negative morality – thou shalt not, which is the legitimate domain of government
and postive morality – which is completely unacheiveable, and absolutely not the domain of government, is the defining failure of the left.
From each according to their ability to each according to their need is a recipe for massive failure. It is entirely at odds with human nature and nature itself, and that is whey it has always lead to failure and usually to massive bloodshed.
You are the one living in some fairyland – while creating a very real dystopia in the process.
“Even originalists find themselves twisting their own principles because their approach is unworkable.”
I am not here to defend others. Though your understanding of originalism is laughably flawed.
Regardless, I will be happy to entertain any proposal on your part that meets the requirements of the rule of law.
Whether you like it or not the corollary to “ignorance of the law is no excuse” is that the law MUST be clear and knowable to all it applies to – atleast to the extent that is humanly possible.
The actual rules of statutory interpretation most of which are centuries old and which you are blissfully ignorant of do a fairly good job of providing that.
This is from the rules of the courts for Colorado – but throughout the country and the federal govenrment the plain language rule is the First rule of statutory construction
“Plain Language
The court is bound to apply the plain language of a statute to accomplish the intent of the General Assembly. If the language is clear and unambiguous, the court will not look to rules of construction or to legislative history; it will simply apply the language.”
I did not decide this, every state in the country and as well as the federal courts have established this. In many state this rule is in that states constitution.
Regardless, Again – propose a set of rules for reading the constitution and the law that if followed carefully will ALWAYS produce the same results, regardles sof the court, and regardless of the time.
That is the requirement of “the rule of law – not men.”
If you can not do that you do not have the rule of law.
Each of us are free to choose to be ignorant of the law.
But govenrment is not entitled to impose upon us law that we could not follow if we wanted. Eitehr because that law is absurd, or because it is not clear.
If two different courts produce different results for the same facts and the same law – One is wrong.
They are not wrong – because the result is good or bad. They are not wrong because you feel they are wrong. They are wrong because they did not follow the law as written.
You say I am not realistic – but you make almost no arguments that have anything to do with reality.
The authority behind everything you say is your feelings regarding how things should be.
Not whether what you FEEL should be will actually work.
You have all but explicitly endorsed – even encouraged a legal system in which it is not possible to know what the law is.
I can not even see how by your reasoning – lower courts are required to follow the decisions of the supreme court.
Please explain to me how your “Realism” is anything more than legal chaos. How it is different from the law is whatever some judge I favor has decided recently.
While we both accept that ambiguity exists. – I and millenia of the progress of law have actively sought to minimize ambiguity – while You revel in it. You seek to amplify it.
You have not offered a single bit of guidance on how we minimize legal uncertainty, constitutional chaos.
Your position Actively encourages it.
It is little different from Levanti Bria’s – “show me the man and I will show you the crime”.
How well did that work out ?
If you are going to claim to be a realist – you must offer something that is not going to make reality WORSE.
Evolution is only a theory.
ISL is the plain text of the constitution.
You do not seem to know what a theory is.
Evolution is a theory because it’s still changing, pardon the pun but it’s an ongoing evolution of ideas. That’s why it’s a Theory.
ISL is also a theory no matter how hard you claim it is not. The constitution is vague on the what is ISL. It does not specifically say what ISL is theorized it says. It’s an interpretation that is dependent on… a theory. The right calls it a theory those who support it call it a theory.
Scientific theory and political theory are not the same. There’s a rhetorical distinction.
“Evolution is a theory because it’s still changing, pardon the pun but it’s an ongoing evolution of ideas. That’s why it’s a Theory.”
You are as ignorant of science as you are of law. Do you actually beleive the nonsense you are spouting.
What aspect of the mechanisms of evoltuion has changed in the past year, the past decade, the past century ?
The only consequential change in the mechanism of evolution Since Darwin has been the discovery of DNA – and that was 70 years ago.
There is a massive difference between we do not know what specific influences drove the ancestors of Chimapnzees to evolve into Humans
and the teory of evolution is constantly changing.
“ISL is also a theory no matter how hard you claim it is not.”
Because you say so is not an argument.
The constitution says that control of federal elections rests with congress and state legislatures.
“The constitution is vague on the what is ISL.”
The congress does not mention ISL. It explicitly states the role of the state legislatures in elections.
The absence of any mention of state executives or state courts is not vagueness. It is clarity.
The constitution enumerates powers. {If it does not convey a power, you can not manufacture it.
You are free to have the constitution that you want if you do not like the one we have – by changing the constitution.
This is called “the rule of law – not man” – it has taken us multiple millenia to evolve it and to grasp that without it man is not governable.
And youi claim to be a realist
“It does not specifically say what ISL is theorized it says.”
It specifies the power of congress and state legislatures over elections. They CLEARLY have the powers delegated to them.
It does Not delegate power over Federal elections elswehere.
You keep ignoring the FACT that we are discussing FEDERAL elections. These are NOT state elections. The only power states have over state elections are those the constitution specifically assigns. And the constitution specifically assigns some of the power regarding FEDERAL elections to the states.
The constitution specifies that the President is commander in chiif of the military.
Do the state courts have a say in that ?
The delegation of military power to the president is as clear as that to state legislatures.
Why don;t stte courts have judicial review over the military powers of the president ?
If the delegation of power to state legislatures is ambiguous – why is the delegation of military power not also ?
“It’s an interpretation that is dependent on… a theory.”
Nope, the plain language in the constitution.
“The right calls it a theory those who support it call it a theory.”
Back to that stupid trope.
Laches, Standing. Ripeness, Mootness, these are all actual legal theories – not one of them is present anywhere int he constitution or federal law.
I am not familiar with every single state law – but I would bet none of these is found in any state law or constitution.
Yet each of these “Legal Theories” determines the outcomes of cases all ver the country every day.
And each of these has far less staturoty or constitutional basis that the plain text of the constitution.
I have yet to here an argument that is anythng beyond – because I say so.
You invoke reality – as a defense – while Reality is at the core of what is WRONG with your entire ideology.
Regarless you are self evidently oblivious to reality.
You keep ranting about legal theories – again it is self evident you do not know what a legal theory is.
And you seem to think that incorrectly calling something a “legal theory” somehow diminishes it.
ISL is not a legal theory. it is the plain test of the constitution.
Standing is a valid and important legal theory – When properly applied.
Laches, mootness, ripeness, standing are all applied in ERROR, if the result allows a claimed harm to occur without any possibility of legal redress.
All of these “Legal Theories” serve a single purpose – to assure that when a case arrives at court it does so under the best circumstances for addressing its merits.
Each of these serves to block a specific plantiff, or to preclude a case being tried at the wrong time. Not one of them can legitimately prevent an issue from being litigated by someone somewhere at some time. If that is the outcome – then the courts have FAILED – and people do grasp that.
“Scientific theory and political theory are not the same.”
Correct, and you have no clue about either.
Nor have you made the slightest attempt to specify what you mean.
You seem to think that calling something a legal theory is derogatory. Is that True about Standing ?
ISL is NOT a legal theory any more than Free speech is, or than the president being the commander in cheif is.
Standing is absolutely a legal theory – a powerful and important one – when not improperly weaponized.
“There’s a rhetorical distinction.”
You are free to engage in all the rhetorical debates you wish in the domain of private life, or fiction or poetry,
At the core of our debate is your idiotic refusal to understand that you can not use force against others absent crystal clear justification.
And Government is force.
Science – which is not law, goes to extreme lengths to achieve near perfection in its expression. There is no fundimental requirement to do so.
It is just good for science. While poetry and fiction thrive on even require ambiguity.
The requirement for precision and clarity in law is far greater than science. Science does not impose force against us – atleast not real science – as opposed to the politicized bastardization of science pushed by the left.
“Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.”
The law and constitution must be as clear as is humanly possible – that requirement is far more important than clarity in science or math.
No mathematician or scientist can take your property, your liberty or your life.
Government can. The law is what defines the circumstances in which it can.
We do not ant that left to the whim of poets, or determined by whether some judge has indigestion, or has been infected by the progressive mind virus.
No the courts do not serve as a check on the legislature and the executive – atleast not as you imply.
They exist to assure that the law and constitution is followed.
NOT to determine how we should be governed – Beyond that the executive and legislature must follow the law and constitution.
The courts have no voice in “policy” only the law and constitution.
It is not for the courts to determine how things SHOULD be – even the executives role is limited in that regard.
Our system f checks and balances does not exist to allow a different part of government to accomplish what could not be acheived through the legislature.
Our system of checks and balances is a deliberate impediment to that. The objective was for each branch to RESTRAIN the other – not to act independently of the other.
ISL is not a “theory” it is not right or wrong, it is not how things should be or how they should not.
It is just what the constitution dictates. And if we do not like that we should change the constitution.
And Contra the left if is not anti-democratic – the legislature is the most democratic portion of govenrment – the courts the least.
It is not even a constraint on Judicial review. It is merely a constraint on STATE court judicial review.
Federal Elections are federal, Congress and state legislatures make the rules. And the FEDERAL courts assure they are constitutional and consistent with the law.
It is not necescary to limit the role of State Executives, or State courts, just as it is not necescary to include them.
There is not a right or wrong way to do this. But there is a constitutional and unconstitutional way.
And when the Courts – including the state courts and the Supreme court can not follow the constitution as it is written – we are just a little bit more lawless.
Regardless, the REAL problem is not whether state courts have Judicial Review of federal elections,
The real problem is that NORMALLY Federal courts have very limited review of State laws.
That is NORMALLY proper.
It is completely improper for Federal elections.
The REAL answer was the 20 state lawsuit to the supreme court regarding the 2020 Election.
Federal Elections are FEDERAL, and States – whether through their legislatures, Governors, or Supreme courts can not run FEDERAL elections in their states however they please to the harm of the citizens of other states.
The Supreme Court should have heard the Multi-state challenge to the federal election in 2020. And it should have determined THEN that states – especially through their courts and governors can no do whatever they please particularly at odds with their legislatures.
Though Frankly the Federal Courts should have fixed the problems BEFORE the election.
And the presumption should ALWAYS be that last minute changes whatever they are are improper.
Each branch serves as a check on the other.
It’s the entire premise of our governmental system.
That is true, but that is independent of this debate.
There is a difference between each branch of government serving to check the other, and it subsuming the role of the other.
Again – courts do not create law. That is not their job.
It is their job to stop the legislature from creating unconstitutional law. That is their check.
You are correct John, I note the several weak pablum replies, as usual, no substance, just the empty declaration.
The court grabbed power.
That’s the bottom line.
I disagree. The separation of powers inherent in our constitution is still in play. Almost nothing the Executive nor the Legislative branches do that affects citizens rights is beyond the scope of judicial review. And we citizens with no voice are grateful.
You are correct – but that was NOT the issue in Harper.
When actual rights are violated – the constitution is violated and it is the role of the courts to address that.
If you can make a compelling argument that the rights of citizens are being violated by election laws effecting Federal Elections – that is subject to Judicial Review in FEDERAL courts. If you can make a compelling argument that the rights of citizens are being violated in State Elections – that is subject to Judicial Review in STATE COURTS.
No one was Arguing otherwise. The question in Harper was the extent of the role of State Courts in FEDERAL elections.
Roberts declined to do what the constitution requires – and as Thomas pointed out – actually acted in violation of prior President.
While the Courts had not previously adopted ISL formally – myriads of prior rulings support elements of it. And the courts never formally rejected it either.
And in fact Roberts did not formally reject it. He just kicked the can down the road.
But What Roberts did do is Re-Affirm the Federal Courts Power to step into Federal Elections and reverse State Court decisions based on State Law and constitution.
The constitution is deliberately ambiguous. It’s supposed to allow for some nuance. Courts are there to determine if those nuances or laws created for our present society not the one created 200 years ago.
Courts are charged with interpreting law. Using not just the constitution but also other established laws deemed constitutional.
“The Supreme Court should have heard the Multi-state challenge to the federal election in 2020.”
They couldn’t. They had no standing. Texas was suing another state for not following its own laws. Texas had no standing at all.
“Though Frankly the Federal Courts should have fixed the problems BEFORE the election.”
Courts don’t fix problems legislatures do. Isn’t that your argument? Courts only determine what is constitutional or not. You seem to want to have your cake and eat it.
“The constitution is deliberately ambiguous. ”
Because you say so ?
“It’s supposed to allow for some nuance.”
Because you say so ?
Do you understand how stupid an argument this is ?
No the constitution is not deliberately ambiguous.
It is DELIBERATELY alterable.
And THAT is the actual means by which the claims you are making are ACTUALLY resolved.
Your argument is not merely garbage – it is totalitarian garbage.
You do not ever want ambiguity with respect to the use of FORCE.
While you are at least partly correct that human language is not capable of the precision necescary to avoid some degree of interpretation.
The OBJECTIVE of law and constitutions is the OPPOSITE of your claim.
I believe YOU previously argued that vagueness, ambiguity. is inherently UNCONSTITUTIONAL.
Have you actually thought of the consequences of your arguments ?
If the constitution “deliberately” contains the ambiguity you claim – then it can be read to justify anything.
We can re-instate slavery, we can deny women suffrage,
You are clearly the product of an abysmally bad education – your teachers owe you anything you or your parents paid in taxes back.
You NEVER consider the actual meaning of the claims you make.
John Adams famously included in the 1780 Massachusetts state constitution the concept of “a government of laws, not of men.”
That is precisely the OPPOSITE of what you are arguing – and for good reason.
Adam did not want precisely the ambiguity that you are claiming as a feature – because it isn’t.
It is the highway to tyranny.
Your model of legal interpretation runs against at-least 2 millennia of the evolution of law and government.
We have spent most of human history trying to escape tyrannical systems of government where what is law is determined by the whim of some men.
“Courts are there to determine if those nuances or laws created for our present society not the one created 200 years ago.”
Absolutely completely wrong.
This is a stupid argument.
While again you are correct that we are not bound to the law and constitution of those 200+ years ago.
We are always free to do exactly as they did and write a new constitution or amend the existing one – whatever suits us.
We are also free should government fail to earn our trust to alter or abolish it.
But WE has critical meaning. It does not mean 5 of 9 justices of the supreme court. It does not mean the majority of the house and senate.
It does not mean the majority of people.
Changing the meaning of the constitution requires a supermajority of us.
That is of critical importance. If you wish to further limit the freedom of any of us, you need the consent of nearly all of us.
Your argument is upside down. backward, and self evidently flawed.
“Courts are charged with interpreting law.”
You are abusing the word interpret.
Courts are required to use a process of statutory interpretation that we have spent more than 2 millenia developing.
That process starts with the plain text of the law and constitution – and if time has changed the meaning of words – then the meaning of the plain text at the time the law or constitution was enacted.
That is the FIRST rule of statutory interpretation – there are dozens of others where that rule is not sufficient.
Contra your claims about ambiguity and nuance – the exact opposite is reflected by those rules which courts are obligated to follow.
The objective of the rules of statutory interpretation is to ensure that ALWAYS two radically different judges with radically different ideologies if they follow the rules ALWAYS come to the same results.
We are rapidly approaching the point at which computers ability to understand human language is sufficient that in theory the interpretation of statues and constitution could be done by computer – rather than human, and much better.
The POINT is that the fundimental principole of “The rule of law” is Always to arrive at the same result from the same or very similar facts and law.
When we do not like the outcome of the process – WE CAN CHANGE THE LAW OR CONSTITUTON.
That is the CORE to the rule of law.
It is exactly the opposite of what you claim.
There is no requirement that the law and constitution be as those on the left, or those on the right wish.
But the “rule of law – not men” requires that the law and constitution as written ALWAYS means the same thing.
That we change by actually changing the law and constitution – not by playing games with the meaning of words.
Are you so daft that you deliberately want to return to monarchies, where the word of the king whatever it was was law ?
Because that is precisely where you are headed.
It is not critical whether the “ruler” is one man, or a committee of 9.
I doubt even you are so stupid as to believe the law and constitution are infinitely malleable regardless of their text.
The extent to which the law is clear to all is the extent to which society is stable and functional.
I would further note that one of the many reasons it has taken so long to evolve these principles,
is because the larger the scale of society and the more diverse a society is the greater the requirement that law be precise, and the more critical it is that the role of government is limited.
We absolutely need ambiguity and nuance to survive in a complex society. And that ambiguity and nuance MUST be outside of government – outside the domain of the use of force.
The larger the scale of society the more diverse society is the more the innate differences between individuals will chafe against the rigidity of government.
I am completely shocked that a generation and ideology that is the breakout from rigid sexual and gender norms can not grasp that natural variation in humans, and human behavior and human norms is pretty large, and that a system of government that is too rigid with respect to those will work absymally the larger the population grows and the more diversity their is within that population.
Ambiguity and nuance belong OUTSIDE of govenrment.
“Using not just the constitution but also other established laws deemed constitutional.”
You are writing about something we have spent more than 2 milenia working out.
And you are clearly unfamiliar with any of that effort.
Like the typical leftist, you think you can reject – without ever bothering to be familiar with it, thousands of years of huamn thought and development in areas such as law, And that you can do better – completely ignorant of what has come before.
In case you have any doubt – to the extent you get your way, you are GUARANTEED to fail.
“They couldn’t. They had no standing.”
False. Please read the actual constitution.
States have the power to sue other states, not only can they do so, but only the supreme court can here those cases.
While the constitution ABSOLUTELY grants the power of states to sue each other, completely separetely Standing itself is a extra constitutional aspect of the law.
Do you under stand what Standing even means ?
They can be NO claim of a violation of the law or constitution that SOME PARTY does not have standing.
There is no claim that you can attempt to bring to court that SOME PARTY does not have standing.
When courts address standing it CAN NOT be to prevent a case from proceding.
Standing is only a means to prevent a case from being litigated by a party that does NOT have sufficient interest in its outcome,
That is NOT harmed by the alleged claim.
Elections are FEDERAL, they determine the govenrment of the United states. This is espeically true of Presidential elections.
Every single person in the united states is harmed by election fraud or election lawlessness in a presidential election.
Not only does TX have standing – but ever single citizen does.
“Texas was suing another state for not following its own laws.”
Correct – in a FEDERAL PRESIDENTIAL election – Texas absolutely has standing.
Both specifically because the constitution empowers states to sue other states in the supreme court for the harms that they cause outside of their state.
This is a completely idiotic argument.
Can colorado dam the colorado rive and prevent any water from flowing to California and other states ?
Can Ohio dump raw sewage into the the watershe of the mississippi poluting the rive for all downstream states ?
Do these acts fall outside of any remedy just because those states pass laws allowing the to act as they did ?
States ALWAYS have the right to sue other states when the actions or laws of one state cause harm to others.
It is hard to imagine a more significant cause of harm to other states than to botch your own election laws.
“Texas had no standing at all.”
Only in your head.
“Courts don’t fix problems legislatures do. Isn’t that your argument?”
Nope., please learn to read.
“Courts only determine what is constitutional or not.”
Correct – state executives failed to follow their own laws and constitution.
It was the DUTY of state courts to require state executives to conduct elections according to the laws and constitutions of those states.
“You seem to want to have your cake and eat it.”
I not only Want – I am ENTITLED to have the laws and constitution FOLLOWED by those in the executive of my state and my country.
And THAT is precisely what courts exist for.
Not to create law,
Not to decide wheteher a law is good or bad.
Other branches of government have those powers.
The courts exist to assure that the law and constitution is followed as written.
The purpose of the courts is the exact opposite of your claim.
Rather than ebing their to make things up as they go.
They are their to STOP the executive from making things up as they go.
To require the executive to follow the law and constitution as possed by the legistature.
Adn to require the legislature to pass constitutional laws
What the courts are not there for is to step in and make law themselves when they do not like what the legislature has done.
Courts can invalidate laws that are unconstitutional. When they do, we return to whatever the law was prior to that law being enacted.
Courts can not change the law. They can not change the constitution.
They can not add to the law.
They can strike the law in whole or in some cases in part – if it is unconstitutional.
They can not step in to decide what replaces it. What replaces a law that is unconstitutional is whatever preceded it.
“Courts can strike laws – on constitutional grounds. They can not CREATE laws.”
You’ve outlined a spectrum of judicial behavior, but it isn’t black and white. Courts can find gaps in a law where some think it applies while others don’t, they can find conflicts between different laws, they can decline to act or act within limitations, and so on. Sometimes their doctrines stand a long time, sometimes they become recapitulated in statutory law, and sometimes they’re abandoned in ignominy.
“You’ve outlined a spectrum of judicial behavior, but it isn’t black and white.”
Reality is not black and white, to the greatest extent possible EVERYTHING about government MUST be black and white.
Corruption is the inevitable result when people are given power without bright lines regarding its use.
“Courts can find gaps in a law where some think it applies while others don’t,”
If there is a gap in the law – it is the responsibility of the legislature to fix it.
The most important point I was making was that Each Branch of Government has a specific responsibility WITHOUT much overlap.
Congress makes law. Not the president not the courts. Congress does not enforce the laws, it does not have the funal authority on the constitutionality of the laws it writes.
The executive has some input into creating laws- but ultimately laws are written by congress and at best the President can veto them.
The executive enforces the laws. They do not make them and they do not have final authority on their constitutionality.
The judiciary neither creates laws, nor enforces them. But it has the final word on whether they are constitutional, or in conflict with other odds.
It is not the job of the judiciary to fix bad laws. It is not their job to determine if a law is a good law or a bad law.
Only it is is constitutional and in conformance to other laws.
“they can find conflicts between different laws”
They can, and that is supposed to result in the invalidation of all or part of the new law.
It is NOT their job to fix the problem – we have a legislature for that.
” they can decline to act or act within limitations, and so on.”
Nope. The courts can NOT say – this law is unconstitutional but we will allow it.
“Sometimes their doctrines stand a long time, sometimes they become recapitulated in statutory law, and sometimes they’re abandoned in ignominy.”
I am presuming that much of what you call “doctrine” is the process the courts follow to evaluate the law.
This is not ideology, it is a combination of logic, and the rules of understanding text.
Logic atleast as appies here is absolute. But humans are falible – sometimes it takes us time to get the logic correct.
Absolutely any times you give humans a task and the power to perform it, they will be effected by their political biases.
Ethics is the process of rejecting ideological biases.
Why is it illegal to take bribes ?
Does it become legal – if the money goes to a good cause ? Does it become legal if the outcome is good ?
The ends do not justify the means.
“ It is not the job of the judiciary to fix bad laws. It is not their job to determine if a law is a good law or a bad law.
Only it is is constitutional and in conformance to other laws.”
You’re offering contradictory rationales.
It’s their job to determine if a law is bad or good. It’s their primary job. To determine if it’s in conformance with the cinstitutuon or other laws is determining if a law is good or bad.
A law can be deemed bad by the court because it’s too vague. That’s determining if it’s good or bad. Your statement is unequivocally wrong.
“You’re offering contradictory rationales.”
Because you say so ?
Please point out the contradiction.
“It’s their job to determine if a law is bad or good.”
Nope, it is their job to determine if a law is constitutional or not, or if it conflicts with other laws.
That alone is a hard enough task.
Deciding whether a law is good or bad is a POLITICAL task that belongs solely to the legislature.
Unless you are a complete moron – you can look to washington and see TRIVIALLY that we do not agree on what is good and what is bad.
I would note that Right and Wrong are NOT the same as good and bad.
Watch the trial of Adolf Eichman. He truly beleives that genocide was GOOD.
Marx, Lenin, Mao, hordes of communists beleived that what they sought to do was so GOOD that murdering tens of millions of people was justified.
The vast majority of us know before we reach adulthood when killing others is right and when it is wrong.
You can go into most any criminal court and find plenty of people who killing them would be a good thing. The world would be better for their death.
That does not make killing those people Right.
The difference between right and wrong and good and bad is the difference between the rule of law and the rule of man.
Right and wrong rest on near universally shared values and principles. Good and bad as often as not rest on self interest or ideology.
It is not the courts role to determine good or bad. Whether you like it or not – there are no objective criteria for good and bad.
We can strive and often succeed at determining what is constitutional and what is not.
And if we do not like the results – we have the power to change the constitution. But not based on the opinion of one judge – or 5 of 9 supreme court justices as to what is good and what is bad.
Your idea of how to read the law leaves us with an unstable and uncertain chaotic mess, and while we can tolerate – even benefit from some chaos in our lives.
We can not have chaos and uncertainty in questions regarding the use of force.
“It’s their primary job. To determine if it’s in conformance with the cinstitutuon or other laws is determining if a law is good or bad.”
No its determining if the law is constitutional or not. Everything that is constitutional is not good, everything that is unconstitutional is not bad.
I have stated that I do not think ISL will ultimately solve the problem conservatives seek to solve.
But ISL IS constitutionally correct.
What you appear to claim is contradiction rests on FALSE assumptions on your part.
“A law can be deemed bad by the court because it’s too vague.”
No it is deemed unconstitutionally vague.
Vague laws are likely bad. But they are not struck down because they are bad, but because we can not have due process, equal protection, or any of our constitutional rights when laws are not clear. A lack of clarity on the part of the law is unconstitutional – whether the law is good or bad.
“That’s determining if it’s good or bad.”
Nope.
Good and bad, and constitutional and unconstitutional are not synonyms.
In fact paradoxically the courts upholding constitutional but bad law is GOOD.
If you beleive a law is bad (or good) address that with your congressmen.
Determinations of good and bad are not the role of the courts.
“Your statement is unequivocally wrong.”
You have failed miserably at demonstrating that.
In fact it is YOU that are unequivocally wrong.
I would further note that the failure of the courts to stick to constitutional/unconstitutional and lawful/unlawful ultimately results in bad – evil.
The courts trying to determine what is good and what is bad ultimately results in BAD.
I am making fairly black and white statements.
“Gray areas” obviously exist. But it is NOT the role of those in govenrment to expand the grey areas as large as possible to allow them to do as they please.
It does not matter whether that is being done for personal gain or some alleged common good.
The role of those in government ESPECIALLY the courts is to REDUCE the grey areas as much as possible.
Not to grow them.
Absolutely every foray into the gray areas is not criminal. But MOST are, and the broader the grey areas are and the less dedicated we and especially the courts are to constraining them, the more corruption we will have.
The courts are there to determine if grey areas can be used as part of interpreting law. When laws are ambiguous or vague there is ample opportunity for grey areas. Courts are there to judge whether an argument justifying a grey area is valid or not.
Government can test how far they can expand those grey areas. This happens all the time.
No, in fact exactly the opposite.
It is not the grey areas of life that drive the interpretation of the law.
It is the greay areas of the law that the courts strive to eliminate.
To the greatest extent possible the law is NOT to be interpreted – but read – as written, and when that is not possible or dificcult, the law is to read following what is supposed to be a nearly rote process.
Calling the judicial process interpretation is a distortive missuse of words.
I would further note that thousands of years of loaw and logic inform us that it MUST to the greatest extent possible work that way.
In out lives – we do NOT have a roving team of legal experts to inform us whether each action we take is legal or not.
Therefore the law MUST have several attributes to have the slightest chance of working.
It must to the greatest extent possible conform to our innate concepts of right and wrong – not YOURS, not MINE, but only those that nearly all of us have in common. It also must be logically correct. We must be able to know what is legal and what is not – even without having ever read the law.
That should be obvious even to a dull left wing nut.
You can not have a complex society – and especially a diverse complex and large society unless the LAW is intuitively obvious to nearly all.
If that is not so – society falls apart. You can not possibly have enough law enforcement to forcibly compel everyone to obey the law – especially law they have not read and can not know intuitively. Our law is sometimes complex – NOT because what is right and what is wrong is unclear – but because putting into words the precise moral code or right and wrong that is in our souls is often non-trivial.
Most of us know intuitively when it is wrong to kill another, and when it is not. But try to express that as a legal code ?
The complexity of law, the grey areas result from Our inability to express perfectly in words what know understand intuitively – what is right and what is wrong.
Regardless, ambiguity, grey areas in law is always ERROR. As we are humans and less than perfect there will always be error.
But the objective of the law, and the courts is to drive our ambiguity and error,
AND to map the text of the law as perfectly as possible to the common human understanding of right and wrong.
We are not supposed to be looking into the grey areas to reach our personal political ideology.
Do you not understand that the system that you describe – can not and will not work ?
And that even if it could – no one rational would want to live in that world ?
How is it that you think people are governed ?
Do you think it is by FORCE ? That system has a name – totalitarianism, and its hallmark is tyranny.
You seem to be under the delusion that man serves government
Government is a creation of and exists in service to man.
If the law and constitution can be read clearly – and the . elections clauses of the constitution are very clear, then they MUST be.
And that is the end of it.
If you or I do not like the constitution as it is – we are free to change it.
ISL is not a theory. It is the plain text of the constitution. If you do not like it, or if it does not work – then actually change it.
That is how the rule of law works.
Anything less is just chaos and anarchy, with the only question being the extent of the chaos and anarchy.
I do not personally beleive that the constitution should have left control of elections to the federal government AND the state legislatures.
I think that republicans hoping for an ISL victory with the courts were putting a bandaid on a deeper problem.
And that problem is the increasing failure of the courts to confine themselves to the constitution and the law.
So long as we read law and constitution as written. We can fix the problems when the law turns out to be wrong. We can draft new law, we can through iterative refinement bring the law closer and closer to our innate understanding of right and wrong.
But when the courts become creative – when they are unmoored to the text of the law and constitution – the meaning of the law becomes whimsy, and correcting error becomes impossible.
A perfect example is the Pennsylvania election law contest in 2020. PA’s 2019 election law was unconstitutional – if violated PA’s constitutional requirement for secret ballot elections. That requirement has a history dating back to the massive election fraud of the 19th century. There are specific legal requirements for a secret ballot election. These have been well understood for over a century – and 38 US states have secret ballot provisions in their constitution.
A secret ballot:
Must use a ballot printed by the state that never leaves the supervision of the state.
Voting must be done alone in a voting both supervised by the state.
There can be no means for ANYONE to know how you voted – except YOU.
And you must have no means of proving how you voted.
You can not be able to take a selfie of your ballot, you can not be able to show your ballot to a friend.
Why ? Because if it is possible for you to prove how you voted, your vote can be coerced or induced.
In the 19th century the going rate for a ballot was about $3. That is equivalent to about $300 today – and that appears to be the price we see paid where votes are bought.
The PA Supreme court should have found the 2019 PA voting law unconstitutional. But they did not.
Instead they rewrote is – NOT to correct the unconstitutionality – but to make it far worse.
Act 77 the PA voting law had a non-severability clause. That is a clause in a law that specifies that the courts are NOT free to fix what they see as problems in the law. If the court finds part of the law flawed or unconstitutional – which is within the power of the courts to do, then the non-severability clause requires the entire law to be rejected as a whole. This is important for many reasons.
One – because laws are often carefully constutcted wholes that are not intended to work if only imposed in part.
Two – because laws are created by political processes that often involve compromise.
PA Act 77 was a compromise between Republicans and democrats.
Pennsylvania has had Voted ID laws for almost 2 decades. Routinely before each election democrats in PA challenge the PA voter ID law, and the law is stayed pending the conclusion of the court challenge. Ultimately the court challenge fails – but the election ends up conducted without Voter ID.
And the next election cycle we repeat the same process again.
Act 77 was a compromise that would purportedly end that impasse. Democrats agreed to quit challenging voter ID and Republicans agreed to very limited and carefully controlled mailin voting.
Frankly the courts should have rejected the law as it violated the PA constitution.
But they did not, instead they gutted all the carefully negotiated compromises in the law turning a carefully crafted political compromise into something new that had no resemblance to what was actually written.
And the non-severability provision int he law was put in their to prevent exactly this kind of nonsense.
The PA supreme court thoroughly gutted the law – “interpreting” very clear specific provisions covering exactly how ballots had to be handled into pretty much anything goes.
One of the centuries old rules of statutory construction is that when the text of the law is specific, it must be “interpreted” as specific.
That when the definite article is used in a law it refers to exactly that thing – and can not be broadened.
The “the county election office” – means one and only one office, and it certainly does not mean dozens of unattended ballot drop boxes that are not permitted anywhere in the law.
The result of the mess in PA in 2020 and the courts pissing all over the law – is that the PA republican legislature will no longer compromise with democrats.
All governance in PA has become orders of magnitude harder – because with good reason the PA legislature does not trust democrats, and the do not trust the courts.
And we see this throughout the country.
This is the results of YOUR extrapolating grey areas for your own poltical ends – the destruction of trust. The growing dysfunctionality of govenrment, and the inability of government to perform even basic tasks. Because those crafting the laws can not trust that the laws they craft will be enforced as written.
There is no remedy for lawless courts. We can not write clearer or better language in laws – when the courts will not follow the laws as written.
Either party – democrats, republicans … if the courts do their job – trust that the laws they pass will be followed, AND that if they gain the power to pass new laws, the courts that strictly imposed the laws they did not like, will do the same for those they do.
But when each branch of government becomes more politicicized, and less able to do follow the law and constitution as written.
Then government slowly quits functioning.
I would note that the declaration of independence makes clear – BOTH by its text, and by the purpose for which it was created, that when people lose trust in the government it is their right to alter or abolish it – BY ANY MEANS NESCESCARY. Those on the left do not seem to grasp that government that is not trusted is not legitimate.
Do you think before you write ?
Two different judges have the same issues before them.
One delves into the grey and concludes one way. the Other goes the opposite – who is right ?
Do we just continue this up to the Supreme court where what is the law is decided by how 5 of 9 justices construe the grey areas ?
How is it that you expect our society to work when Whether a judge has indigestion determines how they read tea leaves and therefore what is legal and what is not ?
The reason that our founders, nearly all legal scholars and philosophers until the left took over academia spoke of the rule of law not man.
Is because unless we strive vigorously to take the grey areas out of law and of reading the law – we have anarchy, chaos.
Do you think it is accidental that everything have been increasingly chaotic as the left has gained power ?
That is inherent in the destruction of the rule of law.
Do you think it is accidental that the entire world is becoming less stable, that the economy is faltering ?
While a great deal of this is because those on the left have been deluded by self evidently stupid ideas of economics,
At least part of the problem is that chaos, legal and political instability. The absence of the rule of law – whetehr that is in schiff and needles littering the streets, or just overall uncertainty about the law.
Do you think it is an accident that businesses are leaving SF and Portland and other places in the country where the rule of law is weak ?
Do you think the entire concept of the rule of law came about by accident ?
That it is just random mutterings of dead white men ?
Have you ever given the slightest thought to the possibility that Much – not all. but much of how things are – and where they have gotten to is because it WORKS far better than whatever preceded it ?
That we did not arrive at where we are by accident, but through millennia of thought, and trial and error.
That some left wing nut ignorant of history has a snowballs chance in h311 – no matter how ediucated they are of concocting a better system than what we currently have ?
To be clear I am not opposed to progress – that is how we got to here. But history teaches us that progress is incredibly hard – that even “good ideas” often fail, or take many attempts to get them right. And that allegedly bad ideas that have been in place for centuries in all likelyhood work better than the good ideas that you want to replace them with.
Finally the end of so-called affirmative action.
That was me.
“That was I,” David B. Benson.
Finally the correct and proper implementation of the “manifest tenor” of the U.S. Constitution and Bill of Rights.
Yesterday, I complimented “Sam” on his comment about (I’m paraphrasing) looking at achievement, not skin color (which leads to tribalism). Sam, the Court agrees with you!
(Ooops, this was directed toward the UNC/Harvard decision.) (I got offcourse with Dennis’ OT comment)
Sorry, all.
Lin,
Biden said, The court has effectively ended affirmative action in college admissions,” “and I strongly, strongly disagree with the court’s decision.”
So, he wants to continue discrimination against Asian Americans in the name of diversity.
you may enjoy reading Amy Chua’s book, The Triple Package: How Three Unlikely Traits Explain the Rise and Fall of Cultural Groups in America. I read it when it was first published in 3 days. I found myself nodding to her arguments. Then when she got to Cubans, I knew she was a very intelligent woman
You can listen to it as an audiobook while doing your Upstate Farmer chores
😉
https://www.amazon.com/Triple-Package-Unlikely-Explain-Cultural/dp/1594205469/
Mormons have recently risen to astonishing business success. Cubans in Miami climbed from poverty to prosperity in a generation. Nigerians earn doctorates at stunningly high rates. Indian and Chinese Americans have much higher incomes than other Americans; Jews may have the highest of all.
Why do some groups rise? Drawing on groundbreaking original research and startling statistics, The Triple Package uncovers the secret to their success.
Thank you Estovir!
Although moving hay bales precludes one from audio. 🙁
Moving hay bales (in my misspent youth) precluded a lot of things!!!!
Jonathan: I beat you to the punch. Yesterday I commented on Moore v Harper. But I don’t think it was “hysteria” by “liberal law professors” that warned about the dire consequences had the Court gone the other way. What you don’t mention is that John Eastman, a lawyer for Donald Trump, pushed the ISL theory to justify overturning the 2020. He convinced Trump that if he could get Mike Pence to stop the electoral college vote that would give time for the GOP in battleground states to appoint fake Trump electors. Pence refused Trump’s entreaties which saved the country form a real “coup”. So I don’t think law professors were overstating the threat to our Democracy posed by the ISL theory.
In Moore v. Harper SC GOP legislators were pushing the same theory to justify illegal gerrymandering under the states’ constitution. Had they been successful before the SC that would have permitted state legislatures to ignore the popular vote and appoint fake electors for Trump in the 2024 election. The same game plan Eastman/Trump tried unsuccessfully to pull off in 2020. So I don’t think it is an overstatement that the stakes were high in the Moore case.
But this morning there is further evidence the right-wing cabal on the Court is continuing its “coup”. In Students for Fair Admissions v. U of NC, and Students for Fair Admissions v. Harvard College, a 6-3 majority just overturned the racial admission policies at UNC and Harvard. Again, Justice Roberts wrote the decision supported by all the conservative justices. Again the Court, as in the Dobbs decision, was willing to ignore over 20 years of Court approved affirmative action university admission policies. So, thus far, Moore is an exception to the Court’s conservative majority continued move to the right.
But you falsely claim it is actually the liberal justices on the Court who are “ideological robots or dark-money cutouts”. Really? What you ignore in discussing the Court is that it is Clarence Thomas and Sam Alito who are the “dark-money cutouts”. Recent revelations show these Justices have received the largesse of billionaires like Harlan Crow and Paul Singer. Thomas and Alito have received large gifts from these “dark-money” interests they did not report on their financial disclosure statements…the very definition of “dark-money”!
But you are right on one thing: “the next Supreme Court coup conspiracy theory is likely already in the making”. But it’s not a “conspiracy”. It happened this morning when the conservative majority decided years of Court precedent don’t count any more.
Dennis: Did you tell us that you were an attorney? I believe that non-attorney Estovir (@12:01) has a better grasp on the SCOTUS decision than you do (your summary sounds more like a MSM headline). Indeed, the SCOTUS decision reminds and informs us of when and under what circumstances racial preferences are constitutional.
Your comment illustrates the watering down of the word “coup,” which now evidently means “any action liberals dislike.”
If overturning “years of Court precedent” really is a coup, then you must be pretty upset that SCOTUS staged a coup with Brown v. Board of Education (overturning Plessy v. Ferguson), or Trump v. Hawaii (overturning Korematsu v. United States), or West Virginia Board of Education v. Barnette (overturning Minersville School District v. Gobitis), right?
No? I thought not. Because liberals disliked those overturned decisions . . . so their overturning was not a coup.
The court will continue to issue some divided opinions along ideological lines.
Two of the members are brain dead, so they don’t count. Elena Kagan has the intellectual heft to employ legal analysis, so her dissents are worth reading at least.
But lo! Another major decision from SCOTUS on the second most sacred dogma (after killing life in utero) of the Left:
Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. …. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
lack sufficiently focused and measurable objectives
It is official: SCOTUS has jumped the shark.
Universities in America will now have to start utilizing sufficiently focused and measurable objectives in making policy decisions regarding admissions, scholarship awards, designing curriculum and granting academic degrees. Watch their enrollments drop precipitously. Shudder the thought. Watching the heads explode faculty and administrators will be epic. And just in time for July 4 fireworks!
#DefundUniversities
Estovir: I agree with you on Kagan.
Sotomayor, and now Jackson, seem more inclined to use their opinions to push their own “social justice” agendas.
The ever pearl-clutching Turley is becoming so predictible that his posts should be viewed as a source for daily laughs. First of all, what Turley calls “hysteria” over what could have happened if the Moore case had gone the other way was totally justified. It’s not “hysteria” to fear what the current SCOTUS, overloaded with radical right wingers, and which is the first Court to ignore stare decisis and take away a constitutional right found by a prior SCOTUS, and affirmed multiple times over the course of 50 years, might do to help Republicans win elections. Three of the judges on the Court lied about their position on abortion just to get onto the Court. It’s not “hysteria” to understand the implications for democracy if a state legislature overloaded with Republicans as the result of heavy gerrymandering, could simply overturn the will of the voters based on nothing but the whining of a narcissist who can’t accept that he lost the election. There never was and still isn’t, any proof of widespread voter fraud, but he and many of his supporters continue to contend that he was “robbed” of a “landslide victory”. This is exactly the plot cooked up by John Eastman. And, three members of the Court would have allowed it to happen. That is truly scary. Unsurprisingly, two of them are the heavily-conflicted Alito and Clarence Thomas. Turley’s complaints about “attacks on the integrity of conservative justices” is misplaced. Both Alito and Thomas have failed to report lavish gifts from individuals and/or corporations who have had business before the SCOTUS–and neither of them recused in these cases. Thomas’s wife was directly involved in the plot to try to overturn the 2020 election. The third–Gorsuch–doesn’t belong on the Court–in addition to lying about his position on abortion, Gorsuch took the place of a nominee that belonged to Obama, but was blocked by McConnell.
As to Laurence Tribe and “court packing”, Turley knows that there is NO set number of SCOTUS justices in the Constitution, and that the number has varied over the years. Why shouldn’t the SCOTUS reflect the values and will of all Americans? And, the “Steele Dossier” has nothing to do with this matter–more red meat for the disciples–just like the parting shot, spoken by a paid pundit: “Fear not, however — the next Supreme Court coup conspiracy theory is likely already in the making.” This comment is nothing more than another Turley assignment, in addition to trying to defend the SCOTUS–to attack mainstream media. Turley loves to dish in innuendo about “dark money” or secret people supporting Democrats, but he has yet to comment on Leonard Leo of the Federalist Society and how this group has manipulated the composition of not just the SCOTUS, but federal courts.
🤡
You need an intervention…..you are way off the reservation here. Meds may help?…..kinda doubt that from what I read you had put out.
We already have one-party rule in America. It’s called the Democratic Party. Act Blue, the fundraising arm of the DNCC, gets 40% of its funding from China. The Dem Party is the party of the CCP and the running dog of the captured U.S. national security state and their compliant media.
Professor Turley, perhaps you spoke too soon. Another 6-3 major decision along party lines in the college admissions case.
Your busy checking the politics, but studiously ignoring the constitutional basis for the opinion.
If I do that, I see a leftist block of radicals that ignore the constitution in order to advance their political philosophy.
The Court’s majority essentially overturned the existing precedent in Grutter and Bakke, not to mention Payne and Fisher II, all without even considering stare decisis. Pretty radical, I would say, not even considering stare decisis when overruling a progeny of case law.
Still cant point out what part of the Constitution the majority got wrong.
The Court’s ridiculous application of the Equal Protection Clause’s two-step test for strict scrutiny is the constitutional error here.
What, in your view, is ridiculous about the way the Court applied equal protection principles?
Particularly in education, there is a compelling government interest to address historical wrongs against certain groups. There is also an interest in creating a diverse student population. So, strict scrutiny is met here.
The schools also narrowly tailored their race-based discrimination. The Court conflated narrow tailoring with perfect tailoring, which tons of case law clearly rejects. The existence of an alternative does not mean the narrow tailoring prong was not met.
That being said, if they had simply applied the existing test, and narrowly tailored (pun intended) their ruling by saying that Harvard / UNC must do better, I would have less of an issue here. The complete unwinding of affirmative action was neither necessary nor justified.
As a graduate of both schools, I am concerned about their future.
there is a compelling government interest to address historical wrongs against certain groups
That isn’t the justification put forth by the universities for favoring one race over another. The Court cannot just make up new arguments to support a challenged policy that the defendant isn’t forwarding.
More generally, the Equal Protection Clause at its core is about race, more specifically, about not discriminating based on race. I’d say this decision enforces the language and historical understanding of that Clause.
The majority got the 14th Amendment wrong. They’re clearly not using an originalist interpretation of it.
Does your reasoning on stare decisis lead you to conclude that Plessey should not have been overturned?
The Court has to respect precedent. That doesn’t mean it cannot overturn a case. The doctrine of stare decisis should, at a minimum, be discussed when overturning a case.
Brown was a unanimous decision. Particularly when the Court overturns a political case, the Court should be weary of splits along political lines (as this was).
“But Plessy” is not a reason to justify the complete unraveling of the last 40 years of constitutional jurisprudence by the Court.
Brown was a unanimous decision. Particularly when the Court overturns a political case, the Court should be weary of splits along political lines.
How would that work? The Court can only overturn precedent by a unanimous opinion? The Court should have a “political case” meter on precedent, and a “split along political lines” meter on the current case, and not overturn it even if a majority of Justices vote to do so, if those meters read certain numbers? That isn’t how any court in the world works.
Were you reading Wikipedia, Cliff’s Notes, or Google search headlines in drawing that conclusion?
Gruttner and its progeny basically followed Bakke and Justice Powell’s conclusion that there may be a compelling interest in a diverse student body. Today’s decision does not dispel of that.
Gruttner imposed a finite (not infinite) timeline needed to achieve the goals intended. Today’s decision does not dispel of that.
Fisher itself required programs that were “sufficiently measurable to permit judicial review,” Today’s decision does not dispel of that.
and Payne had nothing to do with anything other than overturning precedent based on prior dissenting opinions….
And your response?
Why do you want discrimination against Asian Americans?
Here’s a clue.
Clarence Thomas is what all judges and justices are required to be.
Only the Constitution matters.
That is the only valid consideration.
One thing that gets lost in this type of discussion: the ISL theory is actually the most consistent with the constitutional text, which says the state legislatures – the people’s elected representatives – draw the maps. It doesn’t say anything about judicial review or gubernatorial veto. The participation of those other two branches, while it may be desirable, requires layers of interpretation over the text.
The liberal justices are rarely portrayed in the mainstream media as ideological robots or dark-money cutouts.
They are viewed as quota fillers, and a few as idiots just like their apologists.
re: the womyn who cant define a woman
“I’m Not a Biologist”
– Supreme Court Nominee Ketanji Brown Jackson
re: Sonia Sotomayor
“I’m old enough to remember when a second-class intellect like Sotomayor got onto the Court because her Latinaness gave her insight into her soul.”
– University of Chicago Law Professor M. Todd Henderson
“I’ve read roughly about 30 of these opinions. She has a much larger library of opinions. But they are notable in one thing. And that is a lack of depth. There is nothing particularly profound in her past decisions. She’s been a judge a long time. That’s opposed to people like Judge [Diane] Wood on the Seventh Circuit — and she was viewed as a real intellectual powerhouse. You really can’t read the opinions of this nominee and say: “Oh yeah, this person is a natural choice for the Supreme Court……But in terms of long term satisfaction, she does not naturally suggest that she’s going to be the equal of [Antonin] Scalia. And I think that was the model for liberals. They wanted someone who would shape the intellectual foundations of the court.”
– He who shall remain nameless
Estovir,
I assume Justice Jackson also does not know what a tree is because she is not a botanist; or what a car is because she is not a mechanic; or what a house is because she is not a contractor. I can go on and on to demonstrate how ridiculous her answer was but we all know that. Her answer actually demonstrated cowardice, nothing more and nothing less.
Having that said, Justice Jackson is not a weak jurist like Sotomayor but quite competent as a matter of fact.
Double Dutch: Justice Jackson is SMART, something that white-trash hag from Tennessee isn’t. Her answer demonstrated that she understood the agenda of the moron who tried to bait her and didn’t take the bait.
When a gay man like you shows misogyny, not even bottom surgery can help you
Whatever will NUTCHACHACHA do now?
Affirmative action is dead.
When do actual Americans receive their “reparations” for the entire spectrum of deleterious effects caused by unconstitutional affirmative action laws and programs?
Not exactly. Harvard already said they will use the part of the decisions that says ” University admissions CAN USE whining, crying, babbling, I was suffering under the effect of racism toward me, the minority ” in the essays submitted for admissions.
So already there are pamphlets out on how to cry and whine in your request for admission, and outline how badly you’ve suffered from racsim, that way the University can admit you under the new spin on Affirmative Action.
Democrats and their journalist puppies never seem to get a grip on reality. Like the weatherman, they are wrong more than 50% of the time. Part of the problem is that they concoct “reality” in their heads instead of getting out and observing real life. On everything from Biden’s mental problems to the war Ukraine is losing badly, Democrats have misjudged and misunderstood, leading to disastrous decisions. They are the poster children for how ideology trumps reality.
Here’s a question: can a state Supreme Court actually draw the congressional map as opposed to simply exercising judicial review over one drawn by the political branches? That has happened, I believe, in Colorado and Pennsylvania.
It depends on the individual state. Each state has its own rules on what it’s Supreme Court can do.
That may be true but my question is whether the federal Constitution allows that, since it says the maps are to be drawn by state legislatures.
It does. State legislatures can also delegate powers. Or state constitutions specifically require state Supreme Courts to draw districts in the event of a dispute.
When a legislature creates district maps in contradiction to their state constitution a court can intervene by requiring they redo the map and if that fails if the state constitution states the court shall draw the map then they can.
But no state legislature has ever delegated the power of drawing congressional maps every 10 years to the state supreme court (if you disagree, give me an example). And since the US Constitution trumps any contrary provision of a state constitution, how could a state constitutional provision which indicated that the state supreme should draw the congressional map every 10 years be constitutional? Wouldn’t it clearly violate U.S. Const. art. IV, §1?
Notably, the instances in which state supreme courts have drawn congressional maps have not been pursuant to a state constitutional provision or legislative delegation of power. They have arisen where the state supreme court arrogated that power to itself when it deemed the legislatively-drawn map to be invalid.
The only time state supreme courts would draw a map is when there is a conflict with their state constitution. First they require the legislature to redraw it to meet constitutional requirements of the state. When that fails. State laws may mandate the court appoint a commission to redraw a map. They only determine whether it meets state constitutional requirements.
Sometimes they just draw it without the benefit of any state law giving them that authority.
But regardless, even if there were such a state law, my question remains: would that law survive a challenge under Article IV, Section 1 of the U.S. Constitution? I find that doubtful. The idea that the executive and judicial branches may be involved in restraining the state legislature is one thing. The idea of a state supreme court actually drawing a map (which is not then endorsed by the state legislature) is something else entirely.
How do you justify your assertion that there “sometimes just draw it without the benefit of any state law”?
Is there evidence?
Yes, it has been done – by Pennsylvania (2018) and Colorado (2012). Perhaps other state supreme courts. But you avoided the main question: how would such a law survive scrutiny under Article IV, §1 of the US Constitution?
Pennsylvania did it according to their state law.
The answer to your question was just given by the Supreme Court.
It was just scrutinized.
“ State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,”
State constitutional restraints means a state’s constitutional requirements or election laws.
No, that’s not true. The case was League of Women Voters v. Commonwealth, decided in 2018. The Pennsylvania Supreme Court invalidated the map drawn by the state legislature based on the state constitution, that much is true. But there was no law or provision of the state constitution that gave the court the authority to then draw a substitute map. They just drew it – with the help of a political science expert behind closed doors, thus not subject to voir dire as to his expertise or to cross-examination as to his advice – and ruled that that map was the now the law of the land.
As for yesterday’s SCOTUS decision, it does not hold that a state supreme court can draw a map, or that a state law giving a state supreme court that power would be constitutional. As reflected in the quote you yourself highlighted, it only endorses the state courts’ ability to enforce legal limitations on the work of the state legislature.
It seems to me from your responses that you don’t really understand the question I’m asking.
In North Carolina the Supreme Court appointed a commission to draw a new map. That authority is not granted anywhere to courts, neither in the US constitution or in NC constitution or laws.
“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,”
That authority is granted.
Applying restraints is one thing. Actually drawing a new map is entirely different.
They can appoint a commission. That means they don’t draw the map. They just determine if it meets their state constitution. The commission can be a balanced mix of party representatives who can draw district maps.
Wait, a state supreme court can appoint a commission? Where do you get that?
State laws allow that when there’s a conflict. As long as it’s lawful they can do it.
I’ve never heard of such a state law. Perhaps you could identify one?
Some states have appointed redistricting commissions. State supreme courts can use hand off redistricting to such commissions when legislatures fail to create a map that meets state constitutional requirements. Pennsylvania has laws that determine those commissions and in heavily disputed issues the Supreme Court can appoint a commission.
https://redistricting.lls.edu/state/pennsylvania/?cycle=2020&level=Congress&startdate=2022-02-23
… in heavily disputed issues the Supreme Court can appoint a commission.
I don’t see that from the link you provided. What I see is that Pennsylvania uses a legislative commission for state legislative districts, and the state legislature draws the congressional districts.
I also see that the state supreme court can invalidate either type of resulting map (state legislative, or congressional).
The linked page also notes that the supreme court did, in fact, re-draw the map itself in 2018 (as I noted above), but that action by the state court has never been tested for compliance with U.S. Const. art. IV, §1 – which is my whole point.
I suspect the answer to your question is multiple choice:
1) Can they? – YES
2) Should they? DEBATABLE
3) Would it pass constitutional muster if challenged? Probably not
The courts sometimes do all sorts of crazy things now. They “order” all sorts of stuff like they are the big daddy and can do whatever they want to someone unfortunately under scrutiny in front of them.
They just keep doing more and more and we do not have enough civil rights defense lawyers combating these crazy things, and don’t expect the bar to step up except in very rare cases where they have a political reason to do so, and of course they are left demoncrat controlled now so expect the worst, like the Trump lawyer getting railroaded right now.
The Supreme Court should reject as unconstitutional the drawing of Congressional district lines so that certain races of people will be more likely to be elected.
Hahahahaha great idea, when ice cubes are available in hell, that’s when they will do that.
They’re right on top of it no doubt.
An article on a point of law in a legal blog? What a refreshing development. And today is another SCOTUS opinion day. Some doozies will drop today or tomorrow (I doubt they’ll extend the term into July) . . . which hopefully will make for more articles on law rather than primarily on politics.
P.S. Darren – that’s a good one! vvv
According to polls, today about 20-30% of the Republican voters support the January 6 insurrection/coup attempt – a form of treason. Section 3 of the 14th Amendment – if enforced – should prevent Trump (and his allies in Congress and state governments) from ever holding authority in the future.
That treason happened in 2021, so maybe those fears were legitimate and justified?
Blah blah blah
A strange interpretation of treason. First-no one has been convicted of treason from Jan 6 and 2-maybe you should read the Constitution’s definition of treason. It’s the only charge specifically laid out in the constitution and primarily because of the excessive use of “treason” by the British crown. Also one must have 2 actual witnesses to the treasonous act. Many constitutional concepts are written there because of the reaction to the excesses of the Crown and Parliament in charging and removing jurisdiction from the courts of the colonies and adjudicating them in London. Does not take an Attorney to know that. Maybe you were thinking of the Napoleonic Code, that other European System or the Soviet system of no conviction at all except for a bullet and the bill for the use of said bullet or all the psychiatric cases they sent to prison, excuse me, the “psychiatric hospital”.
Speaking of treason; is it within the definition if someone in a position of power in our government receives money from a foreign agent with the intent to influence US policy?
Coup d’éNOT!
Yea, we cant have things decided by the words used and the intent of the authors.
Turley missed the point. The ISL theory got a lot of traction in a lot of Republican dominated states. It was a genuine concern since the theory relies heavily in originalism and strict textual interpretation of the constitution. Alito’s opinion was merely a technical agreement but he has supported the theory as Thomas does.
There was valid concern when the court took the case.
There is more to life than fear. Get out, enjoy the summer – the world and your neighbors are not scary.
The concern has been the out of control democrat courts and state officials along with NGO’s and Sorros glowers that corrupted the 2020 elections without legislature input and got away with stealing it. Same thing in 2022.
The “courts” are now in a panic because their crimes would be exposed even more if this decision went Constitutional. So that’s why the SC took this, to protect all the criminals in their peer employ group and take a squat on Trump at the same time.
POWER POWER POWER POWER POWER
Protection racket.