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Open Discussion Discuss How should a justice vote? at the General Forum; Originally Posted by pjohns Here is an example of a SCOTUS ruling that had a very beneficial effect , in ...

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Old 07-11-2018, 04:34 PM
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Default Re: How should a justice vote?

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Originally Posted by pjohns View Post
Here is an example of a SCOTUS ruling that had a very beneficial effect, in my opinion--but was really not grounded in the Constitution:

In Loving v. Virginia--just over 50 years ago--the High Court ruled that interracial couples may marry.

And that was very beneficial, in my opinion. (I can see no moral or practical reason why they should be prohibited from doing so.)

But I can see no Constitutional reasoning to back this up.

The same may be said for Roe v. Wade.

And for Griswold v. Connecticut (which really provided the predicate for Roe).

Again, I would much prefer to look to the Constitution--without any regard for what I might consider the better result...
If you were prevented in your state from marrying your wife, what constitutional grounds would you say back up your right against the state?

Wade was a medical privacy law
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Old 07-12-2018, 12:04 PM
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Default Re: How should a justice vote?

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If you were prevented in your state from marrying your wife, what constitutional grounds would you say back up your right against the state?
None.

I would say that the state has the right to make laws as it pleases.

If it makes laws that the majority of the citizens of the state find abhorrent (or even just rather bad), those laws will be changed; or else the state senators and representatives will be out of jobs.

But I do not believe that the courts have any legislative function--i.e. nullifying laws (without a Constitutional basis) that it simply finds odious (even if I fully agree with the courts, in this regard).
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Old 07-12-2018, 12:19 PM
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Default Re: How should a justice vote?

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Originally Posted by cnredd View Post
And your Constitutional basis for this question is???????....

“Treason” Article 3, Section 3:
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Old 07-12-2018, 06:17 PM
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Default Re: How should a justice vote?

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Originally Posted by saltwn View Post
If you were prevented in your state from marrying your wife, what constitutional grounds would you say back up your right against the state?
none.
lobby to change the state law.
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Old 07-13-2018, 10:45 PM
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Default Re: How should a justice vote?

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Originally Posted by Zenock View Post
This is what has bothered me about the gay marriage issue. While I can certainly see how the court could rule that the laws governing marriage in the states were unconstitutional, I'm still having a hard time figuring out how they were able to write the laws for the states. At most, I would think they would be able to do is void the laws governing marriage, in essence ending marriage in the states until new laws can be written.

How were they able to create this legislation?
The Supreme Court did not create any legislation on same sex marriage.

The Obergefell vs. Hodges decision, establishing the right of same sex marriage under the due process and equal protection clause of the 14th Amendment, nullified (made unenforceable) any statement in any law that limited marriage to opposite sex couples leaving the rest pf the law intact. So if the law said that people could get married then they could still get married but it was no longer limited by any statement that limited the marriage to only opposite sex couples.

The Supreme Court has never created any law and it's power is limited to nullification making unconstitutional laws or components of a law unenforceable.

Note: In Obergefell vs. Hodges what Chief Justice Roberts had to say seemed a bit odd to me:

Quote:
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
https://www.nytimes.com/2015/06/27/u...-marriage.html

The decision was not based upon a "marriage" clause in the Constitution. It was based upon the Due Process and Equal Protection clauses contained in the 14th Amendment. Chief Justice Roberts knew that so why did he make such an absurd statement? The Constitution had everything to do with the decision.
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Old 07-13-2018, 11:13 PM
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Default Re: How should a justice vote?

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Originally Posted by pjohns View Post
Whatever liberals cannot accomplish through the Congress, they can probably get through judicial activism.

Thoughts?
First thought:

I find it somewhat odd that the claim is made that liberals seek to employ judicial activism when we're faced with the current situation where Republicans are publicly boasting about packing the federal courts and the Supreme Court with extremist right-wing justices to achieve their political agenda. President Obama nominated generally centralist judge Merrick Garland to fill the vacancy left by Scalia. Both Republicans and Democrats endorsed Garland and he would have received easy bipartisan confirmation but his confirmation was blocked by Mitch McConnell. Then when Trump nominated Gorsuch. so radically right-wing in his opinions that not a single Democrat would support him, McConnell and the Republicans changed the Senate rule so that he could be confirmed with a simple majority party line vote.

Seems that the Republicans are dedicated to judicial activism by the appointment of judges that are so radically right-wing that the only way they can be confirmed is based upon a party-line vote.

Our danger today is the fact that confirmation only requires a party line vote by the majority party in the Senate and the results of that vote can impact the United States for decades to come. No political party should have the sole authority to impose their political agenda through the Supreme Court for decades.
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Old 07-13-2018, 11:18 PM
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Default Re: How should a justice vote?

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Originally Posted by ShivaTD View Post
First thought:

I find it somewhat odd that the claim is made that liberals seek to employ judicial activism when we're faced with the current situation where Republicans are publicly boasting about packing the federal courts and the Supreme Court with extremist right-wing justices to achieve their political agenda.
And you wouldn't find it odd at all if you realized the "political agenda" is to REVERSE the political activism that's been going on the last 50 years and bring the court BACK to actual Constitutionalism and away from "the law says whatever we feel like at the time" bullsh*t...
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Old 07-13-2018, 11:27 PM
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Default Re: How should a justice vote?

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Originally Posted by pjohns View Post
In my opinion, a Supreme Court justice--if he or she is any good--will sometimes vote for an obviously bad result, if that means upholding the Constitution.

Thoughts?
This reminded me of a speech made by Robert Jackson, who later became a Supreme Court Justice, when he was Attorney General to the second conference of federal prosecutors. A federal prosecutor wields the power of the entire federal government and Jackson was advising them about that power. His words have often been referred to as the pragmatic foundation for the Rule of Law under the DOJ. His words are to prosecutors but they still have meaning.

Quote:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.

Although the government technically loses its case, it has really won if justice has been done.
Seeking Justice – Addressing Prosecutorial Misconduct in the United States Legal System Blog Archive THE FEDERAL PROSECUTOR

Yes, in some cases a Supreme Court decision may have a negative result for some but if the decision results in an injustice then it's the wrong decision. Not a single word in the Constitution was ever intended to result in an injustice so if an injustice would result then the decision is a misinterpretation of the Constitution.
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Old 07-13-2018, 11:36 PM
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Default Re: How should a justice vote?

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Yes, in some cases a Supreme Court decision may have a negative result for some but if the decision results in an injustice then it's the wrong decision. Not a single word in the Constitution was ever intended to result in an injustice so if an injustice would result then the decision is a misinterpretation of the Constitution.
This argument is absurd...Whatever decision the court renders will, ultimately, have someone crying "injustice!!!"...

The difference is that Liberals believe what THEY find "unjust" should be rectified immediately; Constitution be damned...while any Conservative argument of "Unjust!" should simply be met with "Go f**k yourself!"...
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Old 07-13-2018, 11:40 PM
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Default Re: How should a justice vote?

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Originally Posted by cnredd View Post
This argument is absurd...Whatever decision the court renders will, ultimately, have someone crying "injustice!!!"...

The difference is that Liberals believe what THEY find "unjust" should be rectified immediately; Constitution be damned...while any Conservative argument of "Unjust!" should simply be met with "Go f**k yourself!"...
The Republican President is a one-man Constitutional crises and you think Libs are the problem?
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