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Thanks. Been a while since I had one of these exchanges with so many paragraphs... Legolas Send a noteboard - 25/09/2020 11:10:16 PM

I was going to try and reduce the paragraphs by bundling various things together, but I didn't exactly manage to shorten the post. But took out a few points below which are covered here.

Firstly, I'm absolutely not in favour of Roe being overturned, because as you rightly say, the price is too high. If I were a SC justice and had to rule on the topic, I would just bluntly say 'sure, its justification makes no legal sense, but nevertheless it's too important to overturn it'. Which is precisely why I could never be a justice in the first place. Anyway, it's an extremely impractical way of ensuring that right and one which comes at a steep price in terms of how it's contributed to the polarization of American politics.

Because it seems to me as an outsider that American politics are in a kind of death spiral of polarization, which I've no idea how they're supposed to get out of. Frankly, a non-violent breaking up of the country seems like one of the better possible long-term outcomes. A conservative majority on the SC might exacerbate that situation, but, I think, less so than a doomed attempt from Democrats to avoid it by packing the court, which would only invite further retaliation. If Democrats are going to spend a huge amount of political capital on making any kind of changes to the system, how about focusing on changes that could actually help in the long term. Something like the 18-year terms for SC justices that you mentioned, for instance - but then implement that now, not after you've made things worse.

And as for your general theme of a conservative minority forcing its will on a progressive majority, there is something to that of course, as we've discussed, but in the end it can only be resolved by progressives actually winning enough votes and using them in a sustainable way. If legislation must be passed or changes must be made that require constitutional amendments, then pass those amendments. And if, as it very much seems, constitutional amendments aren't possible to pass anymore because the states don't agree on anything anymore - then draw your conclusions accordingly.

View original postAs it does about equal protection. The right to bear arms without restriction is as much an invention of the Supreme Court as the right to an abortion. Neither has any direct basis in the Constitution.

I don't say I agree with the conservative views on the Second Amendment, but unlike abortion, it actually is mentioned in the Constitution.


View original postCome on, stop drinking the cool aid. There are strict textualists/Originalists among Conservatives, sure. Gorsuch seems to be shaping up as such. But this isn't a broad feature of every conservative justice. Not in the Supreme Court, nor in the lower Courts.

It is and remains pretty much their ideal. Scalia was so popular because he was a strong defender of that philosophy. Thomas, same thing except without Scalia's eloquence and sense of humour. Barrett is being pushed forward for the same reason. It's not 'drinking the koolaid' to believe, as I do, that those people wouldn't just flush their life-long principles and legal theories down the toilet by striking down blue-state abortion laws on flimsy pretexts. Once again, they are not Trump or McConnell - they are not politicians at all. Although I will grant you that Kavanaugh very much sounded like one during his confirmation hearing and I don't particularly trust him to have changed much - still, now he's a justice and must act accordingly.
View original postCite for me such relevant passages that say money is speech, or that corporations have personhood, and thus, some rights granted to individual people.

In both cases, I disagree with the decision and certainly with its outcome, but from what I've read of the reasoning, it's not completely absurd and seems like a legitimate legal position (obviously I'm not a lawyer).
View original postAnd the liberal Justices are dilettantes who are duplicitous? I think you are mistaking a different legal philosophy for bias.

When did I ever say anything of the sort? You're the one who's accusing the conservative half of the court of not giving a hoot about the law and only trying to push through their personal views on abortion or whatever other topic, by any means necessary. And I'm explaining why I don't believe that's the case.
View original postThat is the legal framing of their core issue with the ruling, which is that it allows the right to abortion. If Roe had been decided on the basis of the Equal Protection clause, that is what they'd have objected to.

Because that would have been equally creative and far-fetched.
View original postNo. The legal justifications come in response to moral objections. And this isn't just for the Conservatives, of course, but I'm just scratching my head at your attempts to say the whole rancor over Roe v. Wade is about the way it was decided, rather than what it decided.

The rancor and the Republicans' obsession is about the content, sure enough. The legal argument against it, however, isn't. And if a future conservative majority on the SC overturns it, that will be based on the legal argument.

Skipping a bunch of paragraphs here because they're basically covered above already.



View original postWas Obamacare, or the Voting Rights Act, or the Bipartisan Campaign Reform Act invalidly passed laws? Please explain how so.

You can read those opinions without me summarizing them for you, can't you?
View original postSince that isn't my idea at all, I'll let you whack that strawman on your own.

Yeah, I'm not the one who started slinging words like 'utopian' around, so pot, kettle, black.
View original postWhat the actual fuck do you mean about conservatives not being able to argue with the SC? Their entire desire to break all rules to fill as many seats as they can with Conservatives they can trust on their key issues is predicated on their profound dissatisfaction with the Court.

Until now, they may have strongly disagreed with various decisions of the SC and tried for decades to push it in a more conservative direction, but they haven't had any real reason to question its legitimacy. Democrats have, since the Garland thing in 2016, but then again Democrats also know that even if there had been a vote on Garland, the Republican majority in the Senate could just have voted not to confirm, with the same end result.

In the end, both in the Garland situation and now in the situation with RBG's seat, what McConnell is doing is logical enough, given the level of polarization in politics. And although it suits Democrats politically to gin up outrage about it, McConnell is right in saying that they would've done the same in his position - at least, if they had enough votes to do it, which is more difficult for Democrats since it's more of a big tent party than the GOP.

If Democrats gain the Senate now, eliminate the filibuster and then try to pack the court, I suppose you can argue it's still just a logical next step in the escalating political arms race. But still it would be a big escalation, much worse than simply repeating what McConnell did (of course, since SC nominations currently depend so much on pure chance, they're unlikely to get the chance to do precisely what he did).


View original postNot even then. Some Red states like Alabama have clear majorities opposing abortion, but you won't find it in Texas or Arizona or Georgia.

I'll take your word for that, but still most red states have passed very restrictive laws, in case Roe gets overturned. I haven't done the research in detail but I don't believe that's all due to gerrymandering, though some of it may be.
View original postAnd if, "some states have a majority view opposed to the national majority" is a reason to call something having "majority democratic" support, then pretty much any position you can think of has "majority democratic" support.

I was talking specifically about 'majority democratic support' in particular states, since it's at the state level that abortion laws are normally written. The national view isn't that relevant because, barring a constitutional amendment, it's unlikely the conservatives on the SC would let a national abortion law stand, as they'd figure it's not under Congress' authority to decide on that.
View original postDo you mean a person who carried a fetus to 30 weeks and now decided they don't want to deliver it? Or do you mean due to health complications, they seem an abortion?

Either - like I said, it's not black and white and different countries will draw the line in different places. For instance, over here in Belgium, which seems like a good compromise to me but then of course it would, the rule is basically that 'elective' abortions are allowed until 12 weeks, after that they're allowed only in case of health complications (physical or mental). Though they are debating to extend the 12 weeks to 18 now, the way it is in the Netherlands, which is somewhat controversial but seems likely to pass.
View original postIt is not. If the fundamental principle of abortion is agreed on, then legitimate restrictions on edge cases have their place. That should always have been the focus of the Conservatives, except they always bundle it up with abortion as a whole, and add in anti-contraception mandates and laws making their entire case completely nonsensical.

I think we agree that a not insignificant part of the fury and horror about abortion on the conservative side is based on those 'edge cases', both real ones and ludicrous scaremongering about babies being aborted at nine months. Because the way the system has worked in the USA is the SC suddenly allowed abortion out of the blue as a supposed constitutional right, then those 'legitimate restrictions on edge cases' had to be worked out. It might have been somewhat less rancorous if, like in Belgium and many other countries, abortion had been legalized with the debate about where to draw the 'legitimate restrictions' line from the start.
View original postBut not the ones discussing expanding the Court. Roe is a prominent issue, among those people, but hardly the only one.

Fair enough.
View original postSo, to understand you right, you're saying that Donald Trump's base is almost entirely composed of people who are voting for him primarily because he'll appoint pro-life judges? Literally every candidate in the 2016 GOP primary made that same promise. I think it's ludicrous to claim that nothing else animated that base to the same extent.

I never said 'almost entirely' and I wasn't referring to the 2016 GOP primary. I'd guess that most of such single-issue voters would've preferred Ted Cruz at the time, or other more devout candidates. I'm talking about the people who will be voting for Trump now in the 2020 election - including some who aren't part of his base at all, perhaps even absolutely despise him, but will still vote for him over any Democrat because of abortion. Read basically any in-depth article interviewing Trump voters and you'll come across some examples of such people. In terms of numbers, if I remember right off the top of my head, we're talking about at least 20-25 percent of Republican voters for whom abortion is the big priority in every vote they cast. Yes, most of those same people would also care about things like supposed threats to their religious freedom, but not to the same extent - possibly because they know that such threats aren't actually all that real.
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