TheBrennanCenter OP t1_iynod5a wrote
Reply to comment by thergoat in We're Tom Wolf,Eliza Sweren-Becker, and Ethan Herenstein. We work on democracy reform at the Brennan Center for Justice. Ask us anything about the Supreme Court’s upcoming case Moore v. Harper and the “independent state legislature” theory. by TheBrennanCenter
Eliza: The very provision of the U.S. Constitution that North Carolina legislators are trying to weaponize in this case–the Elections Clause–also gives Congress the power to act to ensure free, fair, and representative elections. Namely, the Elections Clause gives Congress the power to “make or alter” rules for federal elections. The Framers gave Congress that overriding power precisely because they were worried that state lawmakers would abuse their authority over federal elections and do things like draw unfair maps and make voting more difficult (sound familiar?).
Congress should–regardless of the outcome in Moore v. Harper–pass democracy reform legislation to protect the right to vote, fight back against racist voter suppression tactics, eliminate partisan gerrymandering, and protect against election sabotage and interference efforts. The Freedom to Vote: John R. Lewis Act would have put these policies in place, and Congress should reintroduce and pass this bill, which would mitigate some of the worst harms of the independent state legislature theory (if the Court does adopt it).
Artisanal_Shitposter t1_iyoek38 wrote
But what would stop a partisan SCOTUS from simply quashing those laws? This court doesn't seem to respect precident. So what's to stop them from reaching the conclusion that this is illegal or unconstitutional, then working backwards to find support for that conclusion?
Typically I wouldn't be concerned about the court behaving in such a fashion. But this court has already shown they're capable of behaving that way.
shalafi71 t1_iyorxhe wrote
Precedent is, "how a law has been interpreted in the past".
Making a new law shoots down that ambiguity. Best the court can do is say, "This law violates the Constitution." They cannot just make up new laws.
It's a fine line that I'm failing to impart...
macrofinite t1_iyr4e7p wrote
I mean, did you read any of the Roe opinion?
They super obviously don’t give a shit about precedent anymore and have no compunctions about making shit up out of whole cloth.
ilikedota5 t1_iys52fy wrote
I mean, Roe was pretty detached from the constitution. The penumbra and emanation logic was never been used again.
At least this case is directly about elections, something that is addressed by the text.
macrofinite t1_iyspxno wrote
That’s not relevant to what I said man.
In the opinion in which they overturned Roe, they blatantly disregarded precedent, fabricated a history that doesn’t exist, and just plain made things up.
We’ve got 5 judges that are ok with doing these things. And you think it makes a single bit of difference how much a topic is covered by the text of a law?
ilikedota5 t1_iysqzts wrote
Dobbs wasn't just made up from nothing. It legally made sense. The historical part is a bit wanting. But there were problems with it. But Roe was even more made up. Its legally suspect from day 1. The legal roots are nonexistant. Disregarding precedent made sense since what was an undue burden was never really established. It was constantly going back to the court on the same question presented.
I think Alito played a bit fast and loose with the history part particularly around his analysis on the quickening part. And yes I think it makes a difference how much is covered by the text of the law because that's kind of their job. Roe existed because there was nothing addressing abortions, thus they literally made up the law, not interpreting the law.
macrofinite t1_iyszsya wrote
Well, there you go.
Roe wasn’t made up, it just offends the reactionary way of thinking. Clearly, making up a bit of history is a smidge distasteful to you, but whatever it takes for the cause, right?
But here in the real world, it’s impossible to create a set of laws that covers every facet of human need an behavior. There is no choice but to infer judgement in cases where the law is not explicit. And I really doubt you want to start arguing that a right to privacy is a terrible thing that is unconstitutional and needs to be overturned across the board. But maybe you do, who knows. The fascists are everywhere these days.
Alito, Thomas, Gorsuch, Kavanaugh, and Barrett are hacks, and Roberts is a pussy. They will enforce their personal preferences upon the law with the flimsiest justification, regardless of what the law says or means, and often in direct opposition to what is right. The deepest of irony is looking back at those decades of reactionaries whining about activist judges, and then coming to a full realization of how deeply they have fucked the country by installing these hacks for life.
Their whining was always projection. Because these people don’t give a shit about law, they just want the legitimacy that the “law” provides. Their way of thinking would be laughably childish if it weren’t hurting so many people.
ilikedota5 t1_iyszzsh wrote
The court is not where this stuff should be fought out. Its the province of the legislature. That's precisely why Dobbs threw it back to the States.
The court is supposed to be brakes on the system, to stop the other branches from infringing on existing rights, not inventing new ones out of whole cloth, because they aren't the legislature.
The issue with arguing that the right to privacy extends to abortions is that where does it stop? What is the limit to the right to privacy. All rights have their limits somewhere, because the right to something means defining what encompasses that right. I could strawman it to death, and my point is, without a limit it would swallow up everything else. And should SCOTUS be the one creating and defining those limits? From what basis of constitutional text should they have that power?
BaronVonBaron t1_iyqlp4m wrote
The line isnt there anymore. SCOTUS is now a captured regulatory agency.
BlatantFalsehood t1_iyrclgb wrote
This. If democracy survives, the Roberts Court will go down in history as the most illegimate, corrupt court ever.
And I HATE that Roberts thinks the issue is the Roe decision and that we just don't like it. BULL. I have been a SCOTUS fan for years, despite numerous rulings I didn't like. Bush v. Gore, anyone?
This court is illegimate because:
- Roberts shows no leadership. Leaks anyone?
- Three justices were appointed by someone who was installed by a foreign government and did not win the majority of the popular vote
- Justices leak regularly and give politicwl speeches
- One justice's wife was part of a plan to overturn a free and fair election, and he didn't bother to recuse himself from related cases.
- Even after all of this, Roberts doesn't see a need for a SCOTUS code of ethics.
Roberts, if you don't see the corruption in this, you are blind.
[deleted] t1_iypbu4t wrote
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Synkope1 t1_iypufy9 wrote
It's not just recently that the Supreme Court has been that way. They often have worked backward from the outcome they desired, it's how you get originalism and textualism as legal theories. The only thing that stops them from doing something as egregious as what you are saying is them trying to maintain the legitimacy of the Supreme Court. There is theoretically a line that the Supreme Court could cross in which state and federal governments would just say, "No, you've overstepped too far and we're not going to listen to that decision." The Supreme Court has no way to enforce its own decisions, it has to rely on other branches agreeing that its decisions are legitimate to enforce their decisions.
AxelShoes t1_iyrbsx6 wrote
Probably the most famous example was President Andrew Jackson just completely ignoring a Supreme Court decision in the 1830s regarding Cherokee sovereignty against the state of Georgia. He's alleged to have responded to the ruling by saying, "[Chief Justice] John Marshall has made his decision. Now let him enforce it." Whether he said those words or not, that was definitely his sentiment, and he simply refused to enforce the Court's decision.
Synkope1 t1_iyrk13j wrote
Oh yea, an example I heard recently was regarding a Oklahoma state supreme court case of the execution of Clayton Lockett. The Supreme Court of Oklahoma had issued a stay of execution (since the state has been unable to obtain the necessary drugs for a lethal injection and was planning to use an untested cocktail that would ultimately end up torturing him for 40 something minutes until he died) and the Governor issued and executive order that the execution would continue and the legislature began impeachment proceedings on the justices until they reversed the stay.
Just something to consider when the republicans eventually say "You can't just not listen to what the Supreme Court says!!"
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