Red Mosquito

I read an interesting argument that judicial restraint basically amounts to judicial abdication and that judicial activism is mostly a myth. I have to say it was pretty compelling.

4/5 wrote:I read an interesting argument that judicial restraint basically amounts to judicial abdication and that judicial activism is mostly a myth. I have to say it was pretty compelling.

Got a link?

Green Habit wrote:

4/5 wrote:I read an interesting argument that judicial restraint basically amounts to judicial abdication and that judicial activism is mostly a myth. I have to say it was pretty compelling.

Got a link?

It's a book lol. He also went strong after rational basis; I'm very sympathetic to his argument. I can expand more if you want, curious what you think.

4/5 wrote:

Green Habit wrote:

4/5 wrote:I read an interesting argument that judicial restraint basically amounts to judicial abdication and that judicial activism is mostly a myth. I have to say it was pretty compelling.

Got a link?

It's a book lol. He also went strong after rational basis; I'm very sympathetic to his argument. I can expand more if you want, curious what you think.

My first thought is that without the power of the sword (President) or the purse (Congress), the courts have far less actual power to wield judicial review than some want to claim. Their power lies with the ability to speak as an authority that will be able to be regularly accepted by the other two branches. Lose that, and you get what Andrew Jackson said how would treat John Marshall's work.

My second thought is that almost every jurist (as well as non-lawyer citizens like you and me) thinks that some laws are constitutional and some are not. And since people are different, we're always going to disagree with which laws fall in which bucket. And people regularly whine that struck down laws they like are "judicial activism" while upheld laws they don't like are "judicial abdication".

Finally, as far as the levels of scrutiny on the 14th Amendment go, I'll paraphrase Winston Churchill in thinking it's the worst form of interpreting that amendment, except for all the others.

Green Habit wrote: Finally, as far as the levels of scrutiny on the 14th Amendment go, I'll paraphrase Winston Churchill in thinking it's the worst form of interpreting that amendment, except for all the others.

Conservatives after Heller: I f***ing love incorporation.

Green Habit wrote:My first thought is that without the power of the sword (President) or the purse (Congress), the courts have far less actual power to wield judicial review than some want to claim. Their power lies with the ability to speak as an authority that will be able to be regularly accepted by the other two branches. Lose that, and you get what Andrew Jackson said how would treat John Marshall's work.

One of the things he discusses is the almost reverence towards judicial review demanded in Senate confirmation hearings, basically arguing that only those who are predisposed to defer to Congress and the president are chosen to be Justices.

Green Habit wrote:My second thought is that almost every jurist (as well as non-lawyer citizens like you and me) thinks that some laws are constitutional and some are not. And since people are different, we're always going to disagree with which laws fall in which bucket. And people regularly whine that struck down laws they like are "judicial activism" while upheld laws they don't like are "judicial abdication".

While that's true, and he could be accused of just being one of the latter, his argument is that it's essentially a systemic issue within the Courts to overly defer to other branches and state governments regardless of the constitutionality of the law in question. He contends that there are a few constitutional provisions that the Court does actually attempt to uphold, while most other parts the Court gives the appearance of review but in fact is already in the bag for the federal/state government.

Green Habit wrote:Finally, as far as the levels of scrutiny on the 14th Amendment go, I'll paraphrase Winston Churchill in thinking it's the worst form of interpreting that amendment, except for all the others.

In particular, he spends a chunk of the book going after the rational basis test, asserting that this isn't judicial review at all. And he also argues that the Court misapplied the 14th Amendment's privileges and immunities clause in the infamous Slaughterhouse cases, has acknowledged that it was misapplied in subsequent cases over the past 150 years and yet has chosen to basically allow that clause to be deleted from the Constitution for all intents and purposes.

Kinda figured I’d wake up this morning to find this thread in mid-discussion.

Yeah, monumental shift in abortion policy ushered in with nary a word from the Court.

It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

McParadigm wrote:It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

You don't even have to live in Texas to take advantage of that.

B wrote:

McParadigm wrote:It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

You don't even have to live in Texas to take advantage of that.

What is this now?

Bi_3 wrote:

B wrote:

McParadigm wrote:It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

You don't even have to live in Texas to take advantage of that.

What is this now?

“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who…”

McParadigm wrote:

Bi_3 wrote:

B wrote:

McParadigm wrote:It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

You don't even have to live in Texas to take advantage of that.

What is this now?

“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who…”

Sorry, totally out of the loop on this. How is that legal?

Bi_3 wrote:

McParadigm wrote:

Bi_3 wrote:

B wrote:

McParadigm wrote:It’s also wild to me, after the considerable time spent fretting over cancel culture and whether mask mandates are 1984, that so few are up in arms at a law deputizing private citizens to sue other private citizens they suspect of disobeying the will of the state by, say, giving a woman a ride to a clinic.

You don't even have to live in Texas to take advantage of that.

What is this now?

“Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who…”

Sorry, totally out of the loop on this. How is that legal?

I was hoping the Supreme Court would have an opinion on that very question.

From one standpoint, what incredible creativity to write the law this way. From another standpoint, deputizing militant pro-lifers to enforce a de facto abortion ban: what could possibly go wrong?

would they be able to counter sue ?

Well, first the law should probably be deemed unconstitutional...

4/5 wrote:From one standpoint, what incredible creativity to write the law this way. From another standpoint, deputizing militant pro-lifers to enforce a de facto abortion ban: what could possibly go wrong?

How many lawsuits can Focus on the Family file based on license plates seen the vicinity of Planned Parenthood?

B wrote:

4/5 wrote:From one standpoint, what incredible creativity to write the law this way. From another standpoint, deputizing militant pro-lifers to enforce a de facto abortion ban: what could possibly go wrong?

How many lawsuits can Focus on the Family file based on license plates seen the vicinity of Planned Parenthood?

How many angry ex-partners will? The Supremes should have squashed this until it could be heard in the Court.

Bi_3 wrote:

B wrote:

4/5 wrote:From one standpoint, what incredible creativity to write the law this way. From another standpoint, deputizing militant pro-lifers to enforce a de facto abortion ban: what could possibly go wrong?

How many lawsuits can Focus on the Family file based on license plates seen the vicinity of Planned Parenthood?

How many angry ex-partners will? The Supremes should have squashed this until it could be heard in the Court.

1 angry ex-partner per 1,000 FotF suits

Horrible day for freedom and equality.

Fuck Texas and fuck Trump’s Supreme Court.

If men could bare children, this wouldn’t happen.