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  #51  
Old 06-24-2019, 12:21 PM
Exapno Mapcase is offline
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Well, the facts of the matter would probably be relevant. Are there Muslim dead buried there? If not, some could consider the action of placing a "crescent next to the crucifix" an act of provocation, not veneration.
Some court decisions have ruled that if one religion's symbol is allowed, then every religion's symbol must be. Which has led to some amusing contretemps when the Satanic Temple moves in and demands that it gets a spot. Many places have taken down their Christian symbols instead. Which of course was the intent. Christians hate, hate, hate the thought of giving other religions equality. And get apoplexy at the thought that atheists have equal rights.

And before anybody says anything, the IRS has recognized it as a religion. And no, it doesn't really worship Satan, which is an imaginary being.

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As you know, this is not just the case in the US. I don't think the acronymic trope 'WASP' is unique to Canada.

That said, maybe better to update it a bit. Lose the P and add Straight and Male. How about SWASM?
WASP (White Anglo-Saxon Protestant) was originally applied not so much to religion as to class. It came from a study of the elite class in Philadelphia and later covered what we would now call the Establishment. (All those hippie slogans about fighting the Establishment? This is what they were against.) Protestant was an important marker at that time, due to the heavy anti-Catholic backlash when Kennedy ran for office. E. Digby Balzell's* book, The Protestant Establishment: Aristocracy and Caste in America, was hugely influential in sociological circles and the acronym, actually coined by Andrew Hacker in 1957, spread immediately throughout the chattering class.

*A WASP himelf, with one of the great all-time WASP names.
  #52  
Old 06-24-2019, 12:32 PM
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Court allows trademarks for scandalous or offensive names, like FUCT. That's okay with me, Victorian morality had its day.
9-0 on the issue of "offensive"; 6-3 on "scandalous". I love 9-0 decisions. It's like a particularly strong statement that the lower court ruling was not well thought out.

Much more interesting was the 5-4 today from the Supreme Court of the United States on the constitutionality of a gun-use enhancement statute, which the Court held was unconstitutionally vague. Gorsuch, J., not only joined the "liberal" justices; he wrote the opinion. United States v. Davis, 18-431, (2019).
  #53  
Old 06-24-2019, 03:55 PM
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Court allows trademarks for scandalous or offensive names, like FUCT. That's okay with me, Victorian morality had its day.
What about registering racial epithets? Are you cool with that?

I'm with the 3 in the minority. I don't think there is a First Amendment problem with not registering pure profanity that has no viewpoint at all.
  #54  
Old 06-25-2019, 11:01 AM
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Justices rule 7 -2 in favor of African American man convicted of capital murder even though prosecutor had excluded African Americans from the jury.

The majority opinion, a stinging rebuke of racist practices by the prosecutor, was written by Brett Kavanaugh.

https://slate.com/news-and-politics/...ssissippi.html

Last edited by zimaane; 06-25-2019 at 11:01 AM. Reason: add link
  #55  
Old 06-25-2019, 11:19 AM
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What about registering racial epithets? Are you cool with that?

I'm with the 3 in the minority. I don't think there is a First Amendment problem with not registering pure profanity that has no viewpoint at all.
I am okay with it. Unfavorable speech is what needs protection. This question was already decided in Matal v. Tam which struck down the disparaging portion of the same restrictions on trademarks and copyrights and I never suspected this outcome would be any different.
  #56  
Old 06-25-2019, 11:54 AM
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Originally Posted by KarlGauss View Post
Well, the facts of the matter would probably be relevant. Are there Muslim dead buried there? If not, some could consider the action of placing a "crescent next to the crucifix" an act of provocation, not veneration.

"Sorry, but before you can plant a Muslim crescent in this cemetary, you gotta plant a Muslim" So, IOW, anytime a Muslim happens to display any trappings of his faith anywhere a Christian might see it, it's automatically "an act of provocation"?

And it's The Left that gets called "snowflakes." *whistles*

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Along with the crescent, if a group ponies up the cash to erect a statue of Baphomet, that's cool as well, right?
It's their cash, not mine.
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  #57  
Old 06-25-2019, 02:04 PM
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So, IOW, anytime a Muslim happens to display any trappings of his faith anywhere a Christian might see it, it's automatically "an act of provocation"?

And it's The Left that gets called "snowflakes." *whistles*
Assuming you simply misunderstood me, I will quote myself and ask you to re-read it and then reconsider your "anytime", "any trappings", "anywhere", and "automatically" against my "some could consider".
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Originally Posted by Me
If not, some could consider the action of placing a "crescent next to the crucifix" an act of provocation, not veneration
Just to be crystal clear, I used "some could consider" imagining a legal challenge brought by some asshole. Do you follow?

Last edited by KarlGauss; 06-25-2019 at 02:05 PM.
  #58  
Old 06-25-2019, 10:35 PM
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I am okay with it. Unfavorable speech is what needs protection. This question was already decided in Matal v. Tam which struck down the disparaging portion of the same restrictions on trademarks and copyrights and I never suspected this outcome would be any different.
I disagree. I certainly believe (however horrible the belief is) that if a person wants to say that blacks are inferior and should be segregated, that is protected speech. If a person says that blacks should all be shipped back to Africa, that is also protected speech. Again, however horrible, if a person wants to call them all niggers, that is protected speech.

But if I have a brand of tobacco that I want to brand Nigger Hair Smoking Tobacco: https://en.wikipedia.org/wiki/Bigger_Hair

then what I am communicating there? Even the worthless ideas in my first paragraph above at least have some communicative value. Why is the name of my tobacco a speech issue?

Last edited by UltraVires; 06-25-2019 at 10:35 PM.
  #59  
Old 06-26-2019, 12:51 AM
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What "public land" was this?
State land, specifically Maryland-National Capital Park and Planning Commission land.
  #60  
Old 06-26-2019, 07:21 AM
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I disagree. I certainly believe (however horrible the belief is) that if a person wants to say that blacks are inferior and should be segregated, that is protected speech. If a person says that blacks should all be shipped back to Africa, that is also protected speech. Again, however horrible, if a person wants to call them all niggers, that is protected speech.

But if I have a brand of tobacco that I want to brand Nigger Hair Smoking Tobacco: https://en.wikipedia.org/wiki/Bigger_Hair

then what I am communicating there? Even the worthless ideas in my first paragraph above at least have some communicative value. Why is the name of my tobacco a speech issue?
How is it NOT speech? It may be speech to sell products, rather than speech designed to engage in social/political discourse, but it is speech, none the less.
  #61  
Old 06-26-2019, 09:57 AM
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How is it NOT speech? It may be speech to sell products, rather than speech designed to engage in social/political discourse, but it is speech, none the less.
It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral.

And, I understand that my rule could be abused in that the government could declare that something is "profane" because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don't see the speech issue with not registering the trademark.

How bad will it go? Cum on my face? Eat my ...? I'll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register?

Last edited by UltraVires; 06-26-2019 at 09:58 AM.
  #62  
Old 06-26-2019, 10:38 AM
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It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral.

And, I understand that my rule could be abused in that the government could declare that something is "profane" because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don't see the speech issue with not registering the trademark.

How bad will it go? Cum on my face? Eat my ...? I'll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register?
The band "Slants" was prevented from registering their name because it was seen as derogatory. Now, if someone used that as a slur, it certainly would be derogatory. This band wanted to reclaim the word - is the government supposed to say, no they can't? Well, that was settled in Tam. The same thing applies here. What was struck down was a content based restriction.

Would I celebrate various vulgar trademarks? No way. But the principle of speech is greater than that so I would celebrate our willingness to allow that which we hate.
  #63  
Old 06-26-2019, 10:50 AM
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What about registering racial epithets? Are you cool with that?

I'm with the 3 in the minority. I don't think there is a First Amendment problem with not registering pure profanity that has no viewpoint at all.
Yes, I'm okay with that. When you have people decide that some words are okay and some are not, in my opinion that flies in the face of the first amendment. If I want to sell Brazil nuts with a racial slur name on the package, that's my right to do so and I would hope the marketplace would reward me with very low sales. Let the people decide which trademarks cross the line and let them vote with their dollars.
  #64  
Old 06-26-2019, 11:24 AM
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How is it NOT speech? It may be speech to sell products, rather than speech designed to engage in social/political discourse, but it is speech, none the less.
The Central Hudson test limits the First Amendment rights of commercial speech, though.

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Under Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980), commercial speech is less protected under the First Amendment than other forms of speech.

Regulating Commercial Speech

Central Hudson Test

Under Central Hudson, there is a four-part test for whether governmental regulation of commercial speech is constitutional.
  • First, in order for the commercial speech to be considered as protected speech under the First Amendment, the speech must concern lawful activity, and the speech must not be misleading. If this step is met and the commercial speech is considered speech, then the court will use steps 2-4 below to determine whether the government regulation is constitutional
  • Second, the alleged governmental interest in regulating the speech must be substantial
  • Third, the regulation must directly advance the governmental interest asserted
  • Fourth, the regulation must not be more extensive than is necessary to serve the interested expressed in step 3
IANAL, but IMO those steps can clearly be used to allow FUCT but not Nigger without any changes in current law.
  #65  
Old 06-26-2019, 11:30 AM
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The band "Slants" was prevented from registering their name because it was seen as derogatory. Now, if someone used that as a slur, it certainly would be derogatory. This band wanted to reclaim the word - is the government supposed to say, no they can't? Well, that was settled in Tam. The same thing applies here. What was struck down was a content based restriction.

Would I celebrate various vulgar trademarks? No way. But the principle of speech is greater than that so I would celebrate our willingness to allow that which we hate.
That's one of the reasons I hesitate and would be reluctant (as a judge) to disallow a trademark. This and Redskins come to mind. When there is a genuine debate about something, the Trademark office should not be the one to resolve it.

And yes, Slants communicated a message. FUCT is a silly play on a vulgarity and has no real redeeming message. Nobody is denied from communicating an idea that they want because you cannot register it, just how I can sell my tobacco without a racial slur that has absolutely nothing to do with the product.
  #66  
Old 06-26-2019, 11:31 AM
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Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever:

https://www.supremecourt.gov/opinion...18-96_5i36.pdf
  #67  
Old 06-26-2019, 11:35 AM
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The Central Hudson test limits the First Amendment rights of commercial speech, though.



IANAL, but IMO those steps can clearly be used to allow FUCT but not Nigger without any changes in current law.
The problem with almost all of these "tests" that the Burger Court came up with is that they really solve nothing at all. You can read them as allowing FUCT but not Nigger, but I can read them as allowing Nigger but not FUCT.

These tests raise more questions than answers so the test is revised and revised again to the point that the case law bears no resemblance to what we are actually trying to figure out. The Lemon test is one of the worst, but this is a close second.
  #68  
Old 06-26-2019, 11:36 AM
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Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever:

https://www.supremecourt.gov/opinion...18-96_5i36.pdf
Did you mean to link to a different case? That appears to be about liquor licensing.
  #69  
Old 06-26-2019, 11:43 AM
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It is speech, of course, but I meant a speech issue in that a regulation denying a trademark registration because of a profanity is viewpoint neutral.

And, I understand that my rule could be abused in that the government could declare that something is "profane" because it disagrees with it, so I would be very cautious in how I (as a judge) would permit a refusal to register a trademark. But, as a pure profanity or insult with no communicative value like FUCT or Nigger Hair Tobacco, I don't see the speech issue with not registering the trademark.

How bad will it go? Cum on my face? Eat my ...? I'll spare you the rest, but think of the most vulgar thing you can think of. That can be registered? For what value of speech do we need, not want but need to, consistent with the Constitution, register?
Funny, I believe that society can determine exactly how much of that will occur. If society refuses to buy the products, then they won't happen. If they are commercially successful, then that makes me think that refusing to allow them is imposing the will of some small segment of society (that has more Puritan views on language) on everyone else.
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Old 06-26-2019, 11:45 AM
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Gorsuch again siding with the 4 Libs and striking down federal criminal supervised release law. And I am all for this opinion. The feds are too draconian in their sentencing, keeping a person in the system forever:

https://www.supremecourt.gov/opinion...18-96_5i36.pdf
United States v. Haymond, 17-1672 (2019).

A link to the correct set of opinions.
  #71  
Old 06-26-2019, 11:46 AM
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New joke forming in my mind:

How do you spell "Kennedy"?

G-O-R-S-U-C-H.

  #72  
Old 06-26-2019, 11:58 AM
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Assuming you simply misunderstood me, I will quote myself and ask you to re-read it and then reconsider your "anytime", "any trappings", "anywhere", and "automatically" against my "some could consider".

Just to be crystal clear, I used "some could consider" imagining a legal challenge brought by some asshole. Do you follow?
Yeah, I'm hip. I'll concede painting a counter-argument with too broad a brush.

Still, a question remains: do you feel that any trappings of Islamic faith in a cemetery are appropriate if and only if there is a person of that faith actually interred there?

(Disclaimer: not a Muslim nor a Christian. Nor Jewish. Don't even plan to be buried in a cemetery.)
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  #73  
Old 06-26-2019, 12:42 PM
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Funny, I believe that society can determine exactly how much of that will occur. If society refuses to buy the products, then they won't happen. If they are commercially successful, then that makes me think that refusing to allow them is imposing the will of some small segment of society (that has more Puritan views on language) on everyone else.
And that would be a good argument to the legislature about why we don't need to pass such a law, but it does not address the constitutional issue.

It also fails to understand democracy. If the legislature passes a law prohibiting these types of trademark registration, then it is a rule of a majority through our elected representatives, not just a handful of Puritans.

I don't think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don't have to walk past a "Cum on My Face" T-shirt which is given the same federal protection as all other T-shirts. I'm far from a Puritan, but there is no bounds of decency now which this law cannot exceed, and no matter how Puritan or laissez faire one is on this issue, there will be something that goes past what you think is proper.

Further, to be successful in marketing, a company does not have to have widespread approval, just approval in its select market. For example, Nigger Hair Tobacco would not have to compete with the scale of Winston or Marlboro; it would just have to produce and sell their product in the limited markets that would buy it. These companies would not be going out of business if they enacted a good business model.
  #74  
Old 06-26-2019, 12:58 PM
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Still, a question remains: do you feel that any trappings of Islamic faith in a cemetery are appropriate if and only if there is a person of that faith actually interred there?
Depends on the cemetary (at least). A military cemetery in a multi-faith nation honours all those who died in its wars so, yes, appropriate.

A shrine to (or even acknowledgement of) the devil in an exclusively orthodox Jewish or Catholic or 'evangelical Christian' private cemetery? Not so much.
  #75  
Old 06-26-2019, 09:23 PM
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And that would be a good argument to the legislature about why we don't need to pass such a law, but it does not address the constitutional issue.

It also fails to understand democracy. If the legislature passes a law prohibiting these types of trademark registration, then it is a rule of a majority through our elected representatives, not just a handful of Puritans.

I don't think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don't have to walk past a "Cum on My Face" T-shirt which is given the same federal protection as all other T-shirts. I'm far from a Puritan, but there is no bounds of decency now which this law cannot exceed, and no matter how Puritan or laissez faire one is on this issue, there will be something that goes past what you think is proper.

Further, to be successful in marketing, a company does not have to have widespread approval, just approval in its select market. For example, Nigger Hair Tobacco would not have to compete with the scale of Winston or Marlboro; it would just have to produce and sell their product in the limited markets that would buy it. These companies would not be going out of business if they enacted a good business model.
So your solution is not to deny them the ability to market, but simply to deny them the ability to trademark the offending language? That's just silly. Or do you believe that the government should be able to deny the speech entirely, preclude it from being marketed at all? If so, at what point do you think the ability of the government to preclude such speech (commercial speech) ends?

The constitutional issue is simple. This is speech. The First Amendment precludes the government from abridging freedom of speech. I find the choice of that particular verb quite instructive under the circumstances.
  #76  
Old 06-27-2019, 09:04 AM
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A shrine to (or even acknowledgement of) the devil in an exclusively orthodox Jewish or Catholic or 'evangelical Christian' private cemetery? Not so much.
Wouldn't such cemeteries be on private ground? That's not the issue; of course it's legal to put symbols of a particular faith, and not of other faiths, on private ground. The issue is when it's public ground.

AIUI, part of the issue in the specific case seems to be that the land became public in 1961, but the cross was built in 1925. SCOTUS seem not to have been ruling on whether the cross could legally be built on public land, but on whether the municipality's required to take down a pre-existing cross. I can see the distinction; but am worried about the size of the can of worms involved.
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Old 06-27-2019, 09:17 AM
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I don't think it unreasonable or unconstitutional to have a society where you take your children out shopping for school clothing and don't have to walk past a "Cum on My Face" T-shirt which is given the same federal protection as all other T-shirts.
I guess we shop for clothing at different places.
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Old 06-27-2019, 10:12 AM
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Well, now...

Supreme Court tosses the citizenship question from the 2020 census form.

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The court was deeply fractured on the issue, but on the section that essentially eliminated the citizenship question, the vote was 5-4, with Chief Justice John Roberts joining the four-member liberal wing of the court.

The court's majority said the government has the right to ask a citizenship question, but that it needs to properly justify changing the longstanding practice of the Census Department. The Trump administration's justification was "contrived," Roberts wrote, and did not appear to be the genuine reason for the change, possibly implying that the real reason was political.
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Old 06-27-2019, 10:16 AM
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On the other side of the coin:

Supreme Court allows severe partisan gerrymandering to continue

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Washington (CNN)The Supreme Court said Thursday that federal courts must stay out of disputes over when politicians go too far in drawing district lines for partisan gain -- a dramatic and sweeping ruling that could fundamentally affect the balance of power in state legislatures and Congress.

Chief Justice John Roberts wrote the 5-4 decision for the conservative majority.
"Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is 'incompatible with democratic principles' ... does not mean that the solution lies with the federal judiciary," he wrote.

Really, Johnny? If the judiciary cannot fix it, who the hell is going to??
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Old 06-27-2019, 10:20 AM
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On the other side of the coin:

Supreme Court allows severe partisan gerrymandering to continue




Really, Johnny? If the judiciary cannot fix it, who the hell is going to??
Presumably judiciaries that are not federal.
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Old 06-27-2019, 10:31 AM
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The left has the playbook that gets Roberts' vote every time:

1) After oral argument, write that the Court seems ready to side with (conservative position) 5-4.

2) Continue publishing articles with the tone that the decision has already been announced 5-4.

3) Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans.

4) Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown.

5) Keep it up.

6) John Roberts will get squicky and flip.

Roberts is an embarrassment. He is more worried about his public image than getting the law right.
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Old 06-27-2019, 10:37 AM
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The left has the playbook that gets Roberts' vote every time:[snip]
You're assuming he reads this particular "playbook"

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Roberts is an embarrassment. He is more worried about his public image than getting the law right.
No, he's more worried about "The Roberts Court" being said in the same breath as the Dred Scott decision. In that, oft times, he gets the law right.
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Old 06-27-2019, 10:38 AM
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Presumably judiciaries that are not federal.
Mmmm. Good point.
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Old 06-27-2019, 10:46 AM
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Originally Posted by UltraVires View Post
The left has the playbook that gets Roberts' vote every time:

1) After oral argument, write that the Court seems ready to side with (conservative position) 5-4.

2) Continue publishing articles with the tone that the decision has already been announced 5-4.

3) Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans.

4) Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown.

5) Keep it up.

6) John Roberts will get squicky and flip.

Roberts is an embarrassment. He is more worried about his public image than getting the law right.
Interesting. How many times has the left run this play?
  #85  
Old 06-27-2019, 10:49 AM
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Keeping the citizenship question off is a wonderful ruling. I'll tip a glass to the court, but it has to wait until later. Ironically, the gerrymandering ruling sucks, but that one really is in the hands of every voter to address. The eople DO have the power to stop that with our individual votes. (Not easy, no. But within our power.)
The people had little to control over the citizenship question, however. And keeping it off now means that a truer voice of the people will be heard, and it is this same voice that CAN control the gerrymandering shenanigans. (So it's up to the people, that CAN work out, but it requires participation. Talk about a double edged sword!)
  #86  
Old 06-27-2019, 10:52 AM
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Originally Posted by CaptMurdock View Post
IANALBIALIOTI (I Am Not A Lawyer But I Act Like One On The Internet), but the way I read the decision, it broke down like this:

1. Did anybody have standing to challenge the question in the first place? Yes (unanimous)

2. Did the Secretary of Commerce have the authority to ask the question in the first place? Yes (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)

3. Can the question's inclusion be reviewed? Yes (everybody but Gorsuch and Alito)

4. Does the question violate the Census Act's provision that it can't be asked if the information is elsewhere available (in this case, from Department of Justice data)? No (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)

5. Does the question violate the Census Act's requirement that all questions must be submitted in a report to Congess at least two years in advance? No, as the Act also provides for a supplemental report that includes the question(s), which was filed (Roberts, Kavanaugh, Gorsuch, Alito, Thomas)

6. In light of information made available after arguments were made, does the Court have the authority to ask that the case be brought back to lower courts for possible reconsideration? Yes (Roberts, Ginsburg, Breyer, Sotomayor, Kagan).
  #87  
Old 06-27-2019, 11:23 AM
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Originally Posted by CaptMurdock View Post
On the other side of the coin:

Supreme Court allows severe partisan gerrymandering to continue




Really, Johnny? If the judiciary cannot fix it, who the hell is going to??
What he said is that this can be fixed in the states or in Congress by passing laws, or conceivably by a constitutional amendment. In other words by a political process. I don’t necessarily agree with this myself, but that is the decision of the court.

It’s long been known that some things are political questions that cannot be settled by the courts. Just what those are is debatable.
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Last edited by suranyi; 06-27-2019 at 11:25 AM.
  #88  
Old 06-27-2019, 11:54 AM
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Is what happened effectively that SCOTUS first said 'yes, we are going to hear these cases' and then said 'we have no jurisdiction to hear these cases'?
  #89  
Old 06-27-2019, 12:02 PM
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Originally Posted by thorny locust View Post
Is what happened effectively that SCOTUS first said 'yes, we are going to hear these cases' and then said 'we have no jurisdiction to hear these cases'?
Sounds like it. It only takes four (three?) justices to agree to hear a case.

And keep in mind the court said that state courts can still hear gerrymandering cases - just not federal courts.
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Old 06-27-2019, 12:03 PM
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Originally Posted by CaptMurdock View Post
Should be noted that they didn't kick it off; they sent it back to the lower court for more fact-finding. It can still get on, but the effort to do so is going to start running into a time crunch.
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Old 06-27-2019, 12:04 PM
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On the other side of the coin:

Supreme Court allows severe partisan gerrymandering to continue




Really, Johnny? If the judiciary cannot fix it, who the hell is going to??
Not everything that is bad is unconstitutional. This is a classic example.
  #92  
Old 06-27-2019, 12:24 PM
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Is what happened effectively that SCOTUS first said 'yes, we are going to hear these cases' and then said 'we have no jurisdiction to hear these cases'?
"Jurisdiction" is a poor word to use here. The Court has subject matter jurisdiction over the general area. But the political question doctrine when applied results in the determination that the issue is non-justiciable. That is, it's not a question of law before the court, but a question of political power. And that means it's not really a "case or controversy", as that terms is used in the Constitution, and cannot be heard by the federal courts.

Baker v. Carr, 369 U.S. 186 (1962) sets forth a whole list of questions to consider when determining if an issue is a non-justiciable political question.

At some point, if a non-justiciable question is presented to a court (political question, unripe question, moot question, advisory opinion, collusive suit, etc.), somewhere along the line the court system has to make that determination. Here, the determination was made finally in these cases by the Supreme Court of the United States. Since the issue had not been decided previously, it was important for the Court to grant the requested writs of certiorari so that it could reach a determination. Granting certiorari is not the same as saying, "yes, we have subject matter jurisdiction and this is justiciable."
  #93  
Old 06-27-2019, 02:16 PM
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Quote:
Originally Posted by UltraVires View Post
The left has the playbook that gets Roberts' vote every time:

1) After oral argument, write that the Court seems ready to side with (conservative position) 5-4.

2) Continue publishing articles with the tone that the decision has already been announced 5-4.

3) Publish more ominous arguments about how the Supreme Court is nothing but a 5-4 tool for Republicans.

4) Write stories about how the Burger and Rehnquist Courts were respected, but the Roberts Court is still unknown.

5) Keep it up.

6) John Roberts will get squicky and flip.

Roberts is an embarrassment. He is more worried about his public image than getting the law right.
Do you not suppose that Roberts would be more worried about his public image if he generally made decisions influenced by cunning liberals and their tactics, than if he made those decisions based upon his knowledge of the law and interest in "getting it right"?
  #94  
Old 06-27-2019, 02:42 PM
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Originally Posted by DSYoungEsq View Post
Should be noted that they didn't kick it off; they sent it back to the lower court for more fact-finding. It can still get on, but the effort to do so is going to start running into a time crunch.
I'm scratching my head at what the census department has to show on remand. What if it just said that it wanted to start asking the question again so that people would get used to seeing the question so as not to be afraid of it in the future (In addition to the VRA enforcement)? Roberts' opinion cites a litany of cases showing how deferential courts are supposed to be to agencies, but in this case because the extra discovery, which was agreed should not have been permitted anyways, showed that Ross made the decision to add the question before contacting the DOJ to request the request to add it, then that couldn't have been the real reason. Thomas does a good job in dissent explaining which this is not necessarily so.

The rule seems to be only if you are going to tell lies, they don't have to be good, but good enough that the judge could swallow it.

And it sets a bad precedent. If I don't like a federal regulation, I forum shop for a judge and during the case the judge rules incorrectly on almost every point of law, but I get to go on a fishing expedition and if I catch something, anything during my improper discovery phase, I win.
  #95  
Old 06-27-2019, 02:57 PM
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Originally Posted by DSYoungEsq View Post
Not everything that is bad is unconstitutional. This is a classic example.
Could a D Congress fix it?
  #96  
Old 06-27-2019, 03:39 PM
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Could a D Congress fix it?
Absolutely:

Quote:
Originally Posted by US Constitution, Article I, Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.
So Congress could pass a law requiring districts drawn based upon no partisan considerations at all, or only allow say a 20% bump for the majority party.

Then the courts could handle these claims as that would address Roberts' objection that under current law, partisanship is permitted in drawing districts and courts had the problem of saying what was too much partisanship.
  #97  
Old 06-27-2019, 06:54 PM
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Originally Posted by suranyi View Post
What he said is that this can be fixed in the states or in Congress by passing laws, or conceivably by a constitutional amendment. In other words by a political process. I donít necessarily agree with this myself, but that is the decision of the court.

Itís long been known that some things are political questions that cannot be settled by the courts. Just what those are is debatable.
Oh, it could also be fixed by initiative referendum, which is how we did it in California.
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  #98  
Old 06-27-2019, 07:04 PM
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Do you not suppose that Roberts would be more worried about his public image if he generally made decisions influenced by cunning liberals and their tactics, than if he made those decisions based upon his knowledge of the law and interest in "getting it right"?
Also to UltraVires:

And what about the gerrymandering vote by Roberts? Maybe the cunning left just wasn't up to the task of cleverly getting him to vote for their side? Or what? How do you feel about that one?
  #99  
Old 06-27-2019, 10:12 PM
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I'm scratching my head at what the census department has to show on remand. What if it just said that it wanted to start asking the question again
I could have sworn I posted in response to this already, but the post seems to have disappeared. Maybe I never actually hit 'submit'?

Anyway: AIUI, the census department didn't want to ask the question in the first place. They were ordered to, over their objections, by the Secretary of Commerce; to whom the Congress some time ago delegated the power to do so.

https://www2.census.gov/cac/sac/meet...-response.pdf?

Quote:
CSAC wishes to officially state our opposition to the last-minute inclusion of the citizenship question on the 2020 Census. We have concerns about the lack of adequate testing, about the implications for nonresponse {unit and item), implications for the cost, and implications for attitudes about the Census Bureau and concerns about confidentiality. There is a hierarchy of needs for the decennial census, with an accurate count of foremost importance, so any proposed changes should be evaluated in consideration of the potential impact on completeness and accuracy.
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