# Could the refusal of Garland's nomination dangerously politicize the Supreme Court? **URL:** \ **Category:** Great Debates\ **Created:** [April 3, 2016, 3:09pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083 "2016-04-03T15:09:01Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 5, 2016, 7:44pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/61 "2016-04-05T19:44:57Z")
> [@UltraVires](#): > > Whether gays should be permitted to marry, abortion should be legal, the death penalty is a permissible punishment for child rapists, or whether 17 year olds should be sentenced to life imprisonment and for what crimes are all issue which should be fought in state legislatures across the country. There is a principled argument that these kind of questions are not sufficiently answered in the text of the Constitution. But there is no principled argument that limits that analysis exclusively to the stuff liberals like, which is almost always how it is framed and how you have framed it here. Your list could equally include the right to homeschool your kids, the right to have as many kids as you want, the right to spank your kids, the right to refuse medical treatment, the right of a church to discriminate on the basis of race, the right to self-defense with a handgun instead of a shotgun–or the application of the Bill of Rights to the states at all. Hell, the real list should probably include judicial review. The Constitution never says that the federal courts should have the power to strike down unconstitutional legislation. Judicial activism! Maybe we would be a more perfect union if there were no such thing as public defenders and states could ban access to birth control pills. But I doubt it. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [April 5, 2016, 8:04pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/62 "2016-04-05T20:04:30Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, 25 Democrats voted against cloture. And there is nothing in the Constitution anywhere about self-defense. That is a distinction without a difference. Cloture means stopping debate and taking a vote. A vote against cloture is a vote against taking a vote. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 5, 2016, 8:07pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/63 "2016-04-05T20:07:38Z")
No, a vote against cloture is a vote against taking a vote _immediately_. Did any of the senators you mention indicate that they planned to filibuster Alito’s nomination indefinitely? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 5, 2016, 8:34pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/64 "2016-04-05T20:34:29Z")
> [@Arrogantly\_Ignorant](#): > > > [@](#): > > > > Who was being denied the opportunity to enter into a union of one man and one woman? > > The law excluded an entire class of people solely because of that class. No, the law did not exclude anyone from the opportunity to enter into a union of one man and one woman. Your statement is simply false. > [@](#): > > Marriage is not just a religious/romantic endeavour, it also comes with significant legal privileges. Marriage does, because the common law has established marriage with that definition. SSM does not, because it didn’t. > [@](#): > > The definition of marriage that you quoted highlights that problem. That law had a definition of marriage that excluded a large swath of American citizens, which violates the Equal Protection Clause. Please name the American citizens who were denied the opportunity to enter into a union consisting of one man and one woman. This is the definition of marriage, as created by the common law. No one was denied the opportunity to enter into such a union. And, since no law existed that established SSM, no one was being denied the equal protection of any law, and no Constitutional violation was occurring. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2016, 8:40pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/65 "2016-04-05T20:40:20Z")
> [@John\_Mace](#): > > What do poll numbers have to do with the courts? Do please reread the question I was answering. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2016, 8:42pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/66 "2016-04-05T20:42:11Z")
> [@Shodan](#): > > This is the definition of marriage, as created by the common law. No one was denied the opportunity to enter into such a union. > > And, since no law existed that established SSM, no one was being denied the equal protection of any law, and no Constitutional violation was occurring. Where do you get the notion that the common law, however you wish to understand the term, supersedes the Constitution? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 5, 2016, 8:44pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/67 "2016-04-05T20:44:58Z")
> [@Shodan](#): > > We kind of did this one to death in the various SSM threads. . . . It’s a (rhetorical) answer to your question. > [@](#): > > . . . The Constitution does not establish all the rights of the people. It enumerates those of the rights of the people that are under the protection of the federal government. The rest of the rights are established by the states, or the people themselves. See the Tenth Amendment where it says so. > > The right to marriage is not created or established under the Constitution. . . . The equal access to marriage is established under the constitution. The government cannot permit Catholics to marry but deny the same right to Methodists. The government cannot deny marriage certificates to people of Irish ethnic descent. et. fucking. c. The states, and the Federal government, tried to deny the right to marriage to same-sex couples, exactly as the states, earlier, had tried to deny the right to mixed-race couples. Neither right is explicitly in the constitution, but both rights are protected by the equal protection clause. You can’t argue “the constitution doesn’t enumerate all rights” – which is exactly correct – and then try to pull “the constitution doesn’t mention X so it’s okay to ban X.” That contradicts what you just told us: there are rights not explicitly guaranteed. You’re arguing a Moebius Strip: by the time we’ve gone around it once, you’re on your own opposite side. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2016, 8:53pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/68 "2016-04-05T20:53:40Z")
> [@John\_Mace](#): > > What do poll numbers have to do with the courts? Taking that question in isolation, _of fucking course_ the Court, being a law-making and therefore political body, is affected by politics, including the strictly partisan kind as we well know, and societal trends. It has to in order to dispense justice, not just law. How can you doubt that? “The Supreme Court follows the election returns”, as Finley Peter Dunne pointed out. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2016, 9:41pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/69 "2016-04-05T21:41:44Z")
> [@ElvisL1ves](#): > > Taking that question in isolation, It wasn’t in isolation. You brought it up in the context of SSM and the court’s decision. You are aware, I hope, that public sentiment was largely against legalizing interracial marriage in 1967? > [@](#): > > _of fucking course_ the Court, being a law-making and therefore political body, is affected by politics, including the strictly partisan kind as we well know, and societal trends. It has to in order to dispense justice, not just law. How can you doubt that? > > “The Supreme Court follows the election returns”, as Finley Peter Dunne pointed out. It most certainly did not in _Loving_. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 5, 2016, 9:42pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/70 "2016-04-05T21:42:39Z")
> [@Shodan](#): > > Please name the American citizens who were denied the opportunity to enter into a union consisting of one man and one woman. This is the definition of marriage, as created by the common law. Please cite the statute or other legislated act in which that definition occurred prior to 1980, _i.e._, in Common Law. The presumption of marriage was that it was heterosexual, but it was not actually legislated. I have not found, (nor has anyone presented to me), any citation to support your claim. When the word marriage began to be applied to same sex unions in multiple societies, the meaning of the word changed in language. Thus, the court did not change the definition, but merely recognized that the definition had already changed. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 5, 2016, 9:44pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/71 "2016-04-05T21:44:19Z")
Common law is non-statutory by definition. But presumably that definition appears in a case. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 5, 2016, 10:08pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/72 "2016-04-05T22:08:08Z")
> [@John\_Mace](#): > > It wasn’t in isolation. You brought it up in the context of SSM and the court’s decision. Don’t embarrass yourself. Reread the question. > [@](#): > > You are aware, I hope, that public sentiment was largely against legalizing interracial marriage in 1967? You are aware, I hope, that the number in favor was large and the trend was rapidly moving in their direction? You aren’t? Pity. > [@](#): > > It most certainly did not in _Loving_. If that were true, you wouldn’t need the adverbs of self-reassurance. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2016, 10:08pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/73 "2016-04-05T22:08:23Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Common law is non-statutory by definition. But presumably that definition appears in a case. [_Baker v Nelson_?](https://en.wikipedia.org/wiki/Baker_v._Nelson#cite_note-obergefell-4) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2016, 10:13pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/74 "2016-04-05T22:13:19Z")
> [@ElvisL1ves](#): > > Don’t embarrass yourself. Reread the question. You don’t have to worry about me. > [@](#): > > You are aware, I hope, that the number in favor was large and the trend was rapidly moving in their direction? You aren’t? Pity. So, it’s your contention that the court should not only use polling data, but should extrapolate that data into the future? Really? And if the people are so much in favor of something, then what is the need for the courts to step in at all? There is, as we all know, only one “poll” that matters, and that poll happens in November. > [@](#): > > If that were true… It is true. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 6, 2016, 12:06am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/75 "2016-04-06T00:06:33Z")
> [@John\_Mace](#): > > [_Baker v Nelson_?](https://en.wikipedia.org/wiki/Baker_v._Nelson#cite_note-obergefell-4) Which bases its order on a presumption, not actual previous citations. Baker was not cited in any opinion by either those finding for or against the results in _United States v Windsor_ making appeals to Baker awkward, at best. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [April 6, 2016, 12:51am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/76 "2016-04-06T00:51:30Z")
> [@Arrogantly\_Ignorant](#): > > > [@Jackmannii](#): > > > > Even worse, we could see development of a politicized Congress. > > Well, politicization in Congress is expected. It always has. The problem is the erosion of tenets like compromise and bi-partisanship. McConnell’s refusal shows the rising prevalence of needless obstructionism and stubborn partisanship. I think you were whooshed by the well-founded sarcasm. Asking whether the US Supreme Court might become “dangerously politicized” is like asking whether there’s a risk that water might become dangerously wet. The only thing particularly noteworthy about the Republicans’ position on this and McConnell’s rather remarkable public pronouncement thereof is that it explicitly articulates the fact that the Supreme Court has now truly and fully ceased to be an institution of justice and is now simply a political tool of the legislative branch. The funny thing about this fundamental usurpation of government is that most of those who approve of it are the same wingnuts who reverently carry around little copies of the Constitution and piously recite the sacred screed at every opportunity where it suits their purposes. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [April 6, 2016, 2:25am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/77 "2016-04-06T02:25:33Z")
I really do apologize to everybody reading this thread, I shouldn’t have use SSM as an example. I sometimes forget what is normal here where I live for the past generation is still new and confusing to most everyone else. I’d like to whittle things down a bunch and focus on just one aspect of marriage, financial co-mingling. This is two peoples who are two financial entities agree to combine their entities into one financial entity; joint bank accounts, joint savings, joint retirement funds and the like. I think you’ll find in the body of law for your jurisdiction that almost all the written laws about marriage actually deal with dissolution of marriage, how the money is split up between the two parties. The Fifth Amendment equal protection under the law is required to be applied here, we have to apply these laws anytime a co-mingled financial entity is dissolved. SSM doesn’t interfere with the rights of anyone else … anyone is still able to believe that marriage is exactly what Pope Frances says it is … or whatever … the law should never be used to impose morals on We the People. Besides … it’s not about Same Sex Marriage … it’s about Same Sex Divorce … here’s where we’re obligated to impose the 14th Amendment. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [April 6, 2016, 2:28am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/78 "2016-04-06T02:28:16Z")
Interesting … 48 of 50 States outlawed the burning of the American Flag … Antonin Scalia cast the swing vote to overturn all those laws … Free Speech is Free Speech !!! ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 6, 2016, 10:27am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/79 "2016-04-06T10:27:25Z")
> [@Shodan](#): > > …This is the definition of marriage, as created by the common law. No one was denied the opportunity to enter into such a union. > > And, since no law existed that established SSM, no one was being denied the equal protection of any law, and no Constitutional violation was occurring. > > Regards, > Shodan Two things: 1) common law changes all the time (I’m assuming you’re talking about judicial precedent) 2) You’re missing the entire point. The problem was that the law itself defined marriage as exclusively between man and woman, which violates the EPC because it excluded a suspect class (and denied them their liberty to marry). Yes, essentially, the defintion of marriage was the “union of man and woman.” However, that definition isn’t static, which the _Obergefell_ majority explictly mentions. It used to be defined as the union of man and woman of the same race. By your logic, the EPC wasn’t violated because no one was denied “the opportunity to enter into such a union,” besides the ones, you know implicity (and/or explicitly excluded. It was the very defintion of marriage, codified by law, that violated the EPC. How does excluding a portion of the population from that solely on account of their sexuality not violate the EPC? But, honestly, can you point to a thread where we can continue to discuss this topic? Because I really don’t want my thread railroaded. Thank you. ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 6, 2016, 10:50am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/80 "2016-04-06T10:50:57Z")
> [@wolfpup](#): > > I think you were whooshed by the well-founded sarcasm. Asking whether the US Supreme Court might become “dangerously politicized” is like asking whether there’s a risk that water might become dangerously wet. The only thing particularly noteworthy about the Republicans’ position on this and McConnell’s rather remarkable public pronouncement thereof is that it explicitly articulates the fact that the Supreme Court has now truly and fully ceased to be an institution of justice and is now simply a political tool of the legislative branch. The funny thing about this fundamental usurpation of government is that most of those who approve of it are the same wingnuts who reverently carry around little copies of the Constitution and piously recite the sacred screed at every opportunity where it suits their purposes. Well, to be fair, my last question in the original post was whether McConell’s action dangerously politicized the Court **more**. It’s not in the title though (think there was some problem with word count), which, I guess, is the source of the whoosh. I realize that the Supreme Court has become increasingly become politicized (and, to a degree, always was). However, McConell’s actions seem to be a gigantic step further down that road. As you said, it’s making the Supreme Court a tool of the legislature instead of its own independent branch. Which is especially troublesome because the judicial branch is the weakest out of all three. It establishes a dangerous precedent and, as you alluded to, highlights the depths of don’t-give-a-fucks in the legislature (the Senate, at the very least). I just don’t think it should be shrugged off or ignored; there needs to be a continual discussion on the issue because it has far reaching consequences for our government. That probably seems drama-queenish, but at least it’s genuine concern? [Previous page](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083.md?page=3) [Next page](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083.md?page=5)