Religion, Politics and World Events They make great dinner conversation, don't you think? plus Political Film

Supreme Court -- 2011 and beyond discussion

Old 06-26-13, 11:00 PM
  #751  
DVD Talk God
 
kvrdave's Avatar
 
Join Date: Aug 1999
Location: Pacific NW
Posts: 86,201
Re: Supreme Court -- 2011 and beyond discussion

Red Dog - your analysis leaves me more jaded about the court system and that is not easy to do. It essentially comes down to, "Here is what I want the law to be, now how to I put together some half assed reasoning to justify it, even if it is easily seen through?"
kvrdave is offline  
Old 06-26-13, 11:04 PM
  #752  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

The thing about this ruling on Prop 8 is that they didn't touch the constitutionality of the law.

They ruled that the people of California have no standing in court to defend ANY law that they vote on if the Governor and Attorney General of the state don't want to defend said law. Forget the gay marriage issue - the SCOTUS just took away the rights of the people of California to pass laws directly.

As soon as one of those laws is challenged in court if the Governor and Attorney General don't like that law, or if that law conflicts with their own political agendas, or if that law threatens their power base, then all they have to do is not defend it and it will be nullified in court as there would be no one of standing defending that law. Even if the law is beneficial (like Prop 13, for example) if someone challenges it on even the flimsiest of legal grounds, as long as there is a shred of legal reasoning that would be enough to hold it over for a hearing, that law will be overturned in court as there would be no defense.

I heard a couple different constitutional law scholars on the radio today, and that was their take on it. That's pretty damned chilling. The people of California (and maybe every other state) are now powerless to override a corrupt legislature or to engage in direct democracy. All it will take is one legal challenge aided and abetted by the Governor and Attorney General and said law will be overturned judicially.

That's just wrong. The people should have the right to defend their laws if their public officials refuse to do their constitutional duty. Let the courts decide the constitutionality of the laws, not who can defend the laws.
B5Erik is offline  
Old 06-26-13, 11:10 PM
  #753  
DVD Talk Hero
 
Join Date: Feb 2000
Location: Rosemount, MN
Posts: 31,308
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by DVD Polizei View Post
Isn't that what voting is?

Or are you implying we don't need a system where citizens express themselves at the polls. Instead, we'd be much better off relying on a few judges, who are politically inclined, to run our lives and determine what is equal/moral.
The civil rights parallels are so obvious it makes my head spin. Yet, here were are again...
Draven is offline  
Old 06-27-13, 04:47 AM
  #754  
Banned
 
Join Date: Feb 2002
Posts: 21,582
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Draven View Post
The civil rights parallels are so obvious it makes my head spin. Yet, here were are again...
Max Von Sydow is available.
creekdipper is offline  
Old 06-27-13, 07:43 AM
  #755  
DVD Talk Legend
 
Join Date: Nov 2000
Location: frass canyon
Posts: 16,249
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
As soon as one of those laws is challenged in court if the Governor and Attorney General don't like that law, or if that law conflicts with their own political agendas, or if that law threatens their power base, then all they have to do is not defend it and it will be nullified in court as there would be no one of standing defending that law. Even if the law is beneficial (like Prop 13, for example) if someone challenges it on even the flimsiest of legal grounds, as long as there is a shred of legal reasoning that would be enough to hold it over for a hearing, that law will be overturned in court as there would be no defense.
I thought that the government did defend Prop 8 in CA Supreme Court and lost. They declined to appeal, but another group did. SCOTUS says that the new group didn't have standing to appeal. I think that means it gets bumped back down to before the appeal, not all the way back to election day.

I don't think a proposition needs a shred of legal reasoning enough to hold it over for just a hearing, it would still need enough legal reasoning to win at the state supreme court level.

If the government had declined to defend the proposition at the first level, I'd think that would bump things back to election day results, although that could create an entire cycle of crap if the government was that gung-ho about not defending it.
RoyalTea is offline  
Old 06-27-13, 08:16 AM
  #756  
DVD Talk God
Thread Starter
 
Join Date: Feb 2000
Location: Directionally Challenged (for DirecTV)
Posts: 122,784
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by kvrdave View Post
Red Dog - your analysis leaves me more jaded about the court system and that is not easy to do. It essentially comes down to, "Here is what I want the law to be, now how to I put together some half assed reasoning to justify it, even if it is easily seen through?"
This is nothing new, at least at the highest level. That's the way it's been for the SCt for years and I and others have expressed that here for years. The judges work backwards on most cases. There's some cases where they can be swayed by the arguments (by the lawyers or other Justices), but that's the exception rather than the rule. So I don't know why you're anymore jaded than before. Unless you weren't paying attention.


Or are you implying we don't need a system where citizens express themselves at the polls. Instead, we'd be much better off relying on a few judges, who are politically inclined, to run our lives and determine what is equal/moral.
So I assume you think Brown was wrongly decided? Loving?

I don't see what necessitates public referenda. What it usually results in nowadays is a barrage of commercials that distort the issue from both sides so it simply turns out to be a vote based on ignorance. I say leave it to the legislature.

Last edited by Red Dog; 06-27-13 at 08:28 AM.
Red Dog is offline  
Old 06-27-13, 08:20 AM
  #757  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by RoyalTea View Post
I thought that the government did defend Prop 8 in CA Supreme Court and lost. They declined to appeal, but another group did. SCOTUS says that the new group didn't have standing to appeal. I think that means it gets bumped back down to before the appeal, not all the way back to election day.
I don't think it was the Attorney General's office that defended Prop 8. I'm pretty sure that it was the same group that defended it on appeal.
B5Erik is offline  
Old 06-27-13, 08:26 AM
  #758  
DVD Talk God
Thread Starter
 
Join Date: Feb 2000
Location: Directionally Challenged (for DirecTV)
Posts: 122,784
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
I don't think it was the Attorney General's office that defended Prop 8. I'm pretty sure that it was the same group that defended it on appeal.
That's correct. The initiative's official proponents defended it at the bench trial and they appealed.

I haven't read Perry (frankly, standing questions bore me), but that is an interesting point you brought up earlier.

And I like I said earlier, in the standing question in Windsor, I was intrigued by Alito's argument that when the Executive declines to defend a federal law in court, the legislature may do so. Unfortunately, that doesn't help in the CA situation when you have the people directly passing/enacting the law rather than the legislature/executive.
Red Dog is offline  
Old 06-27-13, 08:27 AM
  #759  
DVD Talk Legend
 
Join Date: Nov 2000
Location: frass canyon
Posts: 16,249
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
I don't think it was the Attorney General's office that defended Prop 8. I'm pretty sure that it was the same group that defended it on appeal.
http://en.wikipedia.org/wiki/Strauss_v._Horton

As the respondents in these cases were the State of California and some of its officials in their official capacity, California Attorney General Jerry Brown and his office were the primary individuals charged with responding to the lawsuit. Other respondents include Mark B. Horton of the State Registrar of Vital Statistics and Linette Scott of the California Department of Public Health.


Horton was a government official, not a member of the protectmarriage.com website.
RoyalTea is offline  
Old 06-27-13, 08:36 AM
  #760  
DVD Talk God
Thread Starter
 
Join Date: Feb 2000
Location: Directionally Challenged (for DirecTV)
Posts: 122,784
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by RoyalTea View Post
http://en.wikipedia.org/wiki/Strauss_v._Horton

As the respondents in these cases were the State of California and some of its officials in their official capacity, California Attorney General Jerry Brown and his office were the primary individuals charged with responding to the lawsuit. Other respondents include Mark B. Horton of the State Registrar of Vital Statistics and Linette Scott of the California Department of Public Health.


Horton was a government official, not a member of the protectmarriage.com website.
Except that's not the case. That was a case that involved a procedural challenge to the amendment that resulted from the ballot initiative.

Go directly to the Perry opinion:

Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 underthe Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec. Code Ann. §342 (West 2003)—to intervene to defend it. After a 12-day benchtrial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the California officialsnamed as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal. 2010).
Red Dog is offline  
Old 06-27-13, 08:39 AM
  #761  
DVD Talk Hall of Fame
 
BearFan's Avatar
 
Join Date: Mar 1999
Location: Flower Mound, TX
Posts: 8,026
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post

That's just wrong. The people should have the right to defend their laws if their public officials refuse to do their constitutional duty. Let the courts decide the constitutionality of the laws, not who can defend the laws.
That is my main problem with this. California has a (sometimes jacked up) way of creating laws. It is up to the state to defend them to the fullest. If the elected officials do not like the law, there are ways to change it ... but they should defend it to their fullest. I do not really see it as different than a defense attorney defending a client to the fullest that he/she is pretty sure is guilty as hell.

It is their duty that they need to perform. It seems that there is a danger that anytime there is a change in administration, the incoming can effectively kill a state law going to SCOTUS by simply stepping out of the way.

I am happy Prop 8 no longer exists, but the way it happened might be worse than letting the law stand.
BearFan is offline  
Old 06-27-13, 08:41 AM
  #762  
DVD Talk Legend
 
Join Date: Nov 2000
Location: frass canyon
Posts: 16,249
Re: Supreme Court -- 2011 and beyond discussion

For some reason, I thought that Prop 8 passed, the CA Supreme court overruled it, and from there it went to appeals and then to SCOTUS. I don't know where I read that.

Prop 8 passed, CA Supreme Court said Prop 8 is valid, but so are marriages performed before Prop 8. if SCOTUS says no standing in 9th circuit, so things should revert to where there were before appeals, no? Prop 8 is valid, but marriages before Prop 8 still count. Why is the result of Strass v. Horton rendered invalid as well?
RoyalTea is offline  
Old 06-27-13, 08:49 AM
  #763  
DVD Talk God
Thread Starter
 
Join Date: Feb 2000
Location: Directionally Challenged (for DirecTV)
Posts: 122,784
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by RoyalTea View Post
For some reason, I thought that Prop 8 passed, the CA Supreme court overruled it, and from there it went to appeals and then to SCOTUS. I don't know where I read that.

Prop 8 passed, CA Supreme Court said Prop 8 is valid, but so are marriages performed before Prop 8. if SCOTUS says no standing in 9th circuit, so things should revert to where there were before appeals, no? Prop 8 is valid, but marriages before Prop 8 still count.
Read Perry - the history of the litigation after Prop. 8 is all in there.

Perry is a distinct case, coming after Strauss, with a different cause of action and was brought in federal court.
Red Dog is offline  
Old 06-27-13, 11:41 PM
  #764  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by BearFan View Post
That is my main problem with this. California has a (sometimes jacked up) way of creating laws. It is up to the state to defend them to the fullest. If the elected officials do not like the law, there are ways to change it ... but they should defend it to their fullest. I do not really see it as different than a defense attorney defending a client to the fullest that he/she is pretty sure is guilty as hell.

It is their duty that they need to perform. It seems that there is a danger that anytime there is a change in administration, the incoming can effectively kill a state law going to SCOTUS by simply stepping out of the way.

I am happy Prop 8 no longer exists, but the way it happened might be worse than letting the law stand.
The way they got rid of Prop 8 is going to have a nightmarish effect long term for everyone in the whole country - but especially in California.

There is no one to stop the Democrats in Sucramento. They've run the state into the ground, gerrymandered Assembly and Senate districts to ensure their perpetual majority in the legislature, and now they don't have to answer to the people in any way. If the people try to overrule or go around the legislature said legislators just have their financial backers challenge the passed ballot initiative in court and their willing accomplices in the Executive branch just refuse to defend the law and it is automatically overturned.

The rights of the people have just been WAY more infringed than gays rights were. Now our votes on ballot initiatives mean nothing if the powers that be in Sucramento don't like the way we vote. We have, in essence, lost the right to vote. Democracy is, essentially, dead in California. One party rule with no constraints, restraints, or consequences. And no means to overturn their corruption. The people have no power in California anymore thanks to the SCOTUS.
B5Erik is offline  
Old 06-28-13, 07:26 AM
  #765  
DVD Talk Legend
 
Join Date: Nov 2000
Location: frass canyon
Posts: 16,249
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
The way they got rid of Prop 8 is going to have a nightmarish effect long term for everyone in the whole country - but especially in California.

There is no one to stop the Democrats in Sucramento. They've run the state into the ground, gerrymandered Assembly and Senate districts to ensure their perpetual majority in the legislature, and now they don't have to answer to the people in any way. If the people try to overrule or go around the legislature said legislators just have their financial backers challenge the passed ballot initiative in court and their willing accomplices in the Executive branch just refuse to defend the law and it is automatically overturned.

The rights of the people have just been WAY more infringed than gays rights were. Now our votes on ballot initiatives mean nothing if the powers that be in Sucramento don't like the way we vote. We have, in essence, lost the right to vote. Democracy is, essentially, dead in California. One party rule with no constraints, restraints, or consequences. And no means to overturn their corruption. The people have no power in California anymore thanks to the SCOTUS.
Is that really true? Aren't the standards for a recall election in CA pretty low? If the governor chooses to let a proposition passed by a majority of voters die simply by not doing his job to defend it, recall him/her.

Or does this ruling say that if a governor is recalled, and he doesn't defend himself, he still gets to be governor?
RoyalTea is offline  
Old 06-28-13, 08:32 AM
  #766  
Psi
DVD Talk Hall of Fame
 
Psi's Avatar
 
Join Date: Jan 2000
Location: Texas
Posts: 9,202
Re: Supreme Court -- 2011 and beyond discussion

Prop 8 was overturned by a District Court, and that ruling was affirmed by the Ninth Circuit court. It's not like it it was dumped only because the State refused to defend it.
Psi is offline  
Old 06-28-13, 07:38 PM
  #767  
DVD Talk Legend
 
Join Date: Apr 2003
Location: Land of the Lobstrosities
Posts: 10,300
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Red Dog View Post
This is nothing new, at least at the highest level. That's the way it's been for the SCt for years and I and others have expressed that here for years. The judges work backwards on most cases. There's some cases where they can be swayed by the arguments (by the lawyers or other Justices), but that's the exception rather than the rule. So I don't know why you're anymore jaded than before. Unless you weren't paying attention.
This is why I found this article amusing: http://www.nytimes.com/2013/06/28/us...anted=all&_r=0

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.
It paints Roberts as a Machiavellian manipulator, tricking the liberal justices into compromises with legal rationals that he later uses against them. But to this I have to ask:To what purpose? The article cites the recent VRA decision and Citizens United as products of legal seeds Roberts planted years earlier, but both of those were 5-4 decisions and none of the liberal justices which signed on to Roberts' earlier opinions hesitated in the slightest to abandon his reasoning when it worked against their desired outcome.
wmansir is offline  
Old 06-28-13, 08:01 PM
  #768  
DVD Talk Legend
 
Join Date: Mar 2001
Location: Lompoc, CA
Posts: 11,460
Re: Supreme Court -- 2011 and beyond discussion

California: No 25 or 30 day delay. The "stay" was lifted a few hours back, clerks given the go-ahead, and the lady-couple litigants were just (re?)married at SF City Hall.
adamblast is offline  
Old 06-28-13, 08:31 PM
  #769  
DVD Talk Platinum Edition
 
Join Date: May 2001
Posts: 3,319
Re: Supreme Court -- 2011 and beyond discussion

California divorce lawyers are rejoicing as the client pool just got larger.
WCChiCubsFan is offline  
Old 06-28-13, 08:37 PM
  #770  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

The far left leaning L.A. Times ran a story about what I was talking about...

http://www.latimes.com/news/local/la...,3117108.story

If a paper that leans that far left is willing to run this story (a story that goes against the best interests of the party that they openly campaign for) you know this is a serious issue.
B5Erik is offline  
Old 06-28-13, 08:48 PM
  #771  
DVD Talk Platinum Edition
 
Join Date: May 2001
Posts: 3,319
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
?..The rights of the people have just been WAY more infringed than gays rights were. Now our votes on ballot initiatives mean nothing if the powers that be in Sucramento don't like the way we vote. We have, in essence, lost the right to vote. Democracy is, essentially, dead in California. One party rule with no constraints, restraints, or consequences. And no means to overturn their corruption. The people have no power in California anymore thanks to the SCOTUS.
This is so inaccurate it is ridiculous.

Democracy is alive and well in California but what the poster doesn't seem to understand is that ballot initiatives are just like any legislation passed by the legislators, if it is deemed unconstitutional by the courts it will be thrown out.

The fact that the governor didn't waste tax payer money fighting to save an unconstitutional initiative had no influence on the final out come because the lower court had already ruled on the constitutionality of Prop 8.
WCChiCubsFan is offline  
Old 06-28-13, 10:00 PM
  #772  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by WCChiCubsFan View Post
This is so inaccurate it is ridiculous.

Democracy is alive and well in California but what the poster doesn't seem to understand is that ballot initiatives are just like any legislation passed by the legislators, if it is deemed unconstitutional by the courts it will be thrown out.

The fact that the governor didn't waste tax payer money fighting to save an unconstitutional initiative had no influence on the final out come because the lower court had already ruled on the constitutionality of Prop 8.
One judge ruled. A judge in the lowest Federal court system. Appeals are part of the process of making and defining laws.

When a Governor and Attorney General have the ability to create a legislative veto by NOT defending a law because it runs counter to their personal beliefs or counter to their best interests there is a HUGE problem.

Read the L.A. Times piece. That's an understatement, watering down the problem (as it is a left leaning paper), but even they report that this is a significant issue.

And, by the way, the Attorney General of Calfornia is consitutionally bound to defend ALL laws of the state. Let the courts (higher courts) decide what is and what isn't constitutional. Abuse of power is never a good thing, but that is what the SCOTUS just set in motion - the ability to abuse power and veto the will of the people (even if the will of the people IS constitutional, if the Attorney General doesn't defend the law it goes down in court now).
B5Erik is offline  
Old 06-28-13, 10:15 PM
  #773  
Psi
DVD Talk Hall of Fame
 
Psi's Avatar
 
Join Date: Jan 2000
Location: Texas
Posts: 9,202
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by B5Erik View Post
One judge ruled. A judge in the lowest Federal court system. Appeals are part of the process of making and defining laws.
The Ninth Circuit is not a low court.
Psi is offline  
Old 06-28-13, 10:21 PM
  #774  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by WCChiCubsFan View Post
Democracy is alive and well in California...
Really? It's one party rule with gerrymandered Assembly and Senate districts that will keep the Democrats in a 2/3 majority in perpetuity, every statewide office is held by Democrats, and the Democrats can - and will - now nullify any law passed by the people that goes against their political positions or against their best interests. The Democrats are funded by the public workers' unions, and they do those unions' bidding because the unions have the money to defeat the Republicans in every meaningful election.

Absolute power rests with THE PARTY. There is no other party. That is not democracy.
B5Erik is offline  
Old 06-28-13, 10:25 PM
  #775  
DVD Talk Hall of Fame
 
B5Erik's Avatar
 
Join Date: Oct 2000
Location: Southern California
Posts: 8,960
Re: Supreme Court -- 2011 and beyond discussion

Originally Posted by Psi View Post
The Ninth Circuit is not a low court.
That was not the first case if I'm not mistaken. It was initally a single district court judge that ruled against Prop 8.

The appeals all had to be brought by the supporters of Prop 8, and it was those appeals that were nullified by the SCOTUS because they ruled that the supporters of the law had no standing to defend it. The only party that is allowed to defend a state law is an official representative appointed by the state to defend that law. That is what the SCOTUS ruling said.

So all the Democrats in Sucramento have to do to nullify a law passed by the people is to allow the legal challenge to go ahead without a defense of said law. That law will immediately be overturned because there will be no defense. That's what the law scholars are saying, and as their job is to teach the law I'll accept that as accurate.

Last edited by B5Erik; 06-28-13 at 10:31 PM.
B5Erik is offline  

Thread Tools
Search this Thread

Archive Advertising Cookie Policy Privacy Statement Terms of Service

Copyright © 2018 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.