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Interesting quote. I'm not a lawyer, but my understanding is that, really, there is nothing Congress can do about a SCOTUS decision such as Roe v Wade just by

by graycat 11y ago

Interesting quote. I'm not a lawyer, but my understanding is that, really, there is nothing Congress can do about a SCOTUS decision such as Roe v Wade just by passing a law and getting the POTUS to sign it. And should a US state pass a law against abortion, the legal system would instantly use Roe v Wade to strike down that state law. If all that is so, then the only way to make abortion illegal is to reverse Roe v Wade, and there are only two ways to do that, (A) have another case brought to the SCOTUS and accepted for review by the SCOTUS and with enough new justices to reverse Roe v Wade and (B) have a Constitutional amendment with, as I mentioned, 2/3rds of the House, .... IMHO, the chances of either (A) or (B) within 100 years look slim to none. If all that is correct, then talking about laws against abortion is some form of self-abuse or manipulation of others and less useful than a spit to windward. Again, I'm just talking about process, not the pros/cons of abortion.

hga 11y ago
I apologize for not including this in my original posting: https://en.wikipedia.org/wiki/Jurisdiction_stripping https://en.wikipedia.org/wiki/Jurisdiction_stripping It is a well established practice, and note the contemporary uses in the '90s and '00s.
- graycat 11y ago
  Interesting. That's much more detailed than covered in my eighth grade civics class! My brother did a lot in constitutional law, but I didn't, and I'm not a lawyer. So, maybe with some interpretations of jurisdiction stripping, Congress and the POTUS might pass a law saying that the SCOTUS has no jurisdiction over cases involving abortion and then pass a law making abortion illegal. Maybe. I am getting a suspicion that maybe jurisdiction stripping could not be used for that little two step dance. And, if that two step dance could be used, then, sure, it's curious why a Republican Congress would not start to take those two steps. For me, I don't know. And the OP didn't talk about such a dance step either! Mike Huckabee seems highly interested in making abortion illegal, and the OP mentioned two more candidates trying to outlaw abortion even in cases of rape and danger to the mother, but, still, I've heard them say nothing about jurisdiction stripping. Out'a my depth!
  - hga 11y ago
    And, if that two step dance could be used It can; as noted in the article, it's been used in the '90s and '00s, as well as long ago, and for things much more fundamental than a right conjured by the Supremes from the "penumbras" and "emanations" ofother parts of the Constitution (https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut). Note that ultimately the Supremes are just a group of 9 men and women (who e.g. all went to the Harvard or Yale Law Schools...). The President, Executive and the Congress can simply ignore them, impeach them, etc., they just can't cut their salaries ("The Judges ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."). then, sure, it's curious why a Republican Congress would not start to take those two steps. For me, I don't know. Curious indeed; I assume at 0th approximation that the majority of them, if not the vast majority, don't give a damn about what they were ostensibly elected to do. Or perhaps prefer not being called bad names by the rest of the establishment for doing that, in which case we're a lot closer to understanding Trump's appeal. In other words, the Supremes and lower Federal courts provide an important political function by allowing politicians in the other two branches of government to claim their hands are tied on a whole bunch of issues where they'd otherwise have to take a real stand and maybe afterwards have to spend more time with their families. Typo correction: my 9th grade civics class was in 1975, not a few years before the death of William the Conqueror ^_^.
  - Lawtonfogle 11y ago
    >And, if that two step dance could be used, then, sure, it's curious why a Republican Congress would not start to take those two steps. Outlawing it would be horrible for them because it would not only make them lose a major issue (to the voters) to run on, it would also galvanize the opposition. The baby steps met by the courts slapping their hands is the best option for showing the voters 'see, I tried, but the nasty mean courts said no, but if you vote for me again I'll give it another try'. Of course with so many voters who honestly believe in outlawing it, you will end up with some politicians who honestly want to outlaw it and not just use it to gain votes. But this group never gets large enough to change things in any significant ways.
- dragonwriter 11y ago
  > It is a well established practice, and note the contemporary uses in the '90s and '00s. The only use listed in the '00s in the linked article was an attempted use which was (as identified in the article) unsuccessful, as it was itself struck down as a violation of habeas corpus.
  - hga 11y ago
    And as I note in a sub-comment, that decision could have been ignored. I mean, if the Supreme Court ruled tomorrow that the person behind the Hacker News login name "dragonwriter" could be killed without legal consequence by anyone, would it be constitutional? Are you absolutely, positively, 100% sure you want no checks on the Federal courts besides impeachment? Perhaps read Livy's history on the period of the Decemvir's tyranny if you still say no.
    - dragonwriter 11y ago
      > And as I note in a sub-comment, that decision could have been ignored. Sure, any decision can be ignored. But then why even bother with jurisdiction stripping at all? > I mean, if the Supreme Court ruled tomorrow that the person behind the Hacker News login name "dragonwriter" could be killed without legal consequence by anyone, would it be constitutional? How is that relevant? > Are you absolutely, positively, 100% sure you want no checks on the Federal courts besides impeachment? How is that relevant? Specifically, where have I argued in support of such a proposition? Its like you have a canned rant that you are posting without any relation to the post it is in response to.
      - hga 11y ago
        Sure, any decision can be ignored. But then why even bother with jurisdiction stripping at all? Because it's an explicitly enumerated provision in the Constitution? How is [a Supreme Court decision proscribing me] relevant? To try to make the stakes clear if your end all and be all of constitutionality is what the current set of Supremes decide? Its like you have a canned rant that you are posting without any relation to the post it is in response to. We're obviously talking past each other, so I'll stop.

by graycat 11y ago

hga 11y ago

I apologize for not including this in my original posting: https://en.wikipedia.org/wiki/Jurisdiction_stripping https://en.wikipedia.org/wiki/Jurisdiction_stripping It is a well established practice, and note the contemporary uses in the '90s and '00s.

graycat 11y ago
Interesting. That's much more detailed than covered in my eighth grade civics class! My brother did a lot in constitutional law, but I didn't, and I'm not a lawyer. So, maybe with some interpretations of jurisdiction stripping, Congress and the POTUS might pass a law saying that the SCOTUS has no jurisdiction over cases involving abortion and then pass a law making abortion illegal. Maybe. I am getting a suspicion that maybe jurisdiction stripping could not be used for that little two step dance. And, if that two step dance could be used, then, sure, it's curious why a Republican Congress would not start to take those two steps. For me, I don't know. And the OP didn't talk about such a dance step either! Mike Huckabee seems highly interested in making abortion illegal, and the OP mentioned two more candidates trying to outlaw abortion even in cases of rape and danger to the mother, but, still, I've heard them say nothing about jurisdiction stripping. Out'a my depth!
- hga 11y ago
  And, if that two step dance could be used It can; as noted in the article, it's been used in the '90s and '00s, as well as long ago, and for things much more fundamental than a right conjured by the Supremes from the "penumbras" and "emanations" ofother parts of the Constitution (https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut). Note that ultimately the Supremes are just a group of 9 men and women (who e.g. all went to the Harvard or Yale Law Schools...). The President, Executive and the Congress can simply ignore them, impeach them, etc., they just can't cut their salaries ("The Judges ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."). then, sure, it's curious why a Republican Congress would not start to take those two steps. For me, I don't know. Curious indeed; I assume at 0th approximation that the majority of them, if not the vast majority, don't give a damn about what they were ostensibly elected to do. Or perhaps prefer not being called bad names by the rest of the establishment for doing that, in which case we're a lot closer to understanding Trump's appeal. In other words, the Supremes and lower Federal courts provide an important political function by allowing politicians in the other two branches of government to claim their hands are tied on a whole bunch of issues where they'd otherwise have to take a real stand and maybe afterwards have to spend more time with their families. Typo correction: my 9th grade civics class was in 1975, not a few years before the death of William the Conqueror ^_^.
- Lawtonfogle 11y ago
  >And, if that two step dance could be used, then, sure, it's curious why a Republican Congress would not start to take those two steps. Outlawing it would be horrible for them because it would not only make them lose a major issue (to the voters) to run on, it would also galvanize the opposition. The baby steps met by the courts slapping their hands is the best option for showing the voters 'see, I tried, but the nasty mean courts said no, but if you vote for me again I'll give it another try'. Of course with so many voters who honestly believe in outlawing it, you will end up with some politicians who honestly want to outlaw it and not just use it to gain votes. But this group never gets large enough to change things in any significant ways.
dragonwriter 11y ago
> It is a well established practice, and note the contemporary uses in the '90s and '00s. The only use listed in the '00s in the linked article was an attempted use which was (as identified in the article) unsuccessful, as it was itself struck down as a violation of habeas corpus.
- hga 11y ago
  And as I note in a sub-comment, that decision could have been ignored. I mean, if the Supreme Court ruled tomorrow that the person behind the Hacker News login name "dragonwriter" could be killed without legal consequence by anyone, would it be constitutional? Are you absolutely, positively, 100% sure you want no checks on the Federal courts besides impeachment? Perhaps read Livy's history on the period of the Decemvir's tyranny if you still say no.
  - dragonwriter 11y ago
    > And as I note in a sub-comment, that decision could have been ignored. Sure, any decision can be ignored. But then why even bother with jurisdiction stripping at all? > I mean, if the Supreme Court ruled tomorrow that the person behind the Hacker News login name "dragonwriter" could be killed without legal consequence by anyone, would it be constitutional? How is that relevant? > Are you absolutely, positively, 100% sure you want no checks on the Federal courts besides impeachment? How is that relevant? Specifically, where have I argued in support of such a proposition? Its like you have a canned rant that you are posting without any relation to the post it is in response to.
    - hga 11y ago
      Sure, any decision can be ignored. But then why even bother with jurisdiction stripping at all? Because it's an explicitly enumerated provision in the Constitution? How is [a Supreme Court decision proscribing me] relevant? To try to make the stakes clear if your end all and be all of constitutionality is what the current set of Supremes decide? Its like you have a canned rant that you are posting without any relation to the post it is in response to. We're obviously talking past each other, so I'll stop.