3 ms·

> Whether that's originalism at the Supreme Court, or States rights. You do have to ask the question "If I prove this argument to be wrong, will it actually cha

> Whether that's originalism at the Supreme Court, or States rights. You do have to ask the question "If I prove this argument to be wrong, will it actually change the outcome that the opponent is advocating, or will they just move to another argument". You make it seem like originalism is not a deeply held and staunchly argued principle, as if judges capriciously move into it and out of it depending on the wind or current political thinking. Is that the impression you got from Scalia[1]? If you did I'd say that's weird, he seemed pretty steadfast on it for a good long time. [1] https://en.wikipedia.org/wiki/Antonin_Scalia https://en.wikipedia.org/wiki/Antonin_Scalia

SilverBirch 4y ago
I'm making the opposite point: That there is a genuine and intellectual argument for originalism. But it has nothing to do with the Supreme Court's current decision making process which is "Do we have 5 suitably Conservative Supreme Court Justices? Yes or No?". Which is why in the Dobbs decision Thomas rightly points out that the next thing to do is revisit Contraceptives, Same sex marriage, and Gay sex. And why Roberts makes another concurrence literally saying he also wants to ban abortion, but just doesn't see the need to overturn Roe to do that. The problem is that the arguments they make support their position, but they don't support their own arguments when it doesn't result in supporting their position.
- brigandish 4y ago
  > And why Roberts makes another concurrence literally saying he also wants to ban abortion, but just doesn't see the need to overturn Roe to do that. I've read the actual concurrence[1] and I have no idea how you can describe it that way, other than to have read someone else's summary of it, a summary that is at best poor, at worst mendacious. > Which is why in the Dobbs decision Thomas rightly points out that the next thing to do is revisit Contraceptives, Same sex marriage, and Gay sex. Thomas mentions contraceptives once, on page 122, and does not "point out that the next thing to do is revisit Contraceptives". Should I bother to see what he actually wrote about same sex marriage and gay sex? I think it would be better if you provided the source of your claims here and cross reference them against the text of the ruling. I'd also like you to go over this: > the Supreme Court's current decision making process which is "Do we have 5 suitably Conservative Supreme Court Justices? Yes or No?" They don't bring the cases. They choose the cases from those they are brought but they have also regularly chosen cases that invoke Roe or Casey, before and after the conservative majority. Did you mean something else? [1] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
  - SilverBirch 4y ago
    Sorry, I simplified this because I thought people would appreciate having the reference to the actual principles behind the cases rather than literally just naming random names that happen to be the plaintiffs in the precedent setting case. To be specific, we're talking about substantive due process as referenced on page 43 of the decision. As an aside - it's making the quite whimsical statement that abortion isn't deeply rooted in the nations history - literally comical. But moving on, Thomas goes on to clarify on page 118 that he believes that that entire phrase is an oxymoron, implying that no ruling based on it should be upheld. As you point out he literally name drops contraceptives when abandoning entire swathes of court precedent. > Should I bother to see what he actually wrote about same sex marriage and gay sex? No you absolutely shouldn't bother it's definitely not there. I'll hold my hands up, I just got to the word contraceptives and just made the rest up. Let's read what it really says: > Cases like Griswold v. Connecticut, Cite as: 597 U. S. ____ (2022) 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. Oh that's right that thing you say you couldn't find and I must have made up, is in fact in the same sentence that you pointed me to. Which brings me back to my original point - which was to quote the actual details of the cases, not the names of the plaintiffs. >They don't bring the cases. They choose the cases from those they are brought but they have also regularly chosen cases that invoke Roe or Casey, before and after the conservative majority. Just to be clear, the replacement for RBJ was in place about 18 months ago and since then a number of clearly Roe-breaching laws were passed and then progressively handed up through the courts to get this decision. It has been as direct and immediate as it could possibly have been.
    - brigandish 4y ago
      That would've read better if you'd tried to respond to what I actually wrote instead of letting your tribal instincts get the better of you. > Oh that's right that thing you say you couldn't find and I must have made up, is in fact in the same sentence that you pointed me to. I didn't say I couldn't find it, you've pointed to a different sentence (I referenced page 122, the quote you've given is from page 118, that would be a loooong sentence), so why are you writing that? Yes, you seem to be making things up or reading things second hand that distort the actual text that I've given you a link to. So, take a breath, read what I wrote again and respond to that, and try it with the attitude of charity[1] and (the buzzword of the moment) good faith, because I'm not really that interested in whether American women can get abortions or not as I'm not American nor a woman. Mindless tribalism isn't going to lead to a good conversation. I am interested in the law (mainly English common law and its derivatices), and people making claims that will stand up to scrutiny. Yours, thus far, do not. [1] https://en.wikipedia.org/wiki/Principle_of_charity https://en.wikipedia.org/wiki/Principle_of_charity

SilverBirch 4y ago

I'm making the opposite point: That there is a genuine and intellectual argument for originalism. But it has nothing to do with the Supreme Court's current decision making process which is "Do we have 5 suitably Conservative Supreme Court Justices? Yes or No?". Which is why in the Dobbs decision Thomas rightly points out that the next thing to do is revisit Contraceptives, Same sex marriage, and Gay sex. And why Roberts makes another concurrence literally saying he also wants to ban abortion, but just doesn't see the need to overturn Roe to do that. The problem is that the arguments they make support their position, but they don't support their own arguments when it doesn't result in supporting their position.

brigandish 4y ago
> And why Roberts makes another concurrence literally saying he also wants to ban abortion, but just doesn't see the need to overturn Roe to do that. I've read the actual concurrence[1] and I have no idea how you can describe it that way, other than to have read someone else's summary of it, a summary that is at best poor, at worst mendacious. > Which is why in the Dobbs decision Thomas rightly points out that the next thing to do is revisit Contraceptives, Same sex marriage, and Gay sex. Thomas mentions contraceptives once, on page 122, and does not "point out that the next thing to do is revisit Contraceptives". Should I bother to see what he actually wrote about same sex marriage and gay sex? I think it would be better if you provided the source of your claims here and cross reference them against the text of the ruling. I'd also like you to go over this: > the Supreme Court's current decision making process which is "Do we have 5 suitably Conservative Supreme Court Justices? Yes or No?" They don't bring the cases. They choose the cases from those they are brought but they have also regularly chosen cases that invoke Roe or Casey, before and after the conservative majority. Did you mean something else? [1] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
- SilverBirch 4y ago
  Sorry, I simplified this because I thought people would appreciate having the reference to the actual principles behind the cases rather than literally just naming random names that happen to be the plaintiffs in the precedent setting case. To be specific, we're talking about substantive due process as referenced on page 43 of the decision. As an aside - it's making the quite whimsical statement that abortion isn't deeply rooted in the nations history - literally comical. But moving on, Thomas goes on to clarify on page 118 that he believes that that entire phrase is an oxymoron, implying that no ruling based on it should be upheld. As you point out he literally name drops contraceptives when abandoning entire swathes of court precedent. > Should I bother to see what he actually wrote about same sex marriage and gay sex? No you absolutely shouldn't bother it's definitely not there. I'll hold my hands up, I just got to the word contraceptives and just made the rest up. Let's read what it really says: > Cases like Griswold v. Connecticut, Cite as: 597 U. S. ____ (2022) 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. Oh that's right that thing you say you couldn't find and I must have made up, is in fact in the same sentence that you pointed me to. Which brings me back to my original point - which was to quote the actual details of the cases, not the names of the plaintiffs. >They don't bring the cases. They choose the cases from those they are brought but they have also regularly chosen cases that invoke Roe or Casey, before and after the conservative majority. Just to be clear, the replacement for RBJ was in place about 18 months ago and since then a number of clearly Roe-breaching laws were passed and then progressively handed up through the courts to get this decision. It has been as direct and immediate as it could possibly have been.
  - brigandish 4y ago
    That would've read better if you'd tried to respond to what I actually wrote instead of letting your tribal instincts get the better of you. > Oh that's right that thing you say you couldn't find and I must have made up, is in fact in the same sentence that you pointed me to. I didn't say I couldn't find it, you've pointed to a different sentence (I referenced page 122, the quote you've given is from page 118, that would be a loooong sentence), so why are you writing that? Yes, you seem to be making things up or reading things second hand that distort the actual text that I've given you a link to. So, take a breath, read what I wrote again and respond to that, and try it with the attitude of charity[1] and (the buzzword of the moment) good faith, because I'm not really that interested in whether American women can get abortions or not as I'm not American nor a woman. Mindless tribalism isn't going to lead to a good conversation. I am interested in the law (mainly English common law and its derivatices), and people making claims that will stand up to scrutiny. Yours, thus far, do not. [1] https://en.wikipedia.org/wiki/Principle_of_charity https://en.wikipedia.org/wiki/Principle_of_charity