6 ms·

Did you read the first two sentences? CA is doing something very common, which is to try to prompt a SCOTUS decision on a controversy. In this case, they're t

by smt88 4y ago

Did you read the first two sentences? CA is doing something very common, which is to try to prompt a SCOTUS decision on a controversy. In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too. This is exactly the outcome CA wanted, which is why Newsom said as much and celebrated it.

isaacfrond 4y ago
Yeah, I did read it. I see what they try do. I just don't believe it will work. This judge rejected an anti gun law. Next-up: scotus will reject certiorari Even in the unlikely event that it will end up on the scotus calendar, scotus will no doubt find it much easier to defend a constitutional right to bear arms, then to reject abortion, which for better or worse, is not mentioned in the constitution. Besides this court has ruled against precedent many times now. I don't see why this stunt would make a difference. (see e.g.: https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941 https://theconversation.com/the-supreme-court-has-overturned...) Bottomline, I'll expect this to further women's right only indirectly by serving as publicity for Newsom
- tiahura 4y ago
  - torstenvl 4y ago
    The OP has nothing to do with Weinstein. Perhaps you were mistaken about what you were replying to? In any case: (a) Harvey Weinstein was convicted of three counts, including rape. (b) A lack of a conviction absolutely does not mean that the allegation didn't happen. It isn't an either-or that the jury decides between. The only thing they decide is whether it was proven beyond a reasonable doubt. Viewing it otherwise is dangerous, because it leads people to decide criminal cases based on which version they think is more likely, effectively transforming the criminal justice system to use a "preponderance of the evidence" standard.
- matthewdgreen 4y ago
  The principle that people would like to defend is the idea that states can’t simply find end-runs around something that is (under then-current Supreme Court precedent) a constitutionally-protected activity. This is what the Court did with its finding on the Texas law. You are correct that the Court has many ways to avoid providing a clear, consistent ruling that grounds its recent decisions in principle. But even this isn’t necessarily a bad thing: by doing so, the Court very clearly signals that it cannot be trusted to consistently enforce any legal principle, which is good support for the alternative solution: use the political and legislative process to remedy the situation.
  - makomk 4y ago
    I don't think the Supreme Court actually ever ended up ruling on whether the Texas law's attempts to do an end-run around constitutional protections were allowed; Roe v. Wade was overturned entirely before that ever had a chance to come up. They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-emptively sue the judges and clerks that would've been tasked with enforcing the law but given how fundamental not allowing that is to the functioning of the legal system that's no surprise.
    - matthewdgreen 4y ago
      >They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre- What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy. I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
      - 4y ago
mjfl 4y ago
'shall not be infringed' will make a difference.
- feet 4y ago
  How about "well regulated militia"?
  - MockObject 4y ago
    Heller 2008 explains how the Court interprets that.
    - blakesterz 4y ago
      I feel like that's a good thing to know, I never knew that until now: In Heller, the U.S. Supreme Court answered a long-standing constitutional question about whether the right to “keep and bear arms” is an individual right unconnected to service in the militia or a collective right that applies only to state-regulated militias. https://www.cga.ct.gov/2008/rpt/2008-r-0578.htm https://www.cga.ct.gov/2008/rpt/2008-r-0578.htm
      - deleted 4y ago
        [deleted]
    - whoknew1122 4y ago
      Many court cases interpret or discard wording to make whatever ruling they want. For example, the blatant disregard of the 9th amendment when it comes to privacy and health care decisions. Heller explains how a Court interpreted (and disregarded) the militia clause. All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe.
      - TMWNN 4y ago
        >All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe. Ah yes, yet another attempt to redefine court packing as "naming a judge I don't like", as opposed to what FDR actually tried (and failed) to do.
lesuorac 4y ago
> In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too No, they'll just find some other area of the law that is unconstitutional such that CA stays down and TX stays up. Similar to how on death row you're required to get a Priest (Christian) but not an Imam (Muslim). For the Imam case they ruled that the guy waited to long to sue but obviously the guy can't sue before his request has been denied and then actually writing a lawsuit takes time [1]. [1]: https://www.vox.com/22279878/supreme-court-death-penalty-religious-liberty-dunn-ray-smith-elena-kagan-amy-coney-barrett https://www.vox.com/22279878/supreme-court-death-penalty-rel...
Rebelgecko 4y ago
I doubt Newsom will actually get the Supreme Court to rule on the case, or that he'll even try to appeal. And even if he does there's substantial differences between the laws so there's room for the courts to say the constitutionality isn't 1:1. And in the mean time, I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points. I guess it's a good gig for those expert witnesses making $600/hr, and the plaintiff's attorney who was worried about having to empty out his 401(k) if they lost.
- smt88 4y ago
  > I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone. Texas's law, on the other hand, is actively harming people now, and this harmless California law is an attempt to help them (and fix a potential loophole in the Constitution).
  - Rebelgecko 4y ago
    >Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone. I don't see how you can say that the right was never chilled, as far as I know there's no way to determine how many lawsuits weren't filed because the potential plaintiffs and their lawyers were afraid of losing their homes due to the fee shifting provision, even if they filed a successful lawsuit. On top of the difficulty of proving a negative, it turns out there actually are instances of people whose rights are being harmed by this law. There are quite a few court cases that were put on hold while the constitutionality of this part of the law was determined. When it comes to civil rights, I'm in the camp of "a right delayed is a right denied". Every single person whose civil rights lawsuit was put on hold or stayed pending the outcome of this ruling was harmed by it. On top of that, there's clear evidence that 1021.11 was used to harm people. The judge calls some of these instances out in his ruling (e.g. the Abrera and Defense Distributed cases).
  - 4y ago
philwelch 4y ago
It’s interesting though. The TX law was one of many attempts to find some loophole in Roe v. Wade that might survive long enough to get SCOTUS to reconsider Roe. When Roe was overturned in an unrelated case, a conventional abortion ban came into effect in TX. In other words, SCOTUS isn’t going to end up making abortion legal in TX even if they uphold this precedent, because TX simultaneously has the kind of law that was already upheld in Dobbs.
s1artibartfast 4y ago
>In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too. I dont think that is true. The SCOTUS didn't rule on the constitutionality of Texas's citizen enforcement. >The U.S. Supreme Court's ruling in Whole Woman's Health v. Jackson, leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law.[1] https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woman's_Health_v._Jackson https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woma...
- dragonwriter 4y ago
  > > In this case, they’re trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too. > I dont think that is true. It was approximately true when the law was adopted, before Roe was struck down. Specifically, they were trying to present a situation where the Court would either be forced to rule that the mechanism the Texas law used to try to avoid federal court review of the substance by calling it something other than state action would be ruled as not serving that purpose, or states would be free to do whatever they want by the same method, including things that judges that preferred avoiding reaching the merits of the Texas case given Roe would not approve of. With Roe overturned, that fork no longer works to protect abortion rights, but that was the (fairly overt) purpose of the law. And it still works on other things, and other states have either adopted or discussed using the Texas mode to attack other rights which remain federally protected that California would have the same issue with by the same means Texas used on abortion, so the basic concern is still active even if the particular issue is less so.
  - s1artibartfast 4y ago
    I think my point was that California's attempt was Dead on Arrival from a strategic perspective because it required its opponents to seek preemptive relief to force the SCOTUS to apply the law equally (or expose hypocrisy) . This is something that the opponents could simply sidestep by not challenging it preemptively, and waiting to challenge it later. The California Strategy only makes sense from the PR perspective because so many people erroneously believe that the SB8 ruling found the law constitutional, when in fact the actual ruling was that constitutional challenges needed to proceed at a later date. With that said, I do believe citizen enforcement is problematic in both cases, as well as the less discussed precedent of environmental regulations.
adamredwoods 4y ago
Clever, reminds me of The Onion's Anthony Novak's amicus: https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...
ellisv 4y ago
> which is to try to prompt a SCOTUS decision on a controversy. Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so.
- smt88 4y ago
  > Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so. Very possible. The court is essentially an imperial force now, as some spectators have said. It's worth a try, at least.
  - TMWNN 4y ago
    >Very possible. The court is essentially an imperial force now, as some spectators have said. Oh, good grief. "4 justices have to agree to hear the case" = granting certiori, as said elsewhere in this thread. It is the completely normal and usual way of the court deciding whether to hear a case at all. I know that you got the "imperial" adjective from breathless recent media, but if you don't know even the basics of how the court works, refrain from commenting.

by smt88 4y ago

isaacfrond 4y ago

Yeah, I did read it. I see what they try do. I just don't believe it will work. This judge rejected an anti gun law. Next-up: scotus will reject certiorari Even in the unlikely event that it will end up on the scotus calendar, scotus will no doubt find it much easier to defend a constitutional right to bear arms, then to reject abortion, which for better or worse, is not mentioned in the constitution. Besides this court has ruled against precedent many times now. I don't see why this stunt would make a difference. (see e.g.: https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941 https://theconversation.com/the-supreme-court-has-overturned...) Bottomline, I'll expect this to further women's right only indirectly by serving as publicity for Newsom

tiahura 4y ago
- torstenvl 4y ago
  The OP has nothing to do with Weinstein. Perhaps you were mistaken about what you were replying to? In any case: (a) Harvey Weinstein was convicted of three counts, including rape. (b) A lack of a conviction absolutely does not mean that the allegation didn't happen. It isn't an either-or that the jury decides between. The only thing they decide is whether it was proven beyond a reasonable doubt. Viewing it otherwise is dangerous, because it leads people to decide criminal cases based on which version they think is more likely, effectively transforming the criminal justice system to use a "preponderance of the evidence" standard.
matthewdgreen 4y ago
The principle that people would like to defend is the idea that states can’t simply find end-runs around something that is (under then-current Supreme Court precedent) a constitutionally-protected activity. This is what the Court did with its finding on the Texas law. You are correct that the Court has many ways to avoid providing a clear, consistent ruling that grounds its recent decisions in principle. But even this isn’t necessarily a bad thing: by doing so, the Court very clearly signals that it cannot be trusted to consistently enforce any legal principle, which is good support for the alternative solution: use the political and legislative process to remedy the situation.
- makomk 4y ago
  I don't think the Supreme Court actually ever ended up ruling on whether the Texas law's attempts to do an end-run around constitutional protections were allowed; Roe v. Wade was overturned entirely before that ever had a chance to come up. They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-emptively sue the judges and clerks that would've been tasked with enforcing the law but given how fundamental not allowing that is to the functioning of the legal system that's no surprise.
  - matthewdgreen 4y ago
    >They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre- What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy. I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
    - 4y ago

mjfl 4y ago

'shall not be infringed' will make a difference.

feet 4y ago
How about "well regulated militia"?
- MockObject 4y ago
  Heller 2008 explains how the Court interprets that.
  - blakesterz 4y ago
    I feel like that's a good thing to know, I never knew that until now: In Heller, the U.S. Supreme Court answered a long-standing constitutional question about whether the right to “keep and bear arms” is an individual right unconnected to service in the militia or a collective right that applies only to state-regulated militias. https://www.cga.ct.gov/2008/rpt/2008-r-0578.htm https://www.cga.ct.gov/2008/rpt/2008-r-0578.htm
    - deleted 4y ago
      [deleted]
  - whoknew1122 4y ago
    Many court cases interpret or discard wording to make whatever ruling they want. For example, the blatant disregard of the 9th amendment when it comes to privacy and health care decisions. Heller explains how a Court interpreted (and disregarded) the militia clause. All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe.
    - TMWNN 4y ago
      >All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe. Ah yes, yet another attempt to redefine court packing as "naming a judge I don't like", as opposed to what FDR actually tried (and failed) to do.

lesuorac 4y ago

> In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too No, they'll just find some other area of the law that is unconstitutional such that CA stays down and TX stays up. Similar to how on death row you're required to get a Priest (Christian) but not an Imam (Muslim). For the Imam case they ruled that the guy waited to long to sue but obviously the guy can't sue before his request has been denied and then actually writing a lawsuit takes time [1]. [1]: https://www.vox.com/22279878/supreme-court-death-penalty-religious-liberty-dunn-ray-smith-elena-kagan-amy-coney-barrett https://www.vox.com/22279878/supreme-court-death-penalty-rel...

Rebelgecko 4y ago

I doubt Newsom will actually get the Supreme Court to rule on the case, or that he'll even try to appeal. And even if he does there's substantial differences between the laws so there's room for the courts to say the constitutionality isn't 1:1. And in the mean time, I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points. I guess it's a good gig for those expert witnesses making $600/hr, and the plaintiff's attorney who was worried about having to empty out his 401(k) if they lost.

smt88 4y ago
> I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone. Texas's law, on the other hand, is actively harming people now, and this harmless California law is an attempt to help them (and fix a potential loophole in the Constitution).
- Rebelgecko 4y ago
  >Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone. I don't see how you can say that the right was never chilled, as far as I know there's no way to determine how many lawsuits weren't filed because the potential plaintiffs and their lawyers were afraid of losing their homes due to the fee shifting provision, even if they filed a successful lawsuit. On top of the difficulty of proving a negative, it turns out there actually are instances of people whose rights are being harmed by this law. There are quite a few court cases that were put on hold while the constitutionality of this part of the law was determined. When it comes to civil rights, I'm in the camp of "a right delayed is a right denied". Every single person whose civil rights lawsuit was put on hold or stayed pending the outcome of this ruling was harmed by it. On top of that, there's clear evidence that 1021.11 was used to harm people. The judge calls some of these instances out in his ruling (e.g. the Abrera and Defense Distributed cases).
- 4y ago

philwelch 4y ago

It’s interesting though. The TX law was one of many attempts to find some loophole in Roe v. Wade that might survive long enough to get SCOTUS to reconsider Roe. When Roe was overturned in an unrelated case, a conventional abortion ban came into effect in TX. In other words, SCOTUS isn’t going to end up making abortion legal in TX even if they uphold this precedent, because TX simultaneously has the kind of law that was already upheld in Dobbs.

s1artibartfast 4y ago

>In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too. I dont think that is true. The SCOTUS didn't rule on the constitutionality of Texas's citizen enforcement. >The U.S. Supreme Court's ruling in Whole Woman's Health v. Jackson, leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law.[1] https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woman's_Health_v._Jackson https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woma...

dragonwriter 4y ago
> > In this case, they’re trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too. > I dont think that is true. It was approximately true when the law was adopted, before Roe was struck down. Specifically, they were trying to present a situation where the Court would either be forced to rule that the mechanism the Texas law used to try to avoid federal court review of the substance by calling it something other than state action would be ruled as not serving that purpose, or states would be free to do whatever they want by the same method, including things that judges that preferred avoiding reaching the merits of the Texas case given Roe would not approve of. With Roe overturned, that fork no longer works to protect abortion rights, but that was the (fairly overt) purpose of the law. And it still works on other things, and other states have either adopted or discussed using the Texas mode to attack other rights which remain federally protected that California would have the same issue with by the same means Texas used on abortion, so the basic concern is still active even if the particular issue is less so.
- s1artibartfast 4y ago
  I think my point was that California's attempt was Dead on Arrival from a strategic perspective because it required its opponents to seek preemptive relief to force the SCOTUS to apply the law equally (or expose hypocrisy) . This is something that the opponents could simply sidestep by not challenging it preemptively, and waiting to challenge it later. The California Strategy only makes sense from the PR perspective because so many people erroneously believe that the SB8 ruling found the law constitutional, when in fact the actual ruling was that constitutional challenges needed to proceed at a later date. With that said, I do believe citizen enforcement is problematic in both cases, as well as the less discussed precedent of environmental regulations.

adamredwoods 4y ago

Clever, reminds me of The Onion's Anthony Novak's amicus: https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...

ellisv 4y ago

> which is to try to prompt a SCOTUS decision on a controversy. Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so.

smt88 4y ago
> Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so. Very possible. The court is essentially an imperial force now, as some spectators have said. It's worth a try, at least.
- TMWNN 4y ago
  >Very possible. The court is essentially an imperial force now, as some spectators have said. Oh, good grief. "4 justices have to agree to hear the case" = granting certiori, as said elsewhere in this thread. It is the completely normal and usual way of the court deciding whether to hear a case at all. I know that you got the "imperial" adjective from breathless recent media, but if you don't know even the basics of how the court works, refrain from commenting.