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The kind of ruling at issue (on what preliminary measures to take to while a case is being adjudicated) are, under the law, based on a wide variety of considera

The kind of ruling at issue (on what preliminary measures to take to while a case is being adjudicated) are, under the law, based on a wide variety of considerations beyond the merits of the underlying case (though a judegement of likelihood of success on the merits is one of the factors, it is not the only one.) The concrete impact of the act to be allowed or constrained is, very much, a part of that analysis, so situations which are otherwise legally similar in terms of the underlying issues but where the potential impacts in the interim of adjudication are different can very easily have very different outcomes at this level without judicial favoritism or misconduct. Which isn't to say that there aren't problems with recent Supreme Court decisions in this area, just than you need more than “cases with similar underlying legal questions have different outcomes on preliminary orders governing what is allowed before the case is resolved” to make that case.

rayiner 1y ago
> Which isn't to say that there aren't problems with recent Supreme Court decisions in this area The problems aren’t with the recent decisions, but the 1930s ones. I don’t think there’s a decision on the books today that was more clearly wrongly decided than Humphrey’s Executor. I mean: > The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. The concession in italics should have made this a slam dunk case in the other direction. Enforcement of the law is the quintessential executive power. An English peasant in the 1600s could have gotten this one right. And where does the constitution say anything about Congress being able to create “quasi-judicial and quasi-legislative” bodies? The founders spilled all this ink to make three branches of government, but they really meant “j/k mix them all up into one unelected body if you want!”
- vlovich123 1y ago
  That may be the case but it’s hard to look at recent rulings by the Supreme Court and direction of things happening within the executive as anything other than “anything for my friends, for everyone else the law”, whether that’s overturning Roe v Wade (and probably Griswald too sooner rather than later) or overturning the meaning of the words “well organized militia” in usurping the legislation’s ability to regulate private firearms. Having different playbooks for players to follow depending on whether one team is for you or against is an interesting approach but one that’s been tried many times before and not one that will leave this country unified or in a better shape than it was found.
  - rayiner 1y ago
    The examples you picked aren’t great to support your point. An alien with a copy of the Constitution and the Federalist Papers would easily discern that the document intends to afford greater protection to the right to bear arms than some right to bodily autonomy. As to these particular cases, even prominent liberals have questioned the soundness of the original decisions. The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” There is nothing complicated about the prefatory clause. If the amendment read: “News reporting, being necessary to the public debate of a free State, the right of the people to free speech shall not be infringed,” nobody would say that only professional news reporters have a right to free speech. They would say that “the right of the people to free speech” refers to a preexisting right that belongs to “the people” and the introductory clause provides the rationale for protecting it. The meaning isn’t even confusing when you recall that, at the time, militias were “bring your own firearm.” You don’t even need to open up the Federalist Papers and read Hamilton’s writing on European monarchs disarming their people. Even Larry Tribe, who hates Trump and conservatives more than anyone in legal academia, came around to this view of the Second Amendment: https://hls.harvard.edu/today/why-i-changed-my-mind https://hls.harvard.edu/today/why-i-changed-my-mind. In contrast, there concededly is no “right of privacy” in the Constitution. Griswold turned to “emanations from penumbras” to find such a right. Nobody left of center would apply similar reasoning to find economic rights in the “emanations from penumbras” of the Contract Clause. This is such a case—Lochner—and folks on both sides agree it’s wrong. Griswold and Roe are just Lochner applied to sexual liberties rather than economic ones. Even most left of center folks would struggle to write an opinion like Griswold and Roe today. They’re relics of an age when the Supreme Court was like a Yankee WASP version of Iran’s Guardian Council, ensuring compliance of temporal law with higher moral law.
    - vlovich123 1y ago
      An alien given a copy of the constitution knows that the constitution is not an enumeration of rights that people have, but carve outs specifically where the federal government can supersede the power of the individual and more importantly local governments. The right to bodily autonomy as such is implicitly protected by the 9th amendment which states the constitution is not a set of positive enumeration of rights granted but instead limits placed on the power of government to take away all rights which are inherently ours. Whether you find those rights because you want to look for it in the 4th amendment limits on governments right to invade your privacy is largely irrelevant. I’ll also point out that regardless of the arguments on the 2nd amendment, historically regulation of arms was completely allowed and even today that’s allowed (eg you can’t get a nuclear weapon). And ignoring that is very interesting considering the current SCOTUS’s random “historic tradition” argument from conservatives.

rayiner 1y ago

> Which isn't to say that there aren't problems with recent Supreme Court decisions in this area The problems aren’t with the recent decisions, but the 1930s ones. I don’t think there’s a decision on the books today that was more clearly wrongly decided than Humphrey’s Executor. I mean: > The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. The concession in italics should have made this a slam dunk case in the other direction. Enforcement of the law is the quintessential executive power. An English peasant in the 1600s could have gotten this one right. And where does the constitution say anything about Congress being able to create “quasi-judicial and quasi-legislative” bodies? The founders spilled all this ink to make three branches of government, but they really meant “j/k mix them all up into one unelected body if you want!”

vlovich123 1y ago
That may be the case but it’s hard to look at recent rulings by the Supreme Court and direction of things happening within the executive as anything other than “anything for my friends, for everyone else the law”, whether that’s overturning Roe v Wade (and probably Griswald too sooner rather than later) or overturning the meaning of the words “well organized militia” in usurping the legislation’s ability to regulate private firearms. Having different playbooks for players to follow depending on whether one team is for you or against is an interesting approach but one that’s been tried many times before and not one that will leave this country unified or in a better shape than it was found.
- rayiner 1y ago
  The examples you picked aren’t great to support your point. An alien with a copy of the Constitution and the Federalist Papers would easily discern that the document intends to afford greater protection to the right to bear arms than some right to bodily autonomy. As to these particular cases, even prominent liberals have questioned the soundness of the original decisions. The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” There is nothing complicated about the prefatory clause. If the amendment read: “News reporting, being necessary to the public debate of a free State, the right of the people to free speech shall not be infringed,” nobody would say that only professional news reporters have a right to free speech. They would say that “the right of the people to free speech” refers to a preexisting right that belongs to “the people” and the introductory clause provides the rationale for protecting it. The meaning isn’t even confusing when you recall that, at the time, militias were “bring your own firearm.” You don’t even need to open up the Federalist Papers and read Hamilton’s writing on European monarchs disarming their people. Even Larry Tribe, who hates Trump and conservatives more than anyone in legal academia, came around to this view of the Second Amendment: https://hls.harvard.edu/today/why-i-changed-my-mind https://hls.harvard.edu/today/why-i-changed-my-mind. In contrast, there concededly is no “right of privacy” in the Constitution. Griswold turned to “emanations from penumbras” to find such a right. Nobody left of center would apply similar reasoning to find economic rights in the “emanations from penumbras” of the Contract Clause. This is such a case—Lochner—and folks on both sides agree it’s wrong. Griswold and Roe are just Lochner applied to sexual liberties rather than economic ones. Even most left of center folks would struggle to write an opinion like Griswold and Roe today. They’re relics of an age when the Supreme Court was like a Yankee WASP version of Iran’s Guardian Council, ensuring compliance of temporal law with higher moral law.
  - vlovich123 1y ago
    An alien given a copy of the constitution knows that the constitution is not an enumeration of rights that people have, but carve outs specifically where the federal government can supersede the power of the individual and more importantly local governments. The right to bodily autonomy as such is implicitly protected by the 9th amendment which states the constitution is not a set of positive enumeration of rights granted but instead limits placed on the power of government to take away all rights which are inherently ours. Whether you find those rights because you want to look for it in the 4th amendment limits on governments right to invade your privacy is largely irrelevant. I’ll also point out that regardless of the arguments on the 2nd amendment, historically regulation of arms was completely allowed and even today that’s allowed (eg you can’t get a nuclear weapon). And ignoring that is very interesting considering the current SCOTUS’s random “historic tradition” argument from conservatives.