posted
The Supreme Court today refused to hear the case from the Right about the Gay Marriage Laws in Massachusetts.
Yea! A win for the gays! But wait, what it really means is that there will be no appeal to the Supreme Court for all those in States with a new 'No Gay Marriage Amendment'. A Win for the Right disguised as a loss!
It was the slickest bit of razzle dazzle I have ever seen! A 'refuse too hear precedent' that just cost us Massachusetts, which we were done with anyway!
SCOTUS hasn't said they won't hear cases on gay marriage. They've said that the rebuplican form of government guarantee historically has provided no grounds for overturning judicial review of state constitutions and no more than 3 justices thought the case had any hope of being heard.
The amendments will raise equal protection issues, especially the ones banning civil unions and seeming to ban contractual arrangements. I'd be willing to bet a lot of money that one of those cases will be granted cert in the next 5 years or so.
posted
I heard about that on the road today, I never thought about how it left the gay marriage issue up to the state. I thought it was a setback for traditional morality but it looks like a setback for the liberals.
Five years on the other issues? Good luck with three new Bush appointed judges! That is why I glad to see Bush put his stamp on things in the Bureaucracy and the Courts, places where we can count on the torch being carried after the next election which is very much up in the air!
Posts: 117 | Registered: Nov 2004
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posted
The reason for the Court's refusal to grant cert had nothing to do with the constitutional implications of gay marriage. It had to do with a very specific clause of the Constitution that is almost never invoked by the Court. The clause that the amendments will be challenged under is very different and is invoked by the Court as much as any other.
This is a concept the general public seems to have trouble grasping: every single justice on the court has decided many cases in such a way as to end up supporting policies they oppose, or striking down policies they support. Every. Single. One.
A refusal to hear a case can NEVER be taken as the Court (or individual justices) supporting or opposing a particular public policy.
posted
Hmmm... I was expecting this title to be refering to Bush.
As for the Court's decision, I suspect it only means that the Court considers this issue too prickly to be taken on by them at the present time. That's not a rare thing for the Court to do.
Posts: 2432 | Registered: Feb 2001
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posted
Some pertinent language from the Circuit Court decision, Largess v. Supreme Judicial Court, 373 F.3d 219:
quote:A federal court should be wary of attempts to draw the court into reviewing the decision of a state's highest court on matters of state constitutional law.
quote:The United States Supreme Court has found Guarantee Clause claims non-justiciable where they were political in nature and where there was a clear absence of judicially manageable standards
quote:The first portion of the Guarantee Clause, U.S. Const. art. IV, § 4, is only implicated when there is a threat to a "Republican Form of Government." "Republican" is commonly defined as of, relating to, or having the characteristics of a republic: having the form or based on the principles of a republic. "Republic," in turn, is defined as a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law. The Guarantee Clause does not require a particular allocation of power within each state so long as a republican form of government is preserved. Indeed, the forms of each state government at the time of the adoption of the Constitution varied in terms of separations of powers and are each presumed to have been "Republican" within the meaning of the Guarantee Clause. If there is any role for federal courts under the Clause, it is restricted to real threats to a republican form of government
quote:The allocation of powers, including the amendment powers, set forth in the Massachusetts Constitution, self-evidently do not violate the Guarantee Clause, U.S. Const. art. IV, § 4.
quote:The United States Supreme Court cases addressing the Guarantee Clause confirm what the plain text of the Clause suggests: most disputes concerning the relationship among a state government's constituent branches do not offend the Constitution's guarantee of a republican form of government. How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.
The injury issue specifically related to whether an injunction could be issued. A movant seeking injunction must show "that they will suffer irreparable injury if injunctive relief is not issued." (Emphasis added.)
But the Circuit decided on other grounds than merely justiciability.
posted
In the arcane world of law anybody so educated as to think one cannot find justification for virtually any opinion one wants to hold Is. Fooling. Himself.
posted
And yet, one constant throughout the judiciary is that every judge makes decisions s/he would prefer not to make, with policy consequences they often find abhorent.
Wow. Maybe things aren't as simple as you seem to think they are, huh?
posted
Find a way for us to do what we want... if judges have rendered against their preferences then you will find self interest acting in some other form. Mark Twain gave us the best answer to the proliferation of the Lawyers. Judges, Lawyers and Insurance Companies... all hogs at the public trough and each providing the reason for the other.
posted
Oh well, in that case, let me totally hijack the thread. How does the Supreme Court do its business? I'm not talking about how it gets to hear cases, though I am woefully ignorant on that as well, but the actual administration. For example, in the opinion Dagonee quoted above, did all nine judges sit around a table and hammer out the clauses? Did they discuss it for a while and then get a minion to write down the legal language, just telling him what the salient points were? Did one judge write it, and the others review and sign off, or oppose as the case might be?
Posts: 10645 | Registered: Jul 2004
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posted
To clarify, the language quoted above was from the Circuit court.
The circuit courts sit between the lowest federal courts (District Courts) and the Supreme Court. Almost any final judgment can be automatically appealed to the circuits. Very few of those are heard by the Supreme Court.
In the Supreme Court, they generally have a conference and a preliminary meeting where they vote on the outcome of the case.
The Chief Justice or the most senior justice on the majority side assigns someone to write the majority opinion. Any justice who wants to can write a concurring opinions, in which they agree with the holding (the part that says specifies what the next action will be) but have different reasoning. Often, concurring opinions will agree with the entire majority opinion but elaborate on one point. Or they will agree with part (e.g., parts I, II, III and the judgment) and disagree with another part.
Dissenting opinons can be written by any justice that disagrees with the final judgment. usually they'll select one person to write the dissent, but often someone will write a different dissent or agree with the dissent and elaborate on one point. Thomas is famous for this.
When choosing the justice to write an opinion, the justices who agree will often choose the "marginal" vote, that is, the justice who differs from the main group the most. This ensures that justice doesn't change his/her mind.
As for the writing, there are clerks (hired by individual justices) who assist with the research, and some justices use some of their clerks' writings. The actual mechanics are relatively secret.
All the opinions will be circulated back and forth. Justices signing onto an opinion will often barter for specific changes, their threat being writing a concurring opinion or actually changing their vote. Often this is as simple as adding a footnote emphasizing, "The Court does not reach issue X in this decision."
Even opposing opinions are exchanged so justices can deal with the opposing arguments in their opinions. When everyone is done, they release their decision.
Grossly oversimplified, of course, but it should give you an idea.
posted
Correct me if I'm wrong, BC, but the case from the Republicans was a state law issue under a state constitution. It's SCOTUS's policy not to interfere in state law unless there is a federal constitutional question. Thus, if it is as I suspect, and the republicans were challenging the Massachusetts law as unconstitutional under the Massachusetts constitution, the federal courts usually let the decision of the Massachusetts supreme court stand.
Besides, those of us who want equal rights for gays and lesbians didn't really expect SCOTUS to extend the state law to the entire U.S. That would be illegal and foolish of the court even to attempt. What we are hoping is that the court will strike down DOMA, where its jurisdiction is on far stronger footing, as it's a federal question. This will lead to states having to recognize gay marriages performed in states that allow them. That would be a big step. Massachusetts's new laws were always going to be limited to Massachusetts.
Posts: 894 | Registered: Apr 2000
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We have had cases where one judge will not only propound their dissenting view in their judgment but then address the criticisms of that dissent that are found in one of the majority judgments - so to understand the point you have to flip back and forth between the judgments.
Justice Kirby is especially notorius for it.
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posted
"It was the slickest bit of razzle dazzle I have ever seen!"
I find it interesting that BC apparently takes as a given that the High Court is biased towards the Right, and is even willing to resort to "razzle-dazzle" to advance the Right's agenda. That's the first time I've seen a Republican on this board say that the Bush presidency was stolen.
Posts: 37449 | Registered: May 1999
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quote:That's the first time I've seen a Republican on this board say that the Bush presidency was stolen.
If this sentence is an example of how you read posts, I'm surprised you haven't applied your evidently extensive powers of reading things into the posts of others to reach this conclusion before.
BC believes that the Supreme Court is willing to bend precedent to the breaking point in order to advance the agenda of the Right. The Supreme Court has not changed its makeup since the 2000 election. Certainly, their legal grounds for that decision were flimsier than the grounds for this decision. Ergo, it does not seem unreasonable to conclude that BC believes they would have been willing to hand the presidency to Bush.
Note, mind you, that this is not what I think. I'm merely pointing out another case in which any presumed right-wing bias -- the presumption under which BC operates -- would have been remarkably relevant.
Posts: 37449 | Registered: May 1999
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quote:BC believes that the Supreme Court is willing to bend precedent to the breaking point in order to advance the agenda of the Right.
Actually, BC has shown no glimmer of comprehension of the importance of precedent nor which precedents were relevant here.
quote:The Supreme Court has not changed its makeup since the 2000 election. Certainly, their legal grounds for that decision were flimsier than the grounds for this decision.
You base this certainty on what, exactly?
quote:Ergo, it does not seem unreasonable to conclude that BC believes they would have been willing to hand the presidency to Bush.
"Does not seem unreasonable that X believes" equals "admit"?
posted
Yeah. Shows what I know! All I had to go on was BC's statement that it was brought by "the Right," so I didn't really know.
Posts: 894 | Registered: Apr 2000
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posted
Dag, you're getting all lawyerly again. I thought TomD used a nifty rhetorical device on BC. The statement is only as true as BC lets it be.
So yeah, it's a variation on the whole "Do you still beat your wife?" question. In this case, BC either has to agree that there was the possibility that this right-leaning court handed Bush the 2000 election (which I think even Tom doubts), or his whole opening posts basic assumptions are shown incorrect, therefore requiring BC to come up with a new argument. Hopefully a more cogent one at that.
That said, I was amused how quick the right-wing spin machine works, even on Hatrack. You wonder why some of us self-describved liberals feel a bit flighty? Even when we have the whole of Hatrack to pull tons of awesome examples of conservative citizens? I know, I'm being a bit melodramatic, I'm sure.
-- For the record, it is now month 6 of MA's Sodom & Gomorrah Experiment, and my wedding is still on schedule for the middle of next year, in the middle of MA. There's still plenty of time left for that creeping immorality to sunder us though, I suppose.
quote:I thought TomD used a nifty rhetorical device on BC. The statement is only as true as BC lets it be.
So yeah, it's a variation on the whole "Do you still beat your wife?" question. In this case, BC either has to agree that there was the possibility that this right-leaning court handed Bush the 2000 election (which I think even Tom doubts), or his whole opening posts basic assumptions are shown incorrect, therefore requiring BC to come up with a new argument. Hopefully a more cogent one at that.
Nifty, yes. Effective, no.
Leaving that much unsaid for BC to infer and expecting BC to choose one of two logical alternatives is historically unlikely to succeed, no?
posted
A man walks into a brothel and pays for his hour, as he enters the room to complete his transaction he disrobes and hears the well endowed lady who is his companion let out a giggle.
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