U.S. Supreme Court: Post-Ginsburg Edition

You are delusional. They could end the filibuster tomorrow and it would make zero difference.

― we only steal from the greatest books (PBKR), Tuesday, May 3, 2022

why would it make zero difference? they could finally get something done

― Dan S, Tuesday, May 3, 2022 9:24 PM (five minutes ago) bookmarkflaglink

Because 48 or 49 is not enough to pass legislation?

Gonna take a break and watch Heartstopper again tonight.

fuck it, i'm going with cocoon 2 tonight

fuck it all

I think they have 50 votes for a lot of legislation

maybe not everything we're hoping for

If Democrats somehow got the 50 votes to nuke the filibuster, they'd also theoretically have the 50 to codify abortion into federal law.

Can't imagine Sinema and Manchin finally crossing the aisle on filibuster but then saying 'oh no abortion is a bridge too far'.

Besides, I think gullible goofuses Collins and Murk would cross the aisle on abortion after being left holding the bag.

But it's moot as the filibuster is going nowhere and there's no way any pro-choice legislation clears 52 yay votes

I think they have 50 votes for a lot of legislation

Like what, list it out for us.

I mean if you're talking about lowering the highest tax bracket, sure.

COVID–19 National Memorial Act

JUST KIDDING!!!

"The first clause of Article I, Section 8, reads, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States"

This clause, called the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country, that is a power reserved to the states through the Tenth Amendment"

don't understand how that clause doesn't grant Congress the power to legislate for the welfare of the country. So we are going to have 30+ states that ban abortion and 15 states that allow it? it's hard to imagine

― Dan S, Tuesday, May 3, 2022 7:35 PM (fifty minutes ago) bookmarkflaglink

The general welfare clause has literally never been taken as a source of any specific power other than in connection with the collection of taxes/duties/imposts/excises. In other words, Congress has the power to tax so it can fund federal stuff that is good for defense and general welfare, but that doesn't grant it the power to do things for the general welfare that it doesn't otherwise have the power to do.

who's decided that

https://en.wikipedia.org/wiki/General_welfare_clause#United_States

"but that doesn't grant it the power to do things for the general welfare that it doesn't otherwise have the power to do"

I'm wondering why has it only been taken in connection with the collection of taxes/duties/imposts/excise

it says it in the sentence you pasted in and i quoted back to you

Because that's literally what the sentence says lol xp

I wonder if you could do it by passing some kind of far-reaching federal abortion regulation scheme under the interstate commerce clause and then arguing that federal preemption applied so states couldn't regulate abortion anymore, or at least certain aspects of abortion.

Interstate commerce tie-in could be that tons of people travel out of state to get abortions.

xp it also says "and provide for the common defense and general welfare of the United States"

i don't know what to tell you, bud

Dan S do you understand what the word "to" means?

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, [in order] to pay the debts and provide for the common defense and general welfare of the United States."

Does that help make it clearer?

honestly, when it comes down to words like "to", "the", "by", and "for", the meaning of words gets incredibly confusing imo

it would be cool, we'd have a way better country if they could just pass laws to promote things that are good. it doesn't matter though, they are not gonna use the spending clause to make states allow abortion. just read this and go to sleep. https://supreme.justia.com/cases/federal/us/483/203/#tab-opinion-1957222

There's another question on my mind too - which is if we accept that congress has the power to enshrine the right to abortion, doesn't that mean a conservative congress (which, guess what, we're about to have!) has the right to ban it federally?

xxp I'm not sure that clears it up for me but I respect you guys, I guess it's about paying debts. I'm not a lawyer but I believe that you know what you're talking about, just don't really understand

In other words "Congress has the power to collect taxes so that it is able to pay debts and provide for defense and general welfare."

I get it now

This is all a weird argument to me because the house literally passed the Women's Health Protection Act last year, and it very clearly prohibits states from restricting abortion.

https://www.congress.gov/bill/117th-congress/house-bill/3755

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

Everyone should agree that from now on backstreet abortions will be known as AlitoCare. As in, "You say your Trumpy uncle raped you and got you pregnant? That's a shame. Looks like you'll have to carry that fetus to term, unless you want to resort to AlitoCare."

I think it has a nice ring to it.

do you now, because i think it sounds horribly lighthearted and callous about a very grim and existent scenario

agreed

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

― Muad'Doob (Moodles), Wednesday, May 4, 2022 1:23 AM (six hours ago) bookmarkflaglink

i didn't read back to the beginning of this discussion but i think ppl were questioning whether such a law could withstand the awful supreme court because congress doesn't have the authority to make states just do anything. it's always possible to pass laws that are "unconstitutional." anyway if you ctrl+f "commerce" in here they are obv relying on the commerce clause not the general welfare clause: https://www.congress.gov/bill/117th-congress/house-bill/3755/text

btw i absolutely hate constitutional law

thinking about Argentinian feminists today, may we learn from their movements and follow their lead pic.twitter.com/hXyJsQZP4P

— eva lucía (@_soutomaior) May 3, 2022

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

― Muad'Doob (Moodles), Wednesday, May 4, 2022 1:23 AM (six hours ago) bookmarkflaglink

i didn't read back to the beginning of this discussion but i think ppl were questioning whether such a law could withstand the awful supreme court because congress doesn't have the authority to make states just do anything. it's always possible to pass laws that are "unconstitutional." anyway if you ctrl+f "commerce" in here they are obv relying on the commerce clause not the general welfare clause: https://www.congress.gov/bill/117th-congress/house-bill/3755/text

― towards fungal computer (harbl), Wednesday, May 4, 2022 6:51 AM (seventeen minutes ago) bookmarkflaglink

btw i absolutely hate constitutional law

― towards fungal computer (harbl), Wednesday, May 4, 2022 6:51 AM (sixteen minutes ago) bookmarkflaglink

Both of these posts OTM

I also hate federalism. The idea of a country made up of a bunch of little quasi-countries was stupid as fuck and the founding fathers should feel stupid

^^^^^^^

does not get said enough

i can't stand it. it's such a frustrating field of study and topic of discussion. i just want to scream "SO WHAT????" at the arguments.

the legalism of it all, i mean. federalism obv included.

Con Law was by far the most disillusioning and aggravating class I took in law school. "Oh, you're doing INTERMEDIATE scrutiny now Mr. Yale Law Man" *wanking motion*

if you take something like mask mandates or vax mandates (and put aside your personal thoughts on those two things). . . it really doesn't make sense to have a country made up of all these other little countries that have different ideas about what's right and wrong with those things, or most things! it's absolutely crazy!

Maybe it made some sense when travel was by horse and many people never left their town, idk.

this is going to show my ignorance at this stuff. . . but was reading an article last night and this fact blew my mind:

When Roe was decided, women had to get their husband's permissions to get a credit card

Yes! Abuela told me that a few years ago.

I was in Chicago in March, and we went to the Museum of Contemporary Art. There was an exhibition of the work of Andrea Bowers on the top floor, which has now ended, but one of the pieces of work struck me and moved me to tears.

It was walls of letters from desperate women in the 60s, writing in search of information for safe abortions. Although some of the letters were nearly as old as my own mother, the names, identifying details and places were redacted, and the voices came through as clearly as if they’d been written yesterday. The exhibition has now ended, but it was a shocking piece of work for the reminder that this fight has never ended, and of the real human consequences behind these decisions. You can read a piece about the exhibition and some of the letters here, I knew a lot of the American context but not this piece of the story. No matter how politely worded the letters are, they are all pleas. I took a couple of pictures.

I have thought about abortion as a matter of importance since I was maybe 13 or 14, it was illegal in Ireland for almost my whole life. I think people are very lucky if they’ve never had to think about this, frankly, because it was the single issue that got me into politics as a child, and it remains hugely contested as we see today. Don’t take it for granted, things can always get worse.

A sharp article on the history of SCOTUS leaks:

No member of the court that decided The Prize Cases thought informing counsel of their voting plans or advising counsel on their argument was injudicious. Rather, this appears to be commonplace in the first two-thirds of the nineteenth century. Courts were staffed with persons who were politically active, the judges remained politically active while on the court, and part of that political activity was informing political friends of what was happening inside the Court. Their behavior on the bench might be shocking by contemporary standards, although contemporary Supreme Court leaks are more common than publicly acknowledged, but Grier, Catron and others acted within the judicial norm during the mid-nineteenth century. Some discretion was advisable, but only some.

The Republic did not fall, teeter, or even flinch when justices leaked information. The impact of leaking was considerably to the right of the decimal point. Leak or no leak, Democrats were thrilled that the Supreme Court was willing to take the lead resolving whether Congress could ban slavery in the territories. Abraham Lincoln did not need evidence of the correspondence between Buchanan, Catron and Grier to claim a conspiracy to nationalize slavery between Democratic elected officials and Democrats on the Supreme Court during his debates with Stephen Douglas. The judicial leaks in the Prize Cases confirmed what many of the justices had been saying about the blockade in their capacity as federal circuit judges and in their private correspondence (which was often public). The leaks in Milligan gave some members of Congress a little more time to think about how to operate Reconstruction with a Supreme Court not fond of martial rule.

do you now, because i think it sounds horribly lighthearted and callous about a very grim and existent scenario

I was being sarcastic after reading the Alito draft being angered by *his* callousness. Not at all lighthearted. Sorry.

I hope Gorsuch and Kavanaugh's houses are filled w/ picketers

The idea of a country made up of a bunch of little quasi-countries was stupid as fuck and the founding fathers should feel stupid

Absolutely! But to give them a little benefit of the doubt, what precedents did they have to look to? No one had really tried a nation-state on this this scale before.

Historically, empires and nations were quasi-federal (with subordinate governments given a decent amount of autonomy of style). What we now refer to as "Germany" was once hundreds of principalities - ditto "Italy" and "France" or for that matter "England."

In fact I dimly recall that there was more than one Germany, not that long ago. Also I am given to understand that there are some bits of Great Britain that are not quite aligned, in terms of how to be governed and by whom. It was in the news and everything.

All it took for the Holy Roman Empire to finally collapse like old dust was a swift kick from Napoleon.