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View Diary: The Catch-22 in Chief Justice Roberts' Argument (67 comments)

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  •  It is--depressing is too mild a term-- (29+ / 0-)

    appalling to see the lack of reasoning ability displayed by a man who is one of the nine judges of last resort in this country. Perhaps he's being deliberately disingenuous, which makes it even worse.

    Some DKos series & groups worth your while: Black Kos, Native American Netroots, KosAbility, Monday Night Cancer Club. If you'd like to join the Motor City Kossacks, send me a Kosmail.

    by peregrine kate on Thu Mar 28, 2013 at 12:09:00 PM PDT

    •  I'm not sure either. I always wonder about that (25+ / 0-)

      with a person like Roberts.
      But mainly I feel that people like Roberts and Alito lack the ability to empathize with others and are so insulated from the problems other people experience that they never quite get what the problem is. It's like Mitt Romney -- kind of, "I'm fine, so there must be something wrong about you that you're not." It's a endemic Republican disease, IMO.

      While Democrats work to get more people to vote, Republicans work to ensure those votes won't count.

      by Tamar on Thu Mar 28, 2013 at 12:15:26 PM PDT

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      •  I so agree, it does seem that way (5+ / 0-)

        so obtuse to think LBGT people have been completely accepted and have it easy now in the US, no more descrimination.

        Such people think that their experience in life is reality.
        They can't crawl into other people's shoes.

        It is a mistake for such people to be put in power on SCOTUS.

        I think this is what Obama meant when he said he wanted to appoint SC judges who had "empathy". Republicans mocked that.

        He wants people who CAN crawl into others shoes, who are  broadminded. Who might take into account that they themselves live a privleged lifestyle and may have the most accurate bead on where society in general is at.

        •  Yes -- not empathy in the goo-goo way the (3+ / 0-)
          Recommended by:
          JBL55, alice kleeman, jplanner

          Republicans made it sound, but an openness to understanding the lives of other people. That doesn't mean their ruling can always be in accord with their feeling, however. I know I read about a ruling from a judge recently in which the judge was totally in tune with what one side was saying but had to rule against them because of the law.

          While Democrats work to get more people to vote, Republicans work to ensure those votes won't count.

          by Tamar on Fri Mar 29, 2013 at 07:45:30 AM PDT

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          •  true, and that is a judge's job. (1+ / 0-)
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            but at other times the ability to crawl into another's shoes--say by even GETTING that discrimination against LBGT people is still rampant so not arguing otherwise--really informs the decison making and actually is important to it.

            Even in this case. If Roberts mistakenly thought, as he seems to (astoundingly), that LGBT people don't need protection, he may not put them in the right judicial catagory.

            Justice Sotomayor talks about this. When asked what she thought Obama meant by empathy in nominating her, she called it the abilty to understand lives not just like your own, an openmindedness to the possiblity of other's experiences.

            I am appalled that Justice Roberts could argue (with a straight face) that LBGT people have full power.

      •  I think it's also a subconscious fear. (2+ / 0-)
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        Tamar, alice kleeman

        Those in the majority take their entitlements so much for granted that the idea of anyone even approaching equality is anathema to them as a visceral level they can't even articulate.

        "The fears of one class of men are not the measure of the rights of another." ~ George Bancroft (1800-1891)

        by JBL55 on Fri Mar 29, 2013 at 09:09:31 AM PDT

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        •  They see rights as a bucket they access (3+ / 0-)
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          JBL55, Tamar, radical simplicity

          If all current rights are in this bucket and someone else is asking for rights, there's no place for them to come out of except the bucket.

          What they don't understand is that rights are not a bucket.  Rights are an ever-expanding pool.  If someone else is allowed to come into the pool, then the pool just gets bigger.  Everyone fits.  There's always room for more.  And because of that, their rights are not diminished by any one else's equality.  

          But it's very hard to get them to see this.

          History should teach humility and prudence, but America doesn't seem to learn. I've never seen a virgin who loses her innocence so often. -- Gordon Wood

          by stormicats on Fri Mar 29, 2013 at 10:45:57 AM PDT

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          •  Yes -- to them it's a zero-sum game. (2+ / 0-)
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            Tamar, radical simplicity

            If others gain rights, it must be bad for those who already have them.

            Very sad view of life for them, and monstrous for those aspiring to full citizenship.

            "The fears of one class of men are not the measure of the rights of another." ~ George Bancroft (1800-1891)

            by JBL55 on Fri Mar 29, 2013 at 10:50:04 AM PDT

            [ Parent ]

    •  Roberts is correct, actually, in part (17+ / 0-)

      The test of whether a group needs the protection of strict scrutiny is whether the group is sufficiently powerful to protect its own interests.  He is right on that point.

      Where he goes wrong is that few if any minorities are that powerful.  LGBT communities aren't even close.  Maybe if state legislatures averaged 10% open LGBT membership and there were adequate laws in place there might be a point here as a factual matter but we are nowhere near that.  In fact the court has before it a solid record demonstrating that the LGBT community is under represented in positions of power and is the most targeted minority for hate crimes except Native Americans. I actually wrote an amicus brief for the ninth circuit on this in the prop 8 case.  Not sure if that's part of the Supreme Court record though.  

      Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescindibles.

      by Mindful Nature on Thu Mar 28, 2013 at 07:43:52 PM PDT

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      •  ha even women (9+ / 0-)

        who are 51% of our population and usually even a higher percentage of those who vote in elections do not have the power.

        Only 18% of Congress is female. Equal Rights Amendment did not pass. We struggled to pass the Violence Against women act. This overwhelmingly MALE group is trying to ban payment for medication and procedures that only Women need...things they clearly don't understand or empathise with.

        I wish Roberts had been argued with more. WHen 5-10% of  Congress is out LBGT people we'll know it may be approaching equality. Instead, just this past election we are having firsts...first openly Gay Senator, IIRC. First openly Bisexual Congressperson, IIRC. There is far to go for LBGT people. Even with Black Senators, we've only have had a handful. Right now there are only TWO out of 100 IIRC...and NEITHER was elected by the people-they both were appointed. !2% or more of our country is African American. Yet usually 0-2% of the Senate is.

        When a minority group is underrepresented in Congress as women, Black people, LBGT people are, you can be sure they LACK power and need to be protected still.

        •  Agree, except they couldn't argue more with (4+ / 0-)

          Roberts. Supreme Court cases just don't work that way. From what I heard on the audio, Kaplan did a good job.
          And even if she had been allowed to go on with her argument, Roberts wasn't hearing it. He had his views and that was that.

          While Democrats work to get more people to vote, Republicans work to ensure those votes won't count.

          by Tamar on Fri Mar 29, 2013 at 07:50:26 AM PDT

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          •  I'm talking like a sentence but agree (1+ / 0-)
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            she did a fine job.

            Sometimes wishing isn't literal, also. As in I wish that idea came out because when false assessments are put out there and not countered their they are existing as if they are facts, for some people.

            Doesn't mean I think she did a bad job or could have done better. Am not asssessing per say her work. Just want him countered.

      •  Great points, (4+ / 0-)

        I'd just caution in the context of the diary that this is oral argument, and if petitioners seek heightened scrutiny, this is a question they have to be prepared to ask, whether it's from Roberts or another Justice.  

        I do think Roberts is less likely to move the dials on this one.  I'm increasingly confident that DOMA and Prop 8 both get stricken on rational basis +, which would be good, but wouldn't explicitly lay the groundwork for marriage equality in states that don't have it.  (Some of the 2004 ballot initiatives might be in question, but I'd have to look into that further.)  

        But I can see how Roberts was pretty tone deaf in how he asked the question. I knew what legal point he was making, and I still heard "gay mafia."

        Difficult, difficult, lemon difficult.

        by Loge on Fri Mar 29, 2013 at 07:41:26 AM PDT

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      •  even in our very liberal area, there are attacks (1+ / 0-)
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        on gay and transgender people. My daughter had two friends attacked while waiting at a bus stop -- 2 gay men. Two women, lesbians, were attacked while walking down a street in D.C., and the police let their attackers go (there was a lot of publicity about that case, luckily).

        While Democrats work to get more people to vote, Republicans work to ensure those votes won't count.

        by Tamar on Fri Mar 29, 2013 at 07:47:51 AM PDT

        [ Parent ]

    •  Just a little nose rubbing (1+ / 0-)
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      I think he likes to rub a persons nose in the fact that he has power over them.  And with such a pleasant smile, too.

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