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View Diary: Federal Judge to Supreme Court majority: STFU (170 comments)

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  •  There are 2-3 ways to check SCOTUS legally (31+ / 0-)

    1. Impeach offending judges. Not likely w/o accusations of a crime against a Justice, but still theoretically possible.

    2. Amend the constitution to invalidate their ruling, or the statute, if statutorily based.

    3. Pass a new statute that changes the number of persons sitting on the court from 9 to 11, 13, or 15.  The president at the time gets to appoint all the new seats. The conservative majority, can thereby be made a conservative rump. Very politically volatile, as FDR proved, but it is in actuality the easiest to do, b/c you only need a majority of both houses of congress.   Impeachment and constitutional amendments require super-majority thresholds.

    Even a single lamp dispels the darkness. --Gandhi

    by My Philosophy on Mon Jul 07, 2014 at 10:29:09 AM PDT

    [ Parent ]

    •  I don't see those as viable (17+ / 0-)

      Who's going to impeach any of the current justices?  Even for lying in their confirmation hearings, as Roberts very clearly did when he misrepresented his views of stare decisis.  "Balls and strikes," my ass.

      Their rulings are piling up in ways that make invalidating them by Constitutional Amendment, or even by statute, impractical.  Rulings can come out faster than new statutes, let alone constitutional changes.

      FDR's experience with court packing will make any subsequent effort a non-starter.  It's a device that can be resorted to over and over, making a court of 40 justices a realistic possibility.

      Maybe a 20 year term for justices could pass as a Constitutional Amendment?

      I stand with triv33. Shame on her attackers.

      by Dallasdoc on Mon Jul 07, 2014 at 10:36:22 AM PDT

      [ Parent ]

    •  Is it possible (5+ / 0-)
      Recommended by:
      LSophia, nellgwen, avsp, Simplify, HSans

      to impeach based on crimes against justice in general?  Or more to the point, the obstruction of said justice?

      I'll believe corporations are people when one comes home from Afghanistan in a body bag.

      by mojo11 on Mon Jul 07, 2014 at 10:47:50 AM PDT

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    •  In the Hobby Lobby case, (12+ / 0-)

      they need only amend the RFRA text, as the decision was on statutory, not constitutional grounds.

      Difficult, difficult, lemon difficult.

      by Loge on Mon Jul 07, 2014 at 10:50:07 AM PDT

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      •  Do you think that, at this point, that really (5+ / 0-)

        matters? Boehner, running scared of the Tea Party, and preparing to sue the President, would never let a revision come to the floor.

        Oh oh, I hope THAT doesn't end up in someone's sig line! :) - kos

        by Susan Grigsby on Mon Jul 07, 2014 at 10:52:50 AM PDT

        [ Parent ]

      •  But they established a religious right beyond (1+ / 0-)
        Recommended by:
        avsp

        that RFRA, right?

        Lets say congress repealed it, Hobby Lobby would sue again anyway for their religious  objection.

        Congress amends to say NOT corporations. SCOTUS specifically said they were a person now.

        "The poor can never be made to suffer enough." Jimmy Breslin

        by merrywidow on Mon Jul 07, 2014 at 10:54:45 AM PDT

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        •  There's no judicially implied right (5+ / 0-)

          Hobby Lobby could have cited with RFRA -- in fact, RFRA was enacted because the Court in the person of Justice Scalia wrote that the free exercise clause, in and of itself, does not create a right to accommodation from a law of general applicability.

          At the same time, they didn't really apply the "substantially burdened" language of RFRA all that seriously in reaching the decision, so it's hard to say it's entirely based on the statute.  But as a matter of law, it is not a religious right "beyond" RFRA.   The decision (a) extended RFRA to apply to the owners of closely held corporations, and (b) found a substantial burden on religious exercise in complying with birth control coverage mandates, where the mandate was not the "least restrictive means" of advancing a compelling interest.  The decision is incorrect, but the framework was entirely based on statute.

          Difficult, difficult, lemon difficult.

          by Loge on Mon Jul 07, 2014 at 11:08:24 AM PDT

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        •  merrywidow - the SCOTUS has never stated (4+ / 0-)
          Recommended by:
          nextstep, Pi Li, MichaelNY, Ratiocination

          that corporations are people although that is a widely held view here. Loge has a very good answer to your specific issue.

          "let's talk about that" uid 92953

          by VClib on Tue Jul 08, 2014 at 08:24:49 AM PDT

          [ Parent ]

      •  They could and they should (17+ / 0-)

        But cases like Citizens United, McCutcheon, Shelby and Hobby Lobby all show the Federalist Society pipeline.  Conservative legal beagles are lining up these cases to go through the courts and arrive at SCOTUS, where the Humanae Vitae Court is waiting to take a swing at these big fat hanging curveballs up the middle.

        It's beyond obvious by now that there's a long-term strategy here that conservatives have been working on for 40 years or more, and they're working it for all they're worth now that they have a functioning majority on most of their cases.  Unless one of the RATS has an unfortunate medical event in the near future, things are going to get worse before they have a chance to get better.  The country needs some sort of recourse.

        I stand with triv33. Shame on her attackers.

        by Dallasdoc on Mon Jul 07, 2014 at 11:00:48 AM PDT

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      •  I think this could make for awesome politics . . . (7+ / 0-)

        . . . and a great big FUCK YOU to the Hobby Lobby 5.  Amend the RFRA with language to the effect that "nothing herein should be construed as limiting anyone's right or access to the contraceptive of their choice" and suddenly the one "religious practice" they bent over backwards to protect is debunked.  "Religious practice" regarding contraception becomes as mainstream or respectable as burning babies for Baal.

        Sure, Boehner and his crew will obstruct but if that obstruction comes in October and November, we'll have the Republicans squarely positioned against access to contraception -- which seems to be fairly popular with the electorate, those horny little bastards.

        •  They don't even have to specify contraception (4+ / 0-)

          Just modify the law to apply only to individuals, and not corporations.  Then, ruling in favor a corporation under the RFRA would definitely pierce the corporate veil, and none of the right-wing SCOTUS justice's fat-cat CEO buddies would ever want that.  They're already very nervous with this ruling as it now stands.

          In fact, I'm waiting for some injury to occur in either a Hobby Lobby store or with some merchandise Hobby Lobby sells.  Whoever gets injured should sue the officers personally.  If you get to impose your personal religious beliefs on your employees, you can't at the same time claim to hide behind a corporate shield when it comes to liability.  It's either personal or it's a corporation.  It can't be both.

          And trust me, if/when this happens, every other corporate-backed lobbyist is going to be beating down the doors of their bought-and-paid-for Congresspersons and telling them to amend that law to specifically exclude corporations before breakfast the next day.  There are potentially billions of dollars in CEO's pockets and portfolios at stake here (imagine the impact if the people of the Gulf of Mexico and the states involved could have sued the officers of BP directly).  Hobby Lobby's peers aren't about to jeopardize their lavish lifestyles to indulge some religious wing-nut businessmen's wacky views.  When it comes down to real cash-money, "deeply held religious beliefs" will fly out the window.

        •  even further: science-based medicine generally. (2+ / 0-)
          Recommended by:
          silverfoxcruiser, Ratiocination

          This because anti-vaxxers will also seek to take advantage of the HL ruling, and we will see more measles & whooping cough as a result.  We need to head them off at the pass.

          We got the future back. Uh-oh.

          by G2geek on Mon Jul 07, 2014 at 07:19:09 PM PDT

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          •  I had measles at--- (0+ / 0-)

            I had measles at age 16 and I would not wish that on ANYONE (Well--I shd mod that to "Anyone but my deepest enemies")  

            And that cured me of any "Don't vaccinate"  and "Herd immunity"  and "Umbrella Effect" bull crap I might have ever entertained.  

            Almost blinded me and was extremely painful.  Missed out on weeks of stuff I had planned to do.  Left me open to other diseases I should have been able to easily fight off.  Might have done life-long damage to some of my organs.  

            And I was IN the age range where I HAD been vaccinated AGAINST measles.  

            All of my kids were vaccinated and grand kids too.  Irony is one of my kids is allergic to the Tetanus Vac.  

      •  a huge gift to us for the mid-terms! (5+ / 0-)

        All that's needed is to amend RFRA along the lines of "nothing in this Act shall have the effect of contravening the ACA or public health statutes or regulations..."   (The latter verbiage to ward off anti-vaccination CTers, who will no doubt be lining up under the HL ruling to foist more measles and whooping cough upon the general public.)

        We can do this if we fix Congress.

        This one is ours to win or lose.

        We got the future back. Uh-oh.

        by G2geek on Mon Jul 07, 2014 at 07:12:36 PM PDT

        [ Parent ]

    •  I'm pretty sure ... (3+ / 0-)

      there actually is no statute preventing the President from appointing additional Justices. The number of Justices have varied over the years, though the reaction to Roosevelt's "Court-Packing" scheme has seemingly fixed the number at nine.

      Some legal scholars think that any odd number is bad, because you then get decisions like Hobby Lobby, where a 5-4 decision can make major changes. With an even number (4-4 or 5-5), split Courts would retain the status quo.

      If we get Dem majorities in the House and Senate, maybe they could pass a resolution saying that they approve of Obama appointing a 10th Justice. That would make it more likely that the nomination would get past the Senate.

      •  28 U.S.C. § 1 provides (6+ / 0-)

        "The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum."

        •  I would also add that the constitution specifies (3+ / 0-)
          Recommended by:
          MichaelNY, HSans, cspivey

          that congress has the power to set the number of seats on all federal courts, from the USSC on down.  It isn't 9 by custom, it is 9 seats by long-standing law.

          FDRs court-packing plan was only a credible threat b/c he had substantial majorities in both houses of congress at the time, and could have very easily amended the statute setting the number of seats.  

          Sometimes, i think we'd be better off with a 15 seat bench. More diversity of views, less able to have one block of justices always determine the outcome, more frequent retirements/turnover.

          Even a single lamp dispels the darkness. --Gandhi

          by My Philosophy on Tue Jul 08, 2014 at 01:23:57 AM PDT

          [ Parent ]

    •  Number 3 seems doable. (5+ / 0-)

      That's why my focus is on registering people to vote and getting them out there voting every election year - not just every 4 years.  This isn't a fix that with happen in one election but over the course of several elections (midterms included).  The idea of having to deal with Roberts and Alito for another 3 or 4 decades ...ugh!  Let's make them a "rump".

      This is a long game folks.  So dig in.

    •  FDR tried option No. 3 (1+ / 0-)
      Recommended by:
      MichaelNY

      It was called "court packing" and it not only failed, but he got a lot of criticism for it.

      Optimist: The glass is half full
      Pessimist: The glass is half empty
      Engineer: The glass is designed to hold twice as much as it needs to
      Spiritualist: The glass is half full of water, and half full of air. We need both to survive
      Source unknown

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