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There's a little bit of smearing, but I happen to think (and it seems to some extent you agree) that a fair amount of it is self-inflicted. I trace unhappiness with the court back to perhaps the original sin, Citizen's United, which to me seemed like a needless own-goal pretty much everyone disliked. Which is remarkable, because normally you'd consider Bush v Gore to be the big source of unhappiness, but the Democrats seem to have took that one in stride. How different it looks now.
In terms of scandal, the Kavanaugh hearings weren't that much worse than Thomas'. The nomination drama behind Garland and Gorsuch was a bit dirty, but nothing that got me quite as enraged as some people on the left. However, financial scandals were just a matter of time to come to light, like the -- I went back and counted, there are at least eight billionaires -- who have some degree of suspicious links to Supreme Court members. And don't get me started on the "we don't really need an ethics code". Uh, yes, you kinda do. This is a very severe challenge to legitimacy. And back to jurisprudence, there wasn't necessarily a strong reason to overturn Roe, Hodges was broadly popular but certainly a major event, and as a Supreme Court you do have a certain amount of political capital and around that point they really should have gotten the memo that they were stretching it to breaking. Rather than wait it out a little longer, they are charging ahead with things like the looming, presumed causer of chaos: Chevron doctrine revisited. On top of the Trump things, of course. Not intervening in the Florida case the judge there is clearly sandbagging was a big deal to me personally but I don't think that will echo much farther.
Yes, a few are aware of the legacy aspect. Roberts certainly is. However, I get the sense that Alito and Thomas are a bit "damn the torpedoes" right now. Barrett might be having second thoughts about things. It's harder for me to get a bead on Gorsuch and Kavanaugh. I think it's also Kagan who has been a little abnormally vocal out of court as well?
My impression of the financial things were that it was Thomas just coming along on trips with his friend, and that this was mostly just lefty journalists looking for any means possible to discredit the court now that it's making rulings they don't like. That said, I get trying to avoid the appearance of impropriety.
I'd pin Dobbs as the thing that most hurt their reputation in the recent past, though I'm not certain of that.
That said, you certainly are right that some of the justices are not making their decisions in order to placate public opinion, but to accomplish their agenda. But has Thomas, for example, ever done otherwise? I think they're mostly just honest, if motivated.
Yeah, it's tough because reading all the ProPublica reports, it seems Thomas and Crow are like, legitimate friends. I do feel strongly about appearance of impropriety being the standard to shoot for, though, so... yeah. I sympathize with the difficulty of having to be really fucking careful about who your friends are, but at the same time I feel like yeah, they DO need to be really fucking careful who their friends are. Otherwise maybe turn down the nomination. I'd love to see some of that happen once in a while.
I mean my fundamental bias but one I'll defend is that these guys are just people. People are usually relatively honest and normally motivated. I will say that if for decades you are taking ultra-luxury trips, but in the back of your head you know if you piss them off too much they might stop, that kind of thing does tend to distort thinking just a hair. And there's no way you're taking weeks and weeks of vacations with people and you never talk politics? Ain't no way.
What I saw one article advocate for, I'd love for it to be the case, is to ask actual questions, high-quality ones that are answerable, in the confirmation hearings to try and get a better sense for some fundamental values and styles of different potential justices. Things like these (not a perfect list) that include stuff like when was the last time you changed your mind? What's a bias you struggle with? What kind of effect would you like to have on the court? Could you explain more details on why you lean originalist/textualist/etc?
I suspect the court will be fine. I would go nuclear is court-packing or something similar happened, no matter who. I strongly, strongly advocate for what the conversation should really center on: Maybe let's talk about some Constitutional Amendments to the Supreme Court process? I'm open to that. Would necessarily need to be bipartisan. In practice, I'm not super sure what it would take (if even possible) for the GOP to get on board something like that however. Maybe make some sort of general, government ethics amendment?
Yeah, I don't imagine any concessions from Republicans unless forced to it. They've finally managed to get a hold of the court, after nearly a century of leftist control, and now, all of a sudden, it's everyone's talking about how the justices (but only the conservative ones) are corrupt, and how the court's extreme and biased (never mind all the different splits), and that the court needs to be reformed. There's something of a double standard. (And I do genuinely think that the conservative justices are less likely to make decisions from their political views, because they have more of a judicial philosophy of the senses of the text already being set in stone, not just what they want it to be.)
Regarding propriety and trips and so forth: I'm kind of torn over how seriously this should be taken. It's obviously politically motivated and going looking to do harm to the justices that they hate, and I'd be very surprised if there were anything nefarious going on. I'd certainly not expect him to be influenced by money; he seems to always be ruling for his own, radical in its lack of regard for precedent, vision of what the constitution said, often alone. I certainly imagine he talks politics with Crowe, but I'd be surprised if that affected his jurisprudence, as he doesn't just rule according to whatever suits current Republican preferences. And I don't know that I think it's all that good of an idea to reward bad action from the left like that, when I'm pretty sure that it wouldn't have affected anything. I'm curious how general the recent lesson is about other figures on the right, that you can ignore cancellation now, so long as you have a conservative base, and you don't treat the problems as serious just because your opponents treat them as serious. That is, I don't know if treating them as real would simply serve to undermine tte court's credibility by there being a consensus that something is wrong. At the same time, it would genuinely be better if there wasn't this that could be used to attack them.
I also like the questions, but I don't know how well they would be applied in practice. I anticipate that those in Congress would use them in order to probe for weaknesses to jump on, and so the judicial nominees would try to answer in ways that said the least that they could be attacked for, instead of seeking to be the most revealing.
For the reasons above I'd be hesitant to go along with a push to constitutionally reform the court—capitulating would give credence to the complaints and make people more likely to think that the court is currently bad, when, in my view, it's the best court we've had in a long while. If it would genuinely make it hard to complain about the court, I'd be for it, but I don't expect that, and would anticipate the opposite. I'd also worry that something like term limits would serve to further politicize the court, by enshrining in law something intended to balance the court in a partisan manner, instead of just assuming that everyone has an obligation to be fair interpreters.
Something of a double standard, maybe, but not all the way. Right-wing people for years have complained about the Court doing too much that is legislation-adjacent, doing outright activism, or imposing liberal social values, and those arguments were accompanied by arguments about maybe not corruption as explicitly, but certainly ideological capture and bias (claims that all the liberal colleges are brainwashing law students, and I think there were complaints about lifelong appointments too). We have conveniently forgotten these argument simply because they haven't happened as loudly recently, but I do remember them! They probably aren't exactly equal to current complaints.
I like your comment and the thoughtfulness there. It's possible my dream of avoiding even the appearance of impropriety is unrealistic, but I don't think so. Ideally, court reform conversations would be actual conversations, where we can talk about exactly this sort of thing like "are term limits even going to be helpful, or would they backfire?" This can cause us to rationally examine what parts of the SC do and don't work. We might find some parts actually DO work better than the public thinks, in the process. In other words, I think opening reform as a valid discussion would result in more light than heat. There's already plenty of heat and I think legitimizing the discussion might be a good release valve. Related: somewhat unusually, I don't love the idea of term limits for Congresspeople, I think it would only worsen the revolving door, and ignores how lawmakers also gain positive experience and specializations over time. Monetary reform for campaigns and politics generally might be a better Amendment candidate. Or simply pushing for better stock divestment, etc.
The idea behind the questions is that the current questioning process is relatively effective about determining left-right axis location, but not very effective in determining the other axes. As shown in some of the discussions here, many justices form their own brands, and there's stuff like the 3-3-3 split. Maybe better questions can allow the Senate to be more predictive in locating a nominee's position on other axes besides the simple and often ill-suited ideological one.
Allow me to take back the concessions I made on Thomas.
Fix the Court gives me the vibe of a one or two person outfit with strong personal views. I think they were and are an okay starting point for tracking recusals more broadly, which was my reference. I don't think I ever used them as a source, and probably would not use them as a source, for more of the in detail financial reporting about gifts. ProPublica is a stronger team and I think they are doing good work that's fairly evenhanded. They usually state what they know and approximately how certain they are (e.g. they will say if they looked at direct proof, it's hearsay, they found corroboration of trip, etc.) I've read almost all of their stuff all the way through, and a few counterclaims all the way through as well. Now don't get me wrong, it's not like they are saints without an agenda. But I feel they typically adhere to decently good journalistic standards, near as I can tell.
IMO, the link provided does a guilt by association trick, combined with a strawman. It talks about FTC almost the entire article, when they aren't really the experts nor the original source for most of the scandal claims. In fact I expect FTC to have errors. ProPublica less so. What it says specifically about ProPublica, a drive-by broadside right at the end:
I happen to know exactly what they are talking about in the second article. The article cited refers readers to some of the earlier reporting and assumes readers read those. The original reporting that first broke the trips went into extreme detail about exactly what the rules and laws were about trips (which often differed) and the ethical debate behind them. I think they thought, and I partially agree, that re-treading the same ground in an article framed explicitly as an update to a previous story was less necessary. The update article cited is only like two pages. The original investigation was something more like 20 pages. Obviously the original can go into more detail. And in the original articles, you can clearly see that they advance the (substantive!) argument that rules allowing transportation to not be disclosed are not only something that seems unethical to the average person, but furthermore, cruises and yacht trips are not only transportation, they are also lodging. Again, I refer you to my argument that we want to hold SC justices to a "appearance of impropriety" higher standard, which is not just my projection or wish, it's the explicit policy goal of the Supreme Court ITSELF. Why would it be bad to hold them to their own moral standard?
The inclusion of a single error also deliberately ignores quite a few cases where, as PP mentions, they actually did find legitimate issues that various Justices later fixed. A single error on a single trip does not discredit the reporting. Most of their reporting focused on a few other examples where more info was available. For example, the numerous luxury retreats. Or the New Zealand yacht trip that did happen, and wasn't disclosed, and we know for a fact this happened because, among other evidence, we have a photo of Thomas' handwritten thank you in a book he gave to a yacht worker mentioning the trip. And finally, a smear is not a smear if... it's true. Their main point is that there is no enforcement mechanism for ethics rules, that at least some justices are skirting common-sense disclosures due to rule technicalities, and the fact that we can only find out about these concerning things via extensive and laborious investigation is, yes, concerning for everyone!
Good points. I imagine propublica is of course motivated and lopsided in attention given, but that makes sense that their work would be better quality.
And, thanks for always being reasonable.
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You're right that there were complaints both ways about judicial activism. I happen to think the left does more of it, and is more openly motivated by whatever they want to be true, but fair enough.
I think more policy conversations in general would be good. But how would you propose they happen? I think, perhaps unusually in our history, though I'm not sure about that, a lot of politics is governed by the lowest common denominator: whatever appeals to the most people online, oriented towards their respective bases. (That's not exactly right, but close enough). How do you manage a constructive conversation like that? You could have one, but you'd have to avoid making it about scoring points. I'm sure some politicians are sincere enough and sufficiently non-cynical to do this. But even then, you'd still have to make it be something that reaches the collective consciousness to get traction, unless you can manage to get enough behind the scenes. But it's popular legitimacy that matters mostly when we're looking at it from the view of the polarization of the discourse, not what Congress, for example, thinks, so behind-the-scenes isn't quite what we're asking for here.
I like the Free Press's debates, even if there used to be better debates.
Good point regarding questions. Having them asked by a sympathetic person would help.
Ideally, we would hold some sort of convention in total secrecy, then the convention would release a list of possible proposals for reform and ask the public which option they would prefer. We could then have a period of public parlor talk and debate. If the big parties avoided immediately staking out a stance, I think there would be a decent chance of people selecting a favorite. The convention system is sadly almost never used anymore, but can be very effective.
Ah, conventions would help. Hardly anything else could get the requisite solemnity.
Some difficulties: it requires people to work together, and in an age of the internet, complete secrecy is hard to maintain.
And of course, whether online partisans will promptly polarize the question.
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Why it rings hollow to me is there wasn’t the same concern over Sotomayor taking millions in advances from a publisher while not recusing on a case that they directly were involved in. That is, the complaint about Thomas seems politically motivated. The ones about Alito are just silly (and we did learn that you should find someone who loves you the way Mrs Alito loves flags).
According to Fix The Court which has a nice list of missed recusals and seems to be pretty evenhanded, this happens a fair amount, more than I'd like. An earlier case, according to details I see from them (but opinions and speculation my own), possibly was missed due to the publisher being Knopf by name at the time, which in reality was a subsidiary of Penguin who was named. Beyond that, it appears many justices simply make long sheets of specific companies, and don't always update them correctly nor properly do their due diligence in looking deeper. For example, in the more recent publisher example, Gorsuch also failed to recuse for the same reason, and Breyer accidentally recused because his list was out of date!
I feel strongly about reform but am pretty clear eyed about the recent stuff being dramatized. I thought it was in this thread, but I guess not -- the Alito stuff as I've said is garbage and that was clear pretty early on. While you could say "maybe they are picking on Thomas specifically" they have found enough unrelated and significant ethical lapses I'm convinced, and think it's pretty clear to those who have investigated, that there's an actual pattern there.
What I’m saying is if I thought most of the criticisms were actually concerned about the integrity of the court, then I wouldn’t have as much an issue. But as it is, I think the vast majority of the criticism is simply people who don’t like the court’s rulings looking for ways to undermine the court.
I see the left do this all of the time. When they controlled the court, it was sacrosanct. The moment it switches hands, we start hearing about its legitimacy. Republican attacks on the court historically were about theory of law; democrats aren’t talking about theory of law. Democrats did the same thing with Twitter and Elon. Once he unlocked a major communication platform from their grip, Elon became a far right racist. Funny how that works.
That's fine. I've observed that I'm more likely than most to be willing to examine arguments made in bad faith in spite of them being made in bad faith. Partly because I don't think bad faith is as common as popularly perceived, but also because I'm skeptical that most people can safely and accurately enough tell the difference. It's through this lens that I'm sympathetic to current court criticisms. Related: persecution complexes. Doesn't mean the persecution isn't real, but it does tend to distort perception. I genuinely believe that the right has a persecution complex far beyond anyone on the left, except for maybe Marxists.
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It's so obviously grasping at Straws. Thomas has been over of the most ideologically consistent justices in modern history, there is just no good evidence of him throwing cases in any way. It's this weird mistake theory belief that no one can believe anything different than what you believe, so if anyone acts like they believe it there must be corruption involved.
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Can someone help me understand the continuing opposition to Citizens United? I didn't pay a lot of attention to Supreme Court news back in 2010, so I wasn't following the details of the controversy. But I remember the kerfluffle around Alito (allegedly) mouthing "not true" when Obama said, during a state of the union speech, that the ruling would "open the floodgates for special interests, including foreign corporations, to spend without limits in our elections." But the Supreme Court's ultimate decision seemed so obviously correct that I'm amazed it was ever disputed at all--and the fact that, years later, some people continue to consider it an egregiously bad opinion is totally baffling to me.
Here's my quick and dirty understanding of the constitutional issue in that case (please correct me if it's wrong): Citizens United was a nonprofit corporation that made a documentary video criticizing Hillary Clinton. They wanted to 1. show the video on cable TV and 2. advertise the video on cable and broadcast TV. The Federal Election Commission wouldn't let them, because federal campaign finance laws prohibited corporations and unions from spending money to advocate for or against a candidate in an election. The Supreme Court ruled in favor of CU, finding that the provisions of the federal statute in question constituted a ban on political speech and were, therefore, unconstitutional.
Isn't this ... obviously right? Like, if "freedom of speech" means anything, it has to mean that advocacy groups can publish a criticism of a politician. The FEC's counterarguments all seem really lame, like saying the First Amendment doesn't apply to corporations because they have too much money (what if they don't? And what about rich individuals--are they unprotected by the 1A too?), or because their views don't necessarily reflect the views of the public at large (since when does that permit restricting someone's speech?), or because some shareholders might not agree with the corporation's position (which is equally true of media corporations; does the 1A not apply to "the press"?). I really struggle to see how anyone could agree that these arguments justify the FEC's position. On the other hand, the idea that Congress can ban political speech--the most important kind, for First Amendment purposes--about a presidential candidate, no less--just because the speaker is a body of multiple people joined together, rather than the same people acting alone--seems both arbitrary and clearly unconstitutional. (Especially in the guise of campaign finance laws, which in my opinion should have some connection to, you know, financing someone's campaign, rather than restricting independent criticism of a politician.)
I like to think that the Obama-esque critique of CU is more sophisticated than just "corporations BAD!" But that seems to be the thrust of both Obama's SOTU soundbite and, from what I've read of it, Justice Stevens' dissent. (Stevens also complains that the Court went beyond the narrow issues raised by the parties, but I guarantee you that's not why people are still up in arms about this case years later.)
Well, nonprofits are NOT fundamentally different than companies. In terms of the deep fundamentals. I know they are in practice, but in theory, I feel strongly this is not the case! We choose as a society, and as a government, to let them be a little more free with how they raise and spend money because we think that they can bring some social good by doing so, and feel bad about making that super hard for them. Thus we allow them to avoid taxes and certain regulations, often in exchange for following other, different regulations to make sure they actually are categorized correctly. These categories are defined by law, not by any fundamentals.
It's worth taking a second look at good old Amendment 1:
Note that things we consider nonprofits do not in fact line up clearly with the Constitutional categories stated here. Churches are kind of the same thing as Religion, but not entirely! We choose to treat many as nonprofits. How much is convenience, how much is moral arguments as above, and how much is force of ultimate law? Of course note that the Religion bit comes with a different vibe, where it's bad to prohibit free exercise, and they can't establish religion, but presumably there is some sort of sense that mild restrictions on churches might not necessarily prevent free religious (individual) exercise, though by and large we have chosen not to go there. The Press is kind of a bunch of news corporations, but some are nonprofit and some are for profit. Free Speech is something that can't be abridged, and this is connected with the Press stuff via punctuation, but also a bit of a different point, often taken individually. Note that lawyers and scholars have built up some other common law stuff around these, so the text isn't exactly self-sufficient (many free speech exceptions exist despite the language being, on its face, pretty clear: NO ABRIDGING) and caution is warranted to not get too carried away.
Overall however, it's clear The Press is clearly something special and different. I'm not familiar enough with the legal distinction, though maybe I should be. When we talk about corporations, however, we are back to the whole idea that you correctly called out about associations of people. This is tricky. The sound bite that this declared "corporations are people" is not too far off. You seem to agree that functionally speaking, corporations are similar enough to people that we might as well treat them as people (for free speech purposes at least).
It's treating presumably individual rights to apply to big groups of people with no critical thinking involved at all, in the opinion of detractors, that is one holdup. What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company? If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect? Another counter-argument was more of a common law objection about corruption. If a person has and spends a lot of money, maybe that's fine, but if they spend it in a way that is less close to "I have a political opinion" and more close to quid pro quo stuff, maybe that's less fine? Accordingly, you might notice a few precedent cases called into question by the decision included some explicitly about this very issue, collisions with anti-corruption legislation (which in a common sense and common law direction is going to be given some weight). In other words, spending money isn't quite equivalent to speech, it really, really depends on what the money is for. In fact, the SC still distinguishes between direct and indirect (i.e. PAC) contributions AFAIK for only this reason, the corruption potential, though the practical implementation of this leaves... something to be desired.
tl;dr;be less talky: All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.
Thanks for the response. I agree that nonprofit vs. for-profit corporations is not really a relevant distinction ... but Citizens United did not rely on that distinction, so it doesn't have anything to do with the outcome of the case.
Not that clear, actually. There is a live debate about whether the "Freedom of the Press" clause protects "the press" as an industry (professional journalists, newspapers, and media corporations) or "the press" as a type of speech-related activity, which anyone can do. The linked article argues for the latter interpretation, which I think is clearly the better view.
SCOTUS expressly held "We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process ... Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process." In other words, SCOTUS did not address whether Congress could restrict corporate speech based, specifically, on foreign ownership, but since the statute in question applied to all corporations, the statue was not "narrowly tailored" to that concern.
The Court addressed, and rejected, that argument on the following grounds: (1) it applies equally to media corporations, and nobody believes the government should have the power to restrict political speech by e.g. newspapers; (2) there's little evidence such abuses could not be corrected through the procedures of corporate democracy; (3) the statute in question is clearly inadequate to address such concerns, because those concerns implicate all speech in all media at all times, but the statue only applies to certain kinds of political speech, in certain media, at certain times close to an election; and (most importantly, IMO) (4) the statute is at the same time overinclusive--again, not "narrowly tailored"--because it covers all corporations, including those with only a single shareholder. I think these points add up to a pretty compelling argument that the statute in question was "narrowly tailored to address a compelling government interest," but, again, it left open the possibility that Congress could pass a narrower law that would satisfy the constitution.
This issue was also addressed by the court, and found wanting. The big reason is that CU's spending was an "independent expenditure"--it did not give any money to any political candidate, nor to any political party, nor did it coordinate with any candidates or parties. It didn't even endorse a particular party or candidate; it just criticized Hillary Clinton. If CU's spending could be construed as a quid-pro-quo, so could just about any form of political advocacy. Obviously, politicians probably appreciate it when private parties (corporate or otherwise) are critical of their opponents, and unscrupulous politicians might even be tempted to show favoritism as a result--but that clearly doesn't justify Congress banning independent criticism of political candidates!
If by "common sense conflicting with the actual meaning of the law", you mean that ignoramuses misinterpreted, and continue to misinterpret, the Court's "probably correct" decision, I suspect you are likely correct. And in the sense that ignoramuses, in this matter and many others, vastly outnumber those who actually know what they're talking about, I agree that the decision was likely not "broadly popular." But I don't agree that SCOTUS perpetrated a "needless own-goal," in your words, by arriving at a well-reasoned and probably correct decision, just because it was misrepresented and misunderstood by left-leaning pundits and their gulls.
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You are conflating nonprofits, which are simply ordinary corporations structured in such a way that profits are not returned to the shareholders, and charitable organizations, which are a special subset of nonprofit corporations to whom donations are deductible from income for the purpose of income tax calculations. I agree that this is primarily a legislative distinction and not a constitutional one, though the unique status of religions as organizational entities complicates things.
This I strongly disagree with. "The press" (note not capitalized, as in the original) at the time of the Constitution did not refer to institutional media corporations and accordingly they should be given no special constitutional protection. This vernacular meaning did not really come into existence until the 20th century. "The press" referred to a type of technology, to emphasize that freedom of speech didn't apply only to oratory. It definitely did not mean a class of people or corporations.
Yes, it's likely my capitalization and description was a bit misleading on the press point. I wasn't rigorous enough because I felt it wasn't strictly relevant to my overall point, which was more about how "associations of people" and their money use being distinguished as different types is purely a legislative and societal artifact (unless it's corruption-adjacent or the like), and not a Constitutional or rights issue, with the caveat that yes, churches are a special case we often tip-toe around. Well, traditionally. Turns out most people haven't thought about why churches are traditionally tax-exempt at all, or if they have, it wasn't very thought-through (reddit, cough).
Also yes, typically when you say nonprofit people think 501(c)4, and that's what I was rolling with, but you're absolutely correct 501(c)3 and other variants exist. Thanks for bringing up the clarifications.
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The issue wasn't that they made a movie, or that they wanted to show it on TV, but that they paid Comcast a ton of money to make it available for free on-demand. Considering that, most of the time, networks pay the creators to air their media and not vice-versa, this made it look more like a political ad than a normal documentary. I agree that the decision was correct, but the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations. They can't endorse actual candidates, or coordinate with campaigns, but they can run the kinds of relentless attack ads that actual campaigns have been running as long as I've been alive.
This seems to be a common view of the outcome of the decision, but Justice Stevens' dissent makes the point that Citizens United could have poured unlimited funds into publishing and promoting the movie through a PAC without violating the statute. He argues that CU only violated the law by funding the movie through from their corporate treasury, rather than through a PAC. That's a big component of his argument that the 1A wasn't violated; he says the statute didn't ban CU's speech, it just diverted that speech through a different mechanism.
Which, if correct, makes the outrage over the CU decision even more puzzling. None of the critics of CU seem to be saying, "Unlimited campaign finance spending by corporations is just fine, actually, as long as it's done through a PAC rather than the corporate treasury!" That's why I still feel like I'm missing something.
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This seems like a remarkably poor argument. One of the most obvious characteristics of advertisement, relative to other forms of media, is that the people they are supposed to be consumed by aren't demanding them. If I make a movie and offer to pay the theatres to screen it for free, that is very, very different from me making an ad, and paying the theatres to play it before the movie other people actually want to see. As a general rule, ads are not made exclusively and intentionally for optional viewing.
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Well this itself is pretty contradictory to the whole idea of freedom of speech anyways. So its kinda a feature of the 1st Amendment. The problem with CU is it split the baby instead of negating all federal campaign finance law.
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Seconded.
One of the few times i can recall actually having my mind changed in an internet argument was somone making the argument that CNN, the Washington Post, FOX News, Et Al were all corporations and if "freedom of the press" didnt protect them, who did it protect?
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The press misreported it for political reasons and people believed them.
I don't think the press even misreported it. The talking points were true. It did in fact allow unlimited money from corporations to be poured into political advertising. They just expected people to laugh at the absurdity of considering money (in the form of advertising and advocacy) to be a form of speech.
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Citizen's United? You mean the one where the court decided that making a movie about Hillary Clinton was covered under freedom of speech?
The same one where the government's lawyers argued that bureaucracies had the power to ban books if said books had even a single sentence of political advocacy. But only during election season. It's a limited power you see.
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In what way would you say that Citizens United was an "own goal"?
Described a bit more in another reply, but it was not only unpopular but felt like a violation of common sense for most Americans. Thus, theoretically avoidable and a candidate for a classic SC "punt" to the future, which have their place.
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It only seems like that now. The wailing and gnashing of teeth felt much like the 2016 election, and for an equally long time.
Virtually any (consistent) legal scholar will tell you that the original Roe decision was a major stretch. Yes, everyone was surprised it was overturned because public support for abortions is so high, but to say there's no "strong reason" isn't true. We're talking about the court's power being derived from social consensus - part of that, in turn, is derived from consistency and adherence to reasonable legal doctrine. They spent political capital to pay down what was essentially legal technical debt.
I agree with your stance on ethics codes and these free trips etc. For the most part. I don't see a strong enough connection between these conflicts of interest and results, and I've wined and dined enough executives who don't end up paying me for years to know that it takes two to tango when it comes to corruption. I'm not super well-informed here actually, but I also think that the standards for judicial asceticism seem to be a bit different depending on what side of the ideological divide someone falls on.
Notable that much gnashing was indeed had, but Kerry himself did not talk about it very often on the campaign trail, and "true winner" rhetoric was mostly confined to the fringes and/or typical media hyperbolizing. While "true winner" rhetoric is still mostly confined to GOP fringes today, (and hyperbolized in a different direction by the media) Trump himself is one of the most extreme proponents, despite the clear (and VERY inconsistent) logical gaps. That's worth mentioning.
I'm a compromise-first kind of guy, and when it comes to all the massive unknowns and ethical issues when it comes to fetuses and personhood, splitting the difference and saying "well too early is obviously more fine, and too late is obviously less fine, and in the middle these clash and it's super subjective, so let's just cover the basics and let the states do the fine details" is a fairly intuitive approach. It leaves people only mildly mad, and plenty distracted by the middle-fights, which means it only becomes partially an existential battle of core values/principles. Very practical, since personhood is hella NOT defined for us. Yes, in principle, it really should be a states thing because states get the non-specified situations most of the time in those cases. I merely point out that states already had a big say in the process, so to upend that and go "all right, we murdered the referee, go to town" seemed to me just a little... irresponsible.
ninja edit: minor wording changes in first paragraph
This should be the role of Congress however. To elevate this to the role of a Constitutional right, it needs some grounding in the text itself. It is not the job of the Constitution or the Supreme Court to mandate common-sense compromises across controversial policy decisions. That path only ends with the Court as a superlegislature and Congress relegated to the role of implementing their edicts.
Incorrect. It's not a specifically listed Constitutional right, but the Constitution also specifically says that other rights exist that they didn't mention. Please look into the ninth amendment, which was put in place to counter exactly the argument you are advancing. "Elevation" of a right, as you phrase it, the text says is explicitly not required in order for the right to be legitimate or exist as a right. Life is one of those things, where it's clearly a natural right (not to have people murder you), but abortion provides a tricky question in that you have a collision of two seemingly intuitive rights, when you have considerations about the mother as well in play.
And in fact a lot of these rights are specifically left to the states to sort out. Congress, eh, maybe? Personally I think no. The 10th has slightly different language, but seems to hint at this being the state's job specifically. A counterbalance, of course being equal protection stuff (14th), which traditionally is used instead because it's easier for a judge to talk about and more specific, and sometimes allows for federal action. There's further discussion on that issue, it's been a little while for me, but the general thrust of everything I've just said is well-grounded. So even though the ideal scenario, from a textual and legal perspective, is for the states to sort it out, it's also totally within the general realm of the Supreme Court's role to handle, and courts in general, though the last 100 years of history has been a bit uneven in that regard. Unenumerated rights are definitely a thing, so even if it's not totally clear who should be taking up the burden of reasoning through them, and I sympathize with your desire to leave it entirely to legislative efforts, it's also relatively okay for courts to do this, even if they are reluctant to.
Anyways, Dobbs does grapple with some of these issues. However, it did not necessarily need to. While Dobbs is a more correct, more firm foundation, I think on balance the practical and intuitive stability offered by Roe outweighed this. "Don't let perfect be the enemy of the good" type of reasoning.
Are there any examples of a court reading a right to exist from the ninth amendment? Not that I disagree in principle, but every time I've mentioned it in the past, people more knowledgeable than I have observed that it's never actually cited in practice. IMO this means that the Anti-Federalists were right: All the rights we didn't enumerate basically don't exist.
If I recall correctly, there’s a decent history of “baby ninths” that certain state constitutions will enumerate, and this occasionally bubbles up beyond state courts, but in practice it either stays on a state level, or when it reaches a federal level these types of questions are slightly better suited to the 14th amendment. It’s not that the 9th is irrelevant, it’s just often the more difficult path to legally argue and decide, so even when it’s relevant it’s rarely used directly. I’d say that we certainly have specified other rights over the years, but the worry about only enumerating some rights, putting them on a pedestal, definitely seems to have been born out.
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