If Trump Wins Re-Election - Will It Be The End Of America?

[JackDaw]

The way the Supreme Court is set up, it has the power to declare the Law itself illegal.

Theoretically it could...I suppose, for example, there could be a legal argument that any law allowing abortion was unconstitutional in that it went against the right of a (potential) human to pursue life, liberty, happiness...

But realistically is that remotely likely? And if it happened it would guarantee court packing as a prelude to court reform.

[Kirby101]

Theoretically it could...I suppose, for example, there could be a legal argument that any law allowing abortion was unconstitutional in that it went against the right of a (potential) human to pursue life, liberty, happiness...

But realistically is that remotely likely? And if it happened it would guarantee court packing as a prelude to court reform.

At least 3 and perhaps 4 Justices now want to rule exactly that. It is very likely. And at the least, with Barrett, the Court will allow States to outlaw all abortion.

[DrNewGod]

... at the least, with Barrett, the Court will allow States to outlaw all abortion.

IMO, this is the most likely scenario. Many states have elected supreme courts, and in red states, those courts have tended to support very tight restrictions that essentially ban abortion indirectly, only to get slapped down at SCOTUS. Look to see those states try it again, and SCOTUS refuse to hear the case.

What's more, sooner or later, one state will sue another over a minor going into the defendant state because they can't get an abortion at home. That's when the sea is going to get really choppy.

[Kirby101]

Make no mistake, Thomas, Alito, Kavanaugh and Barrett want to rule that embryos have rights, thereby making all abortion banned for Civil Rights. It is just a question of Gorsuch and Roberts.

[JackDaw]

Make no mistake, Thomas, Alito, Kavanaugh and Barrett want to rule that embryos have rights, thereby making all abortion banned for Civil Rights. It is just a question of Gorsuch and Roberts.

If it panned out that way, do you think it would ultimately lead to the 2 houses seeking to change the Supreme Courts powers?

At a philosophical level I suppose the question is “what is the source of law?”

For a non believer like me..I immediately rule out the Mysterious One..and it is simply a matter of which human agency is the most appropriate source.

Given the choice between 9 unelected humans..or the two elected houses acting in unison..I will take the 2 elected houses every time in spite of their grievous faults...for me the most satisfactory primary source of the law is the united will of the people, expressed via elections

[Username taken]

If it panned out that way, do you think it would ultimately lead to the 2 houses seeking to change the Supreme Courts powers?

At a philosophical level I suppose the question is “what is the source of law?”

For a non believer like me..I immediately rule out the Mysterious One..and it is simply a matter of which human agency is the most appropriate source.

Given the choice between 9 unelected humans..or the two elected houses acting in unison..I will take the 2 elected houses every time in spite of their grievous faults...for me the most satisfactory primary source of the law is the united will of the people, expressed via elections

That’s where “court packing” will become a reality.

Because it doesn’t make sense to have a court filled with judges that was elected by a President that doesn’t represent majority of the country.

[Revolutionary_Jack]

The Supreme Court isn't all powerful or permanently incapable of challenge.

Dred Scott is the operative example. The SCOTUS had an exalted reputation in the run up to the Civil War, and Taney intended Dred Scott to permanently settle the question of slavery in America. And that ruling was so awful, as its dissenting judge pointed out, so historically baseless, that it started the process of settling the question of slavery the other way than Taney intended. Dred Scott is the operative example of a SCOTUS ruling going so far outside the American public opinion that it ends up delegitimizing the court and bringing to office a POTUS who decided to pack and expand the court and outright refuse and challenge the Court's interpretation of the Constitution.

Roberts has often cited Dred Scott and Taney, so he and other Republicans are careful to screw over the people in cases and issues and snipe from the side rather than gutting stuff openly. With a 6-3 Majority under a prospective Dem Senate and Dem WH, I expect Roberts and others to bide their time...so for instance I will be supremely suprised if the ACA decision set to come to the SCOTUS post-election goes their way. But a major Voting Rights issue (a law that is Robert's white whale) is and that might be the Dred Scott moment for this GOP SCOTUS.

The Democrats and others need to inform people and publicize SCOTUS decisions to make this immediate and generate outrage over it. Dred Scott was one of the rallying cries that sent Lincoln to Washington, and while I don't think one can morally equivocate slavery with other issues...it's a way to generate outrage of a like nature.

[Kirby101]

If it panned out that way, do you think it would ultimately lead to the 2 houses seeking to change the Supreme Courts powers?

At a philosophical level I suppose the question is “what is the source of law?”

For a non believer like me..I immediately rule out the Mysterious One..and it is simply a matter of which human agency is the most appropriate source.

Given the choice between 9 unelected humans..or the two elected houses acting in unison..I will take the 2 elected houses every time in spite of their grievous faults...for me the most satisfactory primary source of the law is the united will of the people, expressed via elections

I think the GOP is making Court expansion inevitable.

[Revolutionary_Jack]

I think the GOP is making Court expansion inevitable.

To paraphrase JFK, those who make non-partisan SCOTUS impossible make court packing inevitable.

[DrNewGod]

If it panned out that way, do you think it would ultimately lead to the 2 houses seeking to change the Supreme Courts powers?

At a philosophical level I suppose the question is “what is the source of law?”

For a non believer like me..I immediately rule out the Mysterious One..and it is simply a matter of which human agency is the most appropriate source.

Given the choice between 9 unelected humans..or the two elected houses acting in unison..I will take the 2 elected houses every time in spite of their grievous faults...for me the most satisfactory primary source of the law is the united will of the people, expressed via elections

IMO, it would take a constitutional amendment to alter the court's structure or its influence. I have a hard time imagining one getting through on practically anything, and absolutely not on SCOTUS.

[Jim Kelly]

Do the states in the United States have something like a notwithstanding clause that allows them to do things against the Bill of Rights? In Canada, provinces can use the notwithstanding clause in section 33 of the 1982 constitution, to circumvent matters in the Charter of Rights and Freedoms (upon which many Supreme Court decisions depend).

CANADIAN ENCYCLOPEDIA:

The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years. Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe. Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause.

I thought "states' rights" was a big issue for you guys and the Republicans are supposed to support the rights of the states to do as they please, rather than bowing to Federal edicts.

[Kirby101]

No, the Bill of Rights and the entire Constitution is the overriding law in all the States. Often State laws are overturned om Constitutional grounds.

"States Rights" is code for allowing discrimination. It is something they claim the Civil War was fought over to divert from Slavery. Either way the treasonous South lost and States law don't supersede Federal law.

There is leeway for States to have laws that don't go against the Constitution.

[Scott Taylor]

Make no mistake, Thomas, Alito, Kavanaugh and Barrett want to rule that embryos have rights, thereby making all abortion banned for Civil Rights. It is just a question of Gorsuch and Roberts.

This isn't some kangaroo court where they can just dictate things, though. There actually has to be a sound legal argument based on precedent. Every single SCOTUS decision has laid out a case using precedent and sound legal arguments, if you go through the history of their decisions. Nevertheless you can have disagreements (see - Plurality Decisions). Also majority opinion, dissenting opinion, concurring opinions.

Even if those conservative judges wanted to just sit there in power like Judge Dredd and declare "no more abortions" - its really not possible for them to do that. I just think too much focus is made on the court, and its largely due to conservatives making it such a focus for all the wrong reasons, not accepting that by design its a secular court that makes secular decisions.

State courts are a different matter and get confused with the SCOTUS at times. A state court can make some pretty whackadoodle judgements, which is why we see odd racist legal shenanigans that no one understands in places like Alabama.

[Kirby101]

Scott, if you just read the recent Kavanaugh opinion on voting, you can see that is not true.

There has already been the groundwork laid for outlawing abortion by places like the Federalist Society. Barrett has written about the basis for outlawing abortion. This is why she was put on the Court.

Barrett, Thomas and Alito have all said Roe can be overturned.

[Scott Taylor]

Scott, if you just read the recent Kavanaugh opinion on voting, you can see that is not true.

There has already been the groundwork laid for outlawing abortion by places like the Federalist Society. Barrett has written about the basis for outlawing abortion. This is why she was put on the Court.

Barrett, Thomas and Alito have all said Roe can be overturned.

I'll take a look at the Kavanaugh opinion. I'm no lawyer but hopefully I can see the same thing you are seeing.

There is no way it would overturn RvW, even though that term gets used. RvW is always going to be on the books. The way it is practiced might be modified, however.

We'll see. The SCOTUS would still have to have a case set before them that gives them a reason to address the specifics of RvW. While that is possible, they still aren't the legislature, developing and approving laws. Even if four of the judges somehow modify RvW, that opinion would be tempered by the minority members, resulting in a plurality decision. A compromise. Its not so cut and dried.