Fawn over? I don't even really agree with Thomas' decision. I think both arguments on the issue decided in the Thomas decision are reasonable. That's often the case in these matters. Which side won was not really the issue at hand - it was whether this was some ominous portent of doomL'Emmerdeur wrote: ↑Thu May 16, 2019 2:59 amSince your propounding on matters of law is inevitably roused in support of the legal reasoning of conservative ideologues, it's no surprise that you've chosen to fawn over Thomas's decision while dismissing Breyer's dissent. The problem is that Breyer does an effective job of eviscerating Thomas's specious claims regarding the basis of mandatory sovereign immunity as applied to states.
Breyer does a good job on his dissent - these are Justices of the Supreme Court - I've read hundreds of SCOTUS opininos and dissents. The dissents are almost always well reasoned and persuasive. Cases that make the Supreme Court's certiorari review are generally close cases. And, those that get appointed to the Supreme Court tend to be very experienced jurists who can write very well-reasoned opinions.
What's odd is that you seem to think the issue of whether an individual can sue the State of California in Nevada State courts is some sort of major political divide, with the evil conservatives wanting to evilly prevent people from suing one state in the courts of another state. And Thomas's view is of course, stupid in your mind, but Breyer is so well reason he "eviscerated" Thomas. Of course, if you read the dissent, Breyer acknowledges that the position Thomas goes with - which was the dissent 40 years ago -- was well-reasoned too, and may even have been the correct decision -- however, Breyer spends quite a bit of ink talking about how even if a decision is "wrong" that ought not mean the SCOTUS corrects its own error.
Breyer does a good job explaining why the older case should not have been reversed. However, Thomas addresses the test of when a case should be reversed, and he made a different decision. Breyer acknowledges in his dissent that reasonable jurists could differ on the underlying opinion.
You may be correct -- I'm not persuaded 100% by either side on this argument. However, that's not the issue as to whether this is some ominous portent of doom for opinions everywhere, that the majority may willy-nilly reject -- for example, Roe v Wade, which would not only require reversal of ONE opinion, but multiple SCOTUS opinions recognizing a fundamental right to abortion.L'Emmerdeur wrote: ↑Thu May 16, 2019 2:59 am
Nowhere in the US Constitution is there any provision for such mandatory sovereign immunity, neither is there any solid historical basis for it. Even Thomas's historical authority, de Vattel, says that sovereign immunity is based on consent and convention--in de Vattel's time it was conditional and not absolute. That principle still obtains in international law, which has in fact become more restrictive in regard to claims of sovereign immunity, not less. Thomas and the majority construct their doctrine of mandatory sovereign immunity for states by ignoring this and engaging in the same finding of implicit constitutional principles that 'originalists' and 'strict constructionists' like Thomas are supposedly so suspicious of. As this decision shows, Thomas quite happily finds unstated elements in the US Constitution when it suits his ideological agenda.
Further, there isn't a side on this that does not "find unstated elements in the US constitution when it suits his ideological agenda." Fuck, Roe v Wade itself is based on "unstated elements" -- it found a fundamental right to privacy "implied" by a couple amendments to the constitution, and there was no majority opinion as to where the right comes from, just that it exists in the constitution, even though it's unstated. To say that it's a problem to find something in the constitution that isn't expressly stated might hoist some folks on their own petard. That's why I don't ever say that something must be expressly in the constitution.
I have no principled objection to courts finding unstated elements in the Constitution, as long as it makes sense legally and constitutionally. For example, the SCOTUS found that the US federal government has authority over immigration, not just naturalization, yet that's not stated in the constitution. There is no right to vote for the President in the US constitution.
Now if you want to delve into the 40 year old opinion, and Thomas' new opinion, and argue about what technically the right decision was or would be, we can have an interesting discussion on that point. However, it likely will be tough for us to wind up much closer than "both sides have reasonable arguments" -- which is one of the things Breyer said in his dissent.
You've hit the crux of the differing judicial view as to what the immunity is and where it comes from. Generally, governmental immunity is held by the government and the government can waive it. What Breyer is saying is that Nevada can subject California to suit whether California consents or not. That's like saying that the Netherlands can let a suit go forward against the US in Netherlands courts, and the only way the US could assert its sovereign immunity is if the Netherlands lets it. The US can consent to be sued in some other country's courts, but it can't be compelled to do so just because some other country says the US doesn't have sovereign immunity.L'Emmerdeur wrote: ↑Thu May 16, 2019 2:59 am
There is also the question of infringement by the Supreme Court on the 10th Amendment. Breyer: 'Compelling States to grant immunity to their sister States would risk interfering with sovereign rights that the Tenth Amendment leaves to the States,' and 'While reaffirming Hall might harm States seeking sovereign immunity, overruling Hall would harm States seeking to control their own courts.'
Stare decisis hasn't been "thrown out." That's my point. Stare decisis is not a mechanical rule - SCOTUS can, and regularly does, reverse decisions. The majority in this case concluded that it should reverse itself. The dissent thinks it shouldn't. Both sides have rationale as to why it should or shouldn't. My only position on that was that it's not some sort of ominous portent of doom, hailing an era of reversals of settled SCOTUS precedent.
He does say that. Flat out.
That's the same thing as saying "even if the decision in Hall was wrong, it should be adhered to... scrapping it isn't justified by mere wrongness.
exactly - hence the use of the term "even if..." - I didn't say Breyer said Hall WAS wrong, I said he noted that "even if" it was wrong, it doesn't justify scrapping it. It's a common legal method -- assuming without admitting. Dispose of the opponent's argument by assuming a premise to be true, and concluding that "even if what you say is true, you still lose..."
Well, then you haven't read that many SCOTUS opinions. These are generally close cases, or they wouldn't make it to the SCOTUS in the first place. Where you have dissents, the opinions tend to address the issues raised in the dissent, and vice versa, so they tend to extend longer for that reason. They talk about the cases - that's why Thomas knows what the dissent is arguing and can address it in his opinion, and that's how the dissent knows and can address Thomas' view, even though the two opinions come out at the same time.
Sure and he makes a good point -- but "well reasoned" doesn't mean "the correct legal decision..." Both sides are well-reasoned.L'Emmerdeur wrote: ↑Thu May 16, 2019 2:59 am
The final paragraph of the dissent it telling:
It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so
far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next. I respectfully dissent.
A lot of people are on record as saying Roe was wrongly decided. It was an unusual supreme court decision at the time, and even today. I think the Daily Beast forgets that stare decisis has never been a hard and fast rule in the SCOTUS because SCOTUS doesn't actually bind itself, just like a President can reverse a past President's executive order and just like the legislature can't make a law which says it can never be undone (binding the future generations because they legislated first), the SCOTUS can and does reverse its own decisions. Stare Decisis is a rule of judicial restraint and caution -- such that the SCOTUS provides some framework for when and if it will reverse its own decisions. It's not been "scrapped."L'Emmerdeur wrote: ↑Thu May 16, 2019 2:59 am
I think that Antonin Scalia was correct (Thomas 'doesn't believe in stare decisis, period'). Instead Thomas specifically relies on his originalist understanding of the Constitution to claim that Hall 'failed to account for the historical understanding of state sovereign immunity.' While Breyer shows that claim is unfounded, Thomas nonetheless is a staunch originalist, if not a notably consistent one.
In any event, as Jay Michaelson writes:
Further, Thomas is on record stating that he believes Roe v. Wade was 'wrongly decided.' Given his willingness to scrap stare decisis in service of his ideology (and the conservative majority on the court's willingness to follow him down that path) there is good reason for those who support a woman's right to control her own body to be apprehensive regarding what might happen when one of the bullshit state laws outlawing abortion makes its way to the US Supreme Court.This [whether originalism/strict constructionalism should rule the day] is the central question in cases like Roe and Obergefell. No one denies that abortion was banned for much of our country’s history, and that same-sex marriage would have been anathema to the Founders of the republic. The debate is over whether history gets a vote or a veto.
If this same standard is applied to Roe and Obergefell, they would go down in flames.
A woman's right to "control her own body?" -- you can see the Daily Beast's ideology coming to the fore, and that's really where this is - a battle of opinion on abortion. And, the Daily Beast gets a couple things wrong right off the bat - first, Roe v Wade did not "permit" abortion, and Loving v VA did not "permit" same sex marriage. They ruled that the State government may not prohibit them -- it in no way permitted anything. States were always free to permit them. Also, with regard to abortion, Roe did not say women have the right to always control their own bodies -- men don't have the right to ALWAYS control their own bodies - nobody does. What Roe did say was that there is a right to privacy IMPLIED in the constitution, and that in the first trimester that right of privacy is so strong that that the state may not prohibit (or even restrict) abortion, but that after the first trimester and into the second and third trimester, the States and fetuses interests grow and there can be restriction, regulation and eventually prohibition (third trimester) except in the case of grave threats to the mother which Roe said had to be excepted.
And, if Roe and Casey and the other abortion opinions recognizing the right to privacy including abortion were reversed, all that would happen is that the majority will would control. To me, I find that odd that so many people who scoff at the archaic US notions of fundamental rights which may not be infringed upon are so much in favor of it in this one instance - where abortion is concerned. There, they throw democracy out the window, and it's perfectly fine to limit the will of the majority. I agree with them - I want it thrown out too - I'm just not sure what, other than ideology, they're hanging their hat on to say that in the case of abortion, people should have a right to abortion that the majority may not limit, but that in the case of say, free speech, if the majority declare something to be hate speech, then that's just fine.
Me - I'm not ideological on this - I'm PERSONALLY against abortion, but I also believe a woman's right to privacy means that her decision to abort should be between her and her doctor, and if the majority agree with me (as they appear to do in Alabama), then that majority opinion means something between jack and squat.
Anyway - you're free to consider this decision as some bigtime warning that Roe's days are numbered, but I don't see it. And, its' fine for us to disagree. We agree that the majority in the 40 year old case was at least a reasoned statement of the law. I think we disagree that the dissent 40 years ago was a reasoned statement of the law, but maybe not - you might agree, we really haven't covered that. You disagree that Thomas' decision the other day makes sense, and you think Breyer is dead on. I think there is reasoned support for both the majority and the dissent.
So, at bottom, I don't think there is much reason for big fight about this, or for accusations and mudslinging. But, that hasn't stopped it from happening before....