The Briefing Room
General Category => National/Breaking News => SCOTUS News => Topic started by: mystery-ak on June 17, 2019, 08:25:34 pm
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Justice Thomas asks Supreme Court to overturn ‘demonstrably erroneous decisions’
June 17, 2019 | Frieda Powers
Justice Clarence Thomas believes it’s time the Supreme Court moves to overturn “demonstrably erroneous†decisions made in the past.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,†Thomas wrote in a concurring opinion in a double-jeopardy case decided Monday, according to The Hill.
The “dual sovereignty doctrine,†which pertains to a person facing both state and federal charges for the same offense, was at issue in the decision by the court which ruled not to overturn the ruling in the case of an Alabama man in Gamble v. United States.
The use of the “stare decisis†doctrine, according to Thomas, should be revisited by the high court, saying it “elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law.â€
more
https://www.bizpacreview.com/2019/06/17/justice-thomas-asks-supreme-court-to-overturn-demonstrably-erroneous-decisions-766094 (https://www.bizpacreview.com/2019/06/17/justice-thomas-asks-supreme-court-to-overturn-demonstrably-erroneous-decisions-766094)
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Precedent, Meet Clarence Thomas. You May Not Get Along.
https://www.nytimes.com/2019/03/04/us/politics/clarence-thomas-supreme-court-precedent.html (https://www.nytimes.com/2019/03/04/us/politics/clarence-thomas-supreme-court-precedent.html)
Justice Clarence Thomas was busy in February. As usual, he asked no questions during Supreme Court arguments. But he made up for his silence with three opinions in eight days that took issue with some of the court’s most prominent precedents.
The opinions underscored two distinctive aspects of Justice Thomas’s jurisprudence. He tries to unearth the original meaning of the Constitution, and he has no use for precedents that have veered from that original understanding.
At the Federalist Society’s annual dinner in 2013, he was asked about the doctrine of stare decisis, which is legal shorthand for respect for precedent and Latin for “to stand by things decided.â€
“Stare decisis doesn’t hold much force for you?†Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit asked him during a public conversation at the dinner.
“Oh, it sure does,†Justice Thomas responded. “But not enough to keep me from going to the Constitution.â€
According to data gathered by Stephen L. Wasby, an emeritus professor of political science at the University at Albany, Justice Thomas has written more than 250 concurring or dissenting opinions seriously questioning precedents, calling for their reconsideration or suggesting that they be overruled.
Almost one-third of the opinions concerned the rights of criminal defendants, Professor Wasby found, while others called for a fresh look at decisions on issues such as free speech, religion, voting, the separation of powers and federalism.
In a 2007 essay, Tom Goldstein, a prominent Supreme Court litigator and a co-founder of Scotusblog, wrote that “Justice Thomas’s extreme view of stare decisis has three features that distinguish him from the rest of the court.â€
The first is “unflinching†honesty: “If he thinks the old cases should be discarded, he says so.â€
The second is intellectual ambition: “He is thinking big and tackling the serious questions in constitutional law to which the court has not given a fresh look in decades.â€
The third is his attitude toward precedent in constitutional cases: “He does not give stare decisis any weight.â€
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Judges swear an oath to uphold the Constitution of the United States, not to uphold other Judges.
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I really like Justice Thomas.
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Judges swear an oath to uphold the Constitution of the United States, not to uphold other Judges.
On that he may differ with the head justice. Roberts seems to bristle at the suggestion that some judges are shirking their constitutional duties in favor of political partisanship. Which many obviously are.
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Judges swear an oath to uphold the Constitution of the United States, not to uphold other Judges.
That rather naively misstates the issues involved.
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I really like Justice Thomas.
I do too!
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I really like Justice Thomas.
:thumbsup:
Justice Thomas. One of the best Justices ever.
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I really like Justice Thomas.
This country would be well served with a couple more justices on the bench just like him.
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I really like Justice Thomas.
Me, too. He 'gets it'. He has been an asset to this Nation, and we could use eight more like him.
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That rather naively misstates the issues involved.
How? If the Constitution is not the first place the court turns in making a decision, how is that right? Why even have a court to decide Constitutionality if their focus is only on the meandering from the Constitution by other judges. We can get that (rather handily) at the District level.
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How? If the Constitution is not the first place the court turns in making a decision, how is that right? Why even have a court to decide Constitutionality if their focus is only on the meandering from the Constitution by other judges. We can get that (rather handily) at the District level.
Because the Constitution is not a clear, unambiguous codex the application of which requires no judgment. If it were, then stare decisis would be beside the point because it would be obvious how it applied in every single case.
But that is not the Constitution we have. The one we have, like almost every law we have, contains ambiguities and must be applied in circumstances the authors could not have imagined. Doing that requires judgment, and it is the role of stare decisis to give respect to prior exercises of judgment so that the Constitution does not become a football and application of the law a matter of the personal whims of the judge who happens to apply it.
Respecting judgment calls made by earlier judges in ambiguous or ambivalent cases, even if one might personally exercise one’s judgment in a different way, subserves very important interests that lie at the root of any common law system that has a claim to being the rule of law, not merely one of personality.
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Judges swear an oath to uphold the Constitution of the United States, not to uphold other Judges.
:amen: That is absolutely correct!
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(https://scontent-dfw5-1.xx.fbcdn.net/v/t1.0-9/60219914_10216281033792882_1989884504587632640_n.jpg?_nc_cat=105&_nc_oc=AQlj9xKfuV1-SrTlKEtsYglLkD8YMarhPBFztM6csg3gCCWcWlMlAZ4ebYE-Pr4U8Lk&_nc_ht=scontent-dfw5-1.xx&oh=4f3f167a5a225d864ed561d3e83f6e30&oe=5D8521C5)
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(https://scontent-dfw5-1.xx.fbcdn.net/v/t1.0-9/60219914_10216281033792882_1989884504587632640_n.jpg?_nc_cat=105&_nc_oc=AQlj9xKfuV1-SrTlKEtsYglLkD8YMarhPBFztM6csg3gCCWcWlMlAZ4ebYE-Pr4U8Lk&_nc_ht=scontent-dfw5-1.xx&oh=4f3f167a5a225d864ed561d3e83f6e30&oe=5D8521C5)
If that were true in the way you seem to think it’s true; there would be no need for the Supreme Court, and Justice Scalia would have found some other line of work.
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If that were true in the way you seem to think it’s true; there would be no need for the Supreme Court, and Justice Scalia would have found some other line of work.
It is exactly true and if you were to read some actual original source history you would find that the founders envisioned the Court to be a VERY boring place to work.
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Because the Constitution is not a clear, unambiguous codex the application of which requires no judgment. If it were, then stare decisis would be beside the point because it would be obvious how it applied in every single case.
But that is not the Constitution we have. The one we have, like almost every law we have, contains ambiguities and must be applied in circumstances the authors could not have imagined. Doing that requires judgment, and it is the role of stare decisis to give respect to prior exercises of judgment so that the Constitution does not become a football and application of the law a matter of the personal whims of the judge who happens to apply it.
Respecting judgment calls made by earlier judges in ambiguous or ambivalent cases, even if one might personally exercise one’s judgment in a different way, subserves very important interests that lie at the root of any common law system that has a claim to being the rule of law, not merely one of personality.
Considering that most "ambiguities" are the result of semantic distortions produced by attorneys, when most of the Constitution is actually pretty clear to people who do not engage in such RCH splitting and twisting to push their agenda (or that of their clients),it isn't hard to see how we have ended up with the mess we have.
There are, however, logical distortions which exist, even within the semantically distorted framework of the Courts.
In Miller, the judges allowed the lower court ruling that Miller was guilty of a violation of the NFA to stand, despite their interpretation of the 2nd being that it preserved only the right to keep and bear weapons useful in a military context.
Short barreled shotguns had been in use as trench weapons by the US military in the First World War, and, by that train of logic, should have been included in those weapons left uninfringed, along with any weapon used as a weapon of war.
The lack of knowledge by the justices that shotguns were, in fact, a useful militia weapon (still deployed today, were in Vietnam, and in conflicts prior), led to a ruling that would be erroneous in even that limited context.
A broader interpretation of the RKBA (the correct one) would have simply thrown the NFA out as an unconstitutional infringement, and successive legislation limiting the Rights of the People would have fallen to the gavel as well, if even considered by Congress.
Reading the writings of the Founders on the Standing Army, the role of citizens in keeping that Army "well regulated", would indicate that that Right of the People should be broadly interpreted, only limited through restrictions placed on those who have committed a serious crime (through due process of having been found guilty of that crime).
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Considering that most "ambiguities" are the result of semantic distortions produced by attorneys, when most of the Constitution is actually pretty clear to people who do not engage in such RCH splitting and twisting to push their agenda (or that of their clients),it isn't hard to see how we have ended up with the mess we have.
There are, however, logical distortions which exist, even within the semantically distorted framework of the Courts.
In Miller, the judges allowed the lower court ruling that Miller was guilty of a violation of the NFA to stand, despite their interpretation of the 2nd being that it preserved only the right to keep and bear weapons useful in a military context.
Short barreled shotguns had been in use as trench weapons by the US military in the First World War, and, by that train of logic, should have been included in those weapons left uninfringed, along with any weapon used as a weapon of war.
The lack of knowledge by the justices that shotguns were, in fact, a useful militia weapon (still deployed today, were in Vietnam, and in conflicts prior), led to a ruling that would be erroneous in even that limited context.
A broader interpretation of the RKBA (the correct one) would have simply thrown the NFA out as an unconstitutional infringement, and successive legislation limiting the Rights of the People would have fallen to the gavel as well, if even considered by Congress.
Reading the writings of the Founders on the Standing Army, the role of citizens in keeping that Army "well regulated", would indicate that that Right of the People should be broadly interpreted, only limited through restrictions placed on those who have committed a serious crime (through due process of having been found guilty of that crime).
Nonsense. “Due process†is a term that is fraught with ambiguity and judgment must be used every time to determine what process is due in any given circumstance. It is not susceptible to a mechanical application in even most instances. And it is precisely with concepts such as due process that stare decisis is so important.
“Infringed†is also another word that requires judgment and interpretation. It cannot mean that no law can have even a minor impact on the ability of any individual to keep weapons because if it did, that would necessarily make it unconstitutional for a state to prohibit convicted violent felons from owning machine guns or grenade launchers.
Therefore, it necessarily follows that the government can constitutionally enact laws that may adversely affect an individual’s ability to own whatever weapons he pleases.
And so, even the term “ shall not be infringed†is not sufficiently clear and unambiguous so as to be susceptible to mechanical application.
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If that were true in the way you seem to think it’s true; there would be no need for the Supreme Court, and Justice Scalia would have found some other line of work.
Except for the fact the Constitution...as Justice Scalia correctly saw it...included a judicial branch as part of the Government.
When the judicial branch was created they were designed to be the weakest branch.
It seems he understands the Constitution and it's role in Government far far better than you do or ever will.
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And so, even the term “ shall not be infringed†is not sufficiently clear and unambiguous so as to be susceptible to mechanical application.
Only to a gun grabbing Liberal is it not sufficiently clear.
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Except for the fact the Constitution...as Justice Scalia correctly saw it...included a judicial branch as part of the Government.
When the judicial branch was created they were designed to be the weakest branch.
It seems he understands the Constitution and it's role in Government far far better than you do or ever will.
By weakest the Founders meant that the court commanded neither the purse nor the military, and could succeed through persuasion and argument.
But it most emphatically was not intended to be subservient to either of the two other branches, which is why it was called a co-equal branch of the government.
You are perhaps the singularly most uninformed person on this forum when it comes to the Constitution. And you top that all off with the most pretentious manner of displaying your ignorance.
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Except for the fact the Constitution...as Justice Scalia correctly saw it...included a judicial branch as part of the Government.
When the judicial branch was created they were designed to be the weakest branch.
It seems he understands the Constitution and it's role in Government far far better than you do or ever will.
By weakest the Founders meant that the court commanded neither the purse nor the military, and could succeed through persuasion and argument.
But it most emphatically was not intended to be subservient to either of the two other branches, which is why it was called a co-equal branch of the government.
You are perhaps the singularly most uninformed person on this forum when it comes to the Constitution. And you top that all off with the most pretentious manner of displaying your ignorance.
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By weakest the Founders meant that the court commanded neither the purse nor the military, and could succeed through persuasion and argument.
But it most emphatically was not intended to be subservient to either of the two other branches, which is why it was called a co-equal branch of the government.
You are perhaps the singularly most uninformed person on this forum when it comes to the Constitution. And you top that all off with the most pretentious manner of displaying your ignorance.
You need to read Article III.
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Only to a gun grabbing Liberal is it not sufficiently clear.
So you would agree, then, that the Constitution prohibits the government from passing a law that makes it illegal for a convicted violent felon to own a machine gun, or a grenade launcher. Got it.
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You need to read Article III.
Actually, you do. And more to the point, you need to start trying to understand it. Something you most clearly do not.
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It is exactly true and if you were to read some actual original source history you would find that the founders envisioned the Court to be a VERY boring place to work.
It is not true in the naive sense that you seem to think it is. Or do you, too, believe that the second amendment means that the government cannot make it illegal for a convicted violent felon to own a machine gun or a grenade launcher?
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It is not true in the naive sense that you seem to think it is. Or do you, too, believe that the second amendment means that the government cannot make it illegal for a convicted violent felon to own a machine gun or a grenade launcher?
Federalist #78
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Actually, you do. And more to the point, you need to start trying to understand it. Something you most clearly do not.
Federalist #78
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So you would agree, then, that the Constitution prohibits the government from passing a law that makes it illegal for a convicted violent felon to own a machine gun, or a grenade launcher. Got it.
Actually, by the time a Felon is convicted, they have had their day in court: "Due Process" and been found guilty beyond a reasonable doubt. At that point the 5th Amendment requirement for due process is fulfilled, and they can ..."be deprived of life, liberty, or property...".
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Federalist #78
"It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."
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"It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."
And that's where the line has been crossed. Judging has usurped the legislative and the executive. They were designed to be the weakest branch and they're now...thanks to the left...the most powerful.
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And that's where the line has been crossed. Judging has usurped the legislative and the executive. They were designed to be the weakest branch and they're now...thanks to the left...the most powerful.
Sure seems that way. The only way the left has made it as far as they have is by seeking means alternate to the ballot box.
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Considering that most "ambiguities" are the result of semantic distortions produced by attorneys, when most of the Constitution is actually pretty clear to people who do not engage in such RCH splitting and twisting to push their agenda (or that of their clients),it isn't hard to see how we have ended up with the mess we have.
There are, however, logical distortions which exist, even within the semantically distorted framework of the Courts.
In Miller, the judges allowed the lower court ruling that Miller was guilty of a violation of the NFA to stand, despite their interpretation of the 2nd being that it preserved only the right to keep and bear weapons useful in a military context.
Short barreled shotguns had been in use as trench weapons by the US military in the First World War, and, by that train of logic, should have been included in those weapons left uninfringed, along with any weapon used as a weapon of war.
The lack of knowledge by the justices that shotguns were, in fact, a useful militia weapon (still deployed today, were in Vietnam, and in conflicts prior), led to a ruling that would be erroneous in even that limited context.
A broader interpretation of the RKBA (the correct one) would have simply thrown the NFA out as an unconstitutional infringement, and successive legislation limiting the Rights of the People would have fallen to the gavel as well, if even considered by Congress.
Reading the writings of the Founders on the Standing Army, the role of citizens in keeping that Army "well regulated", would indicate that that Right of the People should be broadly interpreted, only limited through restrictions placed on those who have committed a serious crime (through due process of having been found guilty of that crime).
Most modern lawyers have been thoroughly brain washed to believe crap such as @Jazzhead and @Bill Cipher continually spew and, because they are officers of the court, they unfortunately have the ability to make much of it so.
The founders would be rolling over in their graves if they could see what the courts have become today.
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Actually, by the time a Felon is convicted, they have had their day in court: "Due Process" and been found guilty beyond a reasonable doubt. At that point the 5th Amendment requirement for due process is fulfilled, and they can ..."be deprived of life, liberty, or property...".
Ahh, so “shall not be infringed†doesn’t actually mean shall not be infringed. You have to interpret the Constitution to find that limit.
Thank you for playing.
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Most modern lawyers have been thoroughly brain washed to believe crap such as @Jazzhead and @Bill Cipher continually spew and, because they are officers of the court, they unfortunately have the ability to make much of it so.
The founders would be rolling over in their graves if they could see what the courts have become today.
Don't blame me. It was that "crap" Justice Scalia that wrote that the individual right to own a gun is subject to reasonable regulation.
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Don't blame me. It was that "crap" Justice Scalia that wrote that the individual right to own a gun is subject to reasonable regulation.
Good point.
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Don't blame me. It was that "crap" Justice Scalia that wrote that the individual right to own a gun is subject to reasonable regulation.
I don't blame you! I blame the ones who did the brainwashing.
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I don't blame you! I blame the ones who did the brainwashing.
So now you’re saying that Scalia was brainwashed?!?
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Don't blame me. It was that "crap" Justice Scalia that wrote that the individual right to own a gun is subject to reasonable regulation.
Scalia got off on a tangent about the right to own shoulder to air missile launchers. I mean, he was talking about limits on the 2nd amendment and I don't know if he even came down on that. I'd be careful in talking about what Scalia said about limiting the 2nd amendment.
https://www.economist.com/democracy-in-america/2012/07/30/a-stinger-for-antonin (https://www.economist.com/democracy-in-america/2012/07/30/a-stinger-for-antonin)
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf (https://www.supremecourt.gov/opinions/07pdf/07-290.pdf)
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Scalia got off on a tangent about the right to own shoulder to air missile launchers. I mean, he was talking about limits on the 2nd amendment and I don't know if he even came down on that. I'd be careful in talking about what Scalia said about limiting the 2nd amendment.
https://www.economist.com/democracy-in-america/2012/07/30/a-stinger-for-antonin (https://www.economist.com/democracy-in-america/2012/07/30/a-stinger-for-antonin)
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf (https://www.supremecourt.gov/opinions/07pdf/07-290.pdf)
He was pretty clear about it.
Or do you, too, subscribe to the notion that the Second Amendment prohibits the government from making it illegal for a violent convicted felon to own a machine gun, or a grenade launcher?
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He was pretty clear about it.
Or do you, too, subscribe to the notion that the Second Amendment prohibits the government from making it illegal for a violent convicted felon to own a machine gun, or a grenade launcher?
Ok, so violent felons can not own guns, it may not be in the Constitution exactly but that sounds reasonable.
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He was pretty clear about it.
Or do you, too, subscribe to the notion that the Second Amendment prohibits the government from making it illegal for a violent convicted felon to own a machine gun, or a grenade launcher?
You keep equating "the people" with a convicted felon. They do not have the same rights. The convicted felon has already gone through due process to limit his rights. It is not the same a "the people" that have committed no crime.
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Ok, so violent felons can not own guns, it may not be in the Constitution exactly but that sounds reasonable.
So then you agree that “shall not be infringed†does not literally mean what it says, but must be interpreted in light of other provisions in the Constitution and other applicable legal principles, which may not be expressly stated in the Constitution in a way that would allow for mechanical application.
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You keep equating "the people" with a convicted felon. They do not have the same rights. The convicted felon has already gone through due process to limit his rights. It is not the same a "the people" that have committed no crime.
No, I don’t. I am taking the words as they are literally set forth, and am pointing out the logical conclusions one must necessarily accept if one thinks that the words must be applied literally, mechanically, without interpretation, and in isolation. The Second Amendment is not, by its terms or by necessary implication, limited only to individuals who have never been convicted of a crime; therefore, if the words apply literally in a mechanical way, they necessarily permit violent convicted felons to possess whatever armament they desire.
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So then you agree that “shall not be infringed†does not literally mean what it says, but must be interpreted in light of other provisions in the Constitution and other applicable legal principles, which may not be expressly stated in the Constitution in a way that would allow for mechanical application.
This appears to be a question of the right of states to legislate guns. That, they do already.
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Ahh, so “shall not be infringed†doesn’t actually mean shall not be infringed. You have to interpret the Constitution to find that limit.
Thank you for playing.
I guess you didn't get it. All your rights except those attached to the right to appeal can be 'infringed' and your life, property, etc., forfeit if you have been convicted of a Felony, depending on the crime, after conviction.
The 5th only guarantees the rights of the accused (and those who have not been accused of any crime).
For those who have not been accused nor convicted of a crime, the language of the 2nd is plain enough. SHALL NOT be infringed.
Thanks for playing your own self.
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So then you agree that “shall not be infringed†does not literally mean what it says, but must be interpreted in light of other provisions in the Constitution and other applicable legal principles, which may not be expressly stated in the Constitution in a way that would allow for mechanical application.
Again, you ignore the punishment for being a convicted Felon. That includes some loss of rights. See my previous post.
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Again, you ignore the punishment for being a convicted Felon. That includes some loss of rights. See my previous post.
Didn’t ignore it at all. Your post proved my point: “shall not be infringed†is not absolute and is not capable of mechanical application without interpretation and resort to resources that lie outside the four corners of the Constitution itself.
Thank you for proving my point.
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Didn’t ignore it at all. Your post proved my point: “shall not be infringed†is not absolute and is not capable of mechanical application without interpretation and resort to resources that lie outside the four corners of the Constitution itself.
Thank you for proving my point.
But I didn't, except in your delusions. One who has been duly convicted of a serious crime forfeits a number of rights.
If they have forfeited the right, by virtue of that conviction, there is no right to be infringed.
Only those who possess their full Rights can have a Right they have not forfeited through their actions infringed.
I have not proven your point, for those in full possession of their Rights, there is to be no infringement of the Right.
For those who have forfeited the Right, there is no Right to be infringed; that Liberty (and property) only taken from them after being duly convicted beyond a reasonable doubt of a serious crime (Felony).
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But I didn't, except in your delusions. One who has been duly convicted of a serious crime forfeits a number of rights.
If they have forfeited the right, by virtue of that conviction, there is no right to be infringed.
Only those who possess their full Rights can have a Right they have not forfeited through their actions infringed.
I have not proven your point, for those in full possession of their Rights, there is to be no infringement of the Right.
For those who have forfeited the Right, there is no Right to be infringed; that Liberty (and property) only taken from them after being duly convicted beyond a reasonable doubt of a serious crime (Felony).
I'm hearing violent felons should have all the rights, like voting. Sounds like Bernie.
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But I didn't, except in your delusions. One who has been duly convicted of a serious crime forfeits a number of rights.
If they have forfeited the right, by virtue of that conviction, there is no right to be infringed.
Only those who possess their full Rights can have a Right they have not forfeited through their actions infringed.
I have not proven your point, for those in full possession of their Rights, there is to be no infringement of the Right.
For those who have forfeited the Right, there is no Right to be infringed; that Liberty (and property) only taken from them after being duly convicted beyond a reasonable doubt of a serious crime (Felony).
You have proven my point, you just don’t wish to face that fact.
Thank you for playing. Better luck next time.
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You have proven my point, you just don’t wish to face that fact.
Thank you for playing. Better luck next time.
*****rollingeyes*****
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You have proven my point, you just don’t wish to face that fact.
Thank you for playing. Better luck next time.
(https://i.ytimg.com/vi/yy0Bvu7vy9I/hqdefault.jpg)