This is a bit misleading. DAs have latitude about what to prosecute and if they don't think they can win, they dont have to bring it to court.
This is because "their class of people" were an honor-based society, in which reputation was the currency of power, and people with honor were expected to prioritize the national interests above their own. That is no longer the case.
In other words, there hasn't been a duel. So there should be another enforcement mechanism for making Presidents prioritize the nation above themselves that actually works.
Are any of the SCOTUS justices “unqualified”? I think all of them have the kinds of backgrounds you’d expect from a Supreme Court justice-law professorships, appellate courts, etc
Are they the best legal minds available? Arguably not, on both sides - in recent decades, both major parties prioritise political/ideological reliability over legal brilliance. Consider someone like Richard Posner, formerly of the 7th Circuit - many consider him one of the brightest legal minds of his generation, and surely the Supreme Court would have benefited from his membership in it - but he never had much hope, because he was too conservative for Democrats, not conservative enough for Republicans.
How exactly do you think a qualified, non-partisan judge should decide cases?
You will hear the same people arguing that Justice Alito should l recuse himself due to his wife’s taste in flags, but Judge Merchan shouldn’t recuse himself from Trump’s trial and sentencing after having been revealed to have made (trivial) donations to anti-Trump political campaigns. It sure looks to me like people prioritising maximising the odds of their desired outcome over consistent principle.
The “very specific and unprotected groups” you are talking about are political movements (even if non-mainstream) and hence expressing support for them is just as much political speech as any political donation is. All political speech, even extremist political speech, is protected in the US by the First Amendment, unless it incites “imminent lawless action” (see Brandenburg v Ohio), or one of the other narrow exceptions provided for by SCOTUS’ jurisprudence.
Actually, it is allowed to limit free speech to meet “compelling state interests”, and I’m pretty sure SCOTUS would uphold limitations on judge’s off-the-job speech when necessary to maintain the appearance of judicial impartiality as such a compelling state interest. By contrast, I doubt they’d view limiting the speech of a judicial spouse as necessary to an equally compelling state interest.
Furthermore, unless you are a believer in coverture, Alito’s actions are separate from those of his wife, so once he made clear the flag was his wife’s decision not his, I don’t see how it is relevant. The law does not demand judges recuse themselves on the basis of views of their spouses which they may not share-especially when his wife’s expressive act was not directly commenting on any specific case, at most it was a vague expression of political affiliation-and it isn’t even clear what she personally understands that flag to mean.
> This is a fallacious argument at best and smells of bad faith engagement.
It isn’t a fallacious argument. Rather, suggesting that anyone who disagrees with you is guilty of “bad faith engagement”-that’s a fallacious argument.
I heard comments like yours all the time when people were saying we needed to take QAnon more seriously. People thought it was fringe, that people concerned were “terminally online.” Even as we saw their talking points work their way into mainstream conservative outlets.
Then January 6th happened. Everyone knows what QAnon is now.
Did you notice that the link in the comment you were replying to, has a photo of that “Appeal to Heaven” flag from a Black Lives Matter protest in 2020? And it seems clear it was being flown by BLM supporters, not anti-BLM counterprotestors.
You want to claim that other meanings are purely historical and in contemporary usage it exclusively means “white Christian nationalist”. If the only other examples of its usage people could point to were from decades ago, your argument might have some force. But, given we have photographic evidence of people with a diametrically opposite ideology using it less than 5 years ago, your argument is not very convincing.
https://www.pbs.org/newshour/amp/show/former-neighbor-disput...
Their bogus excuse is very damning. Or at least real event they used as an excuse, but the timeline doesn’t make sense, so they’re lying.
The article you are citing is relying on the claims of an angry former neighbour. Why assume that the Alito's are lying or mistaken, when it seems just as possible that their ex-neighbour could be.
In any event, even if we assume the ex-neighbour's claims are 100% true, they still don't prove (1) that Martha Alito flew the flag with intention to express a highly specific political message, (2) even supposing that was her intention, it still doesn't prove Samuel Alito was supporting her expressive act, as opposed to simply allowing his wife to do what she wants to do.
Getting abstract and dissembling about it doesn't change the fact that the meaning is clear and obvious to anyone who isn't sea lioning. It's clear to their supporters because it needs to be to be effective.
https://www.pbs.org/newshour/amp/show/former-neighbor-disput...
We can dispute the specifics of his motivations but clearly these have not been simple cases of “I just like the flag.” It’s also pretty bizarre to fly the flag upside down for fun.
My point was not to attack this person individually so you’re right I shouldn’t have worded it in those terms. My point was that virtually everyone who thinks the current Supreme Court is “unqualified” also likely thinks “emanations from penumbras” are constitutional law. It’s like listening to anti-vaxxers talk about the qualifications of doctors.
That says that the list of rights enumerated in the constitution is non-exhaustive. That just means that rights can exist in other places besides the Constitution. But if you want to say there is such a right, you have to identify that right in some other source.
But the “emanations from penumbras” language isn’t referring to a non-enumerated right found somewhere else. It’s saying that the privacy right originates in the “emanations from penumbras” of the constitution. So it’s saying the constitution itself creates that right.
Almost everyone agrees with you on the emanations of penumbras. Nobody wants that. It was rectified by Casey in 1992.
Roe also claimed abortion was a right because doctors should not worry about the law. Women didn’t have a right to abortion at all. Doctors did. That was fixed by Casey in 1992, and probably a bit early.
Roe hasn’t been the defining law on abortion since 1992 because so many people, pro-choicers especially, regarded it as very flawed.
You are attacking straw men. Please stop.
Casey was the start of the self-licking ice cream cone the abortion right eventually became—asserted to exist because it was said to exist by a precedent nobody could defend.
I don’t know how justices should decide cases (not a constitutional law scholar, what are your credentials?) but I know that the majority in this one is wrong and should be impeached. The federalists are a cancer on the legal profession. Failure to self police has allowed them to fester when healthy communities would properly ostracize and treat such demented people but here we are.
Perhaps we can all band together to gift these clowns rvs and luxury vacations to get a public healthcare option for everyone?
Impeach them and ring the Russian Republicans up their hard earned espionage charges
If you don’t know how judges should decide cases, how do you know they are wrong?
Every SCOTUS Justice, except for for Thomas, was an absolute top-tier jurist at the time they were appointed.
Every SCOTUS Justice, except Thomas, could have received a tenured professorship at any law school in the country, a partnership at any law firm in the country, editorship of almost any law journal in the country, etc.
Any one, including Thomas, would have been welcome as a professor at the Unversities of Oxford, Cambridge, Edinburgh, Sydney, etc; a magic circle UK law firm; or as arbiter in international trade.
Any one, including Thomas, would have been a shoe in for attorney general or solicited general of US. Any one, including Thomas, could have gotten a position as US Attorney in either a Democratic or Republican administration.
We have an insanely well qualified SCOTUS, mostly because of how arduous the confirmation process is.
How do you go 10 years without even asking a question (https://www.cnn.com/2016/02/29/politics/supreme-court-claren...) if you're so good you could be an attorney general.
He's lazy, and that's even worse than just being a sex predator (Anita Hill) in the context of jurisprudence. He writes the shortest, shittiest, least well thought out opinions. He's phoning it in and has been for decades now.
Seems that our best justices are "political hacks" and our worst are those who are excellent lawyers. Maybe that's because lawyers are only slightly above "used car salesman" in terms of honesty?
Shit dude, If law credentials mattered, than Comey wouldn't have ever been an attorney (Cooley law, worst law school in america). Was he also a "political hack"?
Warren had been elected governor of California on both a Republican and Democratic ticket. That’s the very definition of a politician. I don’t have a good definition of hack.
If our best lawyers are no better than used car salesmen, why are they so well regarded internationally?
Make better arguments please, you showed you were capable of it earlier when you wrote the top level justification. Why not do it here?
The two parties and their friends have submitted mountains of briefings before oral argument. The arguments made in front of the court are already fully baked. Oral argument is only a signal on where the justices' thinking is taking them at the time. All of this is public, by the way. You can go read everything on your own (something more people in this thread should do).
Because your fellow jurists ask the questions for you.
He explained this position cogently: he does not want to influence the process or the case being presented to him.
When seniority-based speaking order changed during COVID virtual hearings, he started asking questions again.
If that were true then defendants would waive their right to a jury trial. They don't.
The conviction rate is high because prosecutors don't bring weak cases.
They do, overwhelmingly. Plea bargaining accounts for almost 98 percent of federal convictions and 95 percent of state convictions in the United States.
My point still stands. For cases that go to trial, if they jury is just a pawn for prosecution, the defendants would choose a bench trial. They do not, so this argument does not hold water.
He was advised to do a bench trial.
The idea was the evidence was so strongly in his favor that only an idiot would find him guilty, and a judge was less likely to be an idiot than a jury.
It worked out splendidly. The trial didn’t even finish. The judge halted the trial half way through and “advised” the prosecution to drop charges, which they did.
This is of course not representative. But if I were ever in the same spot, I’d seriously consider a bench trial.
I know someone who recently took a bench trial. No evidence of a crime was presented. The closing argument was the defense was "There was zero, zip, zilch evidence of any crime committed, and no mention of the defendant by anyone." The judge found the defendant guilty and then retired the next day. It's on appeal. C'est la vie.
(OTOH I saw a judge take a bench trial on a crime they'd committed, and their buddy was the trier of fact. The first witness had barely stepped onto the stand when the defendant was pronounced not guilty. LOL)
As a trivial example: imagine you are charged with a misdemeanor you absolutely didn’t do. Assuming you have no previous criminal record the state offers you a civil penalty (ie an expensive speeding ticket).
Are you going to go to trial knowing you could be sentenced to a year in prison? Keep in mind just paying an attorney to represent you through the trial will cost several times the civil penalty.
The OP claims that juries can be bullied by a prosecutor into delivering a guilty plea. But if this were so, defendants would choose a bench trial as it would a safer bet. They do not, because juries are not bullied by prosecutors.
The constitution didn’t envision a sprawling legal services market to secure the freedom of criminals despite overwhelming evidence while poor people are enslaved like cattle in a nakedly classist and racist exercise of state power to maintain class divisions that afford the empowered unearned wealth power and privilege by virtue of birth.
Speaking of trends here-exceptions occur and get held up as some gotcha that only further betrays ignorance of the system and actually represents the calculated tokenization of the oppressed to act as a shield to scrutiny.
The DOJ has a high conviction rate, at 93%, but Federal cases are the minority of cases in the USA. Most cases are state-level, and the conviction rates vary pretty significantly (E.g., California has a conviction rate of ~65% for property crime: Table 6 of https://www.courts.ca.gov/documents/lr-2019-JC-disposition-o... )
Prosecutors don't go to trial unless they have a solid case especially against a former pres.
The Founders envisioned an extremely weak criminal justice system, especially for "their class of people." Defendants were given extremely strong protections, and convictions were the exception, not the rule.
The Founders were more concerned about facing a duel than a criminal conviction.
So they added other mechanisms for presidential accountability: impeachment, elections, and the weakness of the office.
These other mechanisms have become weaker and weaker, while the criminal justice system has become stronger and stronger.
Impeachment's happen, but not Senate convictions. The political parties have created a duopoloy on power which allow them to run weak candidates. Congress is less and less willing to hold presidents of their own party accountable. Dueling is prohibited not just criminally, but constitionally in most states.
At the same time the criminal justice system is becoming more and more powerful. Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.
The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress.
Impeachment, elections, and duels no longer deter bad conduct. Convictions do.
So we have an edge case: a system that can only hold an ex-President accountable via a criminal charge.
Edge cases are weird. They create "sometimes it works and sometimes it doesn't" situations. And that's where we are now.