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Vox: THE CASE FOR ABOLISHING THE SUPREME COURT

https://twitter.com/voxdotcom/status/1050720248981331968 ...
DrakeMallard
  10/12/18
tldr. Is he arguing that congress should just somehow get r...
;;;;.....;...;.............;;..;.;.;
  10/12/18
whoa this guy is from harvard law, he must be serious and re...
THOT_RAVAGER
  10/12/18
https://balkin.blogspot.com/2016/05/abandoning-defensive-cro...
DrakeMallard
  10/12/18
>And taking a hard line seemed to work reasonably well in...
Shia LaBOOF
  10/12/18
I agree. When shitlibs have lost the culture war, we need t...
animeboi
  10/12/18
180 https://images.google.com/imgres?imgurl=https%3A%2F%2...
benzo xx
  10/12/18
"fuck Kennedy" if that's what Tushnet says abou...
.,.,.,',..,.,.,"
  10/12/18
"please don't hurt me"
animeboi
  10/12/18
http://xoxohth.com/thread.php?thread_id=3432577&mc=21&am...
.,.,.,',..,.,.,"
  10/12/18
...
guy who gets it
  10/12/18
Libs don't win anything in a fair election, even gay marriag...
put on these glasses or start eating that trashcan
  10/12/18
this guy seems to suggest - although he does not explicitly ...
JFC
  10/12/18
and state by state we might have abortion bans.
.,.,.,',..,.,.,"
  10/12/18
yes
JFC
  10/12/18
and TRUMP could deport all muslims
JFC
  10/12/18
Xo Prop 8
><<(^((*>
  10/12/18
Just so everyone here knows, I had Mark Tushnet as a profess...
vonNeumann
  10/12/18
did he give everyone in the class a B+?
put on these glasses or start eating that trashcan
  10/12/18
Don't know, but he gave me one.
vonNeumann
  10/12/18
What's his moniker?
;;;;.....;...;.............;;..;.;.;
  10/12/18
...
guy who gets it
  10/12/18
hoo boy, there's a lot to unpack here: One of the more co...
Buck "The Club" Paulette
  10/12/18
the good news is that it looks like he's an evolutionary dea...
Baron Mark von Ironside
  10/12/18
lol his daughter Rebecca is an expert on the law of engageme...
Baron Mark von Ironside
  10/12/18
she gets de beers, he gets de tip: a critical analysis of gr...
don't run nigga i see you
  10/12/18
He gets de beers, she gets de tip: Club Mandingo in the Afri...
The Malicious Prepschool Allegations
  10/12/18
...
don't run nigga i see you
  10/12/18
Tushnet is known for her fanfiction-related scholarship[1] a...
Buck "The Club" Paulette
  10/12/18
I had tushnet for property law. Worst professor I had in law...
..,....,,............,,..,..,.
  10/12/18
Did she get into her extensive fanfic scholarship at all?
Buck "The Club" Paulette
  10/12/18
Lol, no. Everyone said she looked like this guy: https:/...
..,....,,............,,..,..,.
  10/12/18
XO Eve Tushnet Tushnet is celibate due to the Catholic Ch...
N904PD
  10/12/18
reminds me of this Alan Keyes line of argument https://yo...
Baron Mark von Ironside
  10/12/18
http://www.xoxohth.com/thread.php?thread_id=3715502&mc=1...
Baron Mark von Ironside
  10/12/18
Just so everyone here knows, I didn't get into HLS.
Judas Jones
  10/12/18
...
David Morse
  10/12/18
...
TIGHTENDcbooker
  10/12/18
The case for abolishing the Supreme Court A Harvard law pro...
.,.,.,',..,.,.,"
  10/12/18
hold the phone. a socialist jew doesn't want SCOTUS anymore?
marshall mathers
  10/12/18
and he has a fantasy about "the people" wielding p...
.,.,.,',..,.,.,"
  10/12/18
1. Good luck, add that to your wish list of abolishing the ...
;;;;.....;...;.............;;..;.;.;
  10/12/18
...
guy who gets it
  10/12/18
>> The big question is whether the gains from those ki...
Baron Mark von Ironside
  10/12/18
fundamentally it comes down to Trump said pussy and still wo...
put on these glasses or start eating that trashcan
  10/12/18
Kind of seems like he's using a lot of words to say that he ...
;;;;.....;...;.............;;..;.;.;
  10/12/18
cr he's basally saying I want X outcome
Baron Mark von Ironside
  10/12/18
in his defense, he'd definitely be publishing this exact art...
andre pond cummings
  10/12/18
...
'"''"'"'
  10/12/18
lol
IronMonkey
  10/12/18
>> As my colleague Matthew Yglesias noted last week, t...
Baron Mark von Ironside
  10/12/18
"Matthew Yglesias" ..."the Court is now"...
;;;;.....;...;.............;;..;.;.;
  10/12/18
and they use completely different language when the courts p...
.,.,.,',..,.,.,"
  10/12/18
it drives me insane. i don't really have a huge problem i...
Baron Mark von Ironside
  10/12/18
It's this attitude that they speak from a point of moral aut...
;;;;.....;...;.............;;..;.;.;
  10/12/18
one of the most dangerous aspects of modern day liberalism i...
Baron Mark von Ironside
  10/12/18
...
The Malicious Prepschool Allegations
  10/12/18
a political orientation, a religion, a mental illness: the l...
don't run nigga i see you
  10/12/18
...
guy who gets it
  10/12/18
In the interview he (along with the vox "reporter"...
LathamTouchedMe
  10/12/18
Why don’t you buy it
;;;';';;';;;;;;''';';''';
  10/12/18
I do think they raise legitimate points about the inability ...
LathamTouchedMe
  10/12/18
probably bc (((GC))) is united on what federal reserve polic...
JFC
  10/12/18
No. That should be a rare exercise of the Court's power. T...
IronMonkey
  10/12/18
Doesn't that depend on what the legislature is doing with it...
Baron Mark von Ironside
  10/12/18
Sure. If the legislature is constantly violating the Consti...
IronMonkey
  10/12/18
I don't think that abolishing the Supreme Court would work o...
Voodoo Child
  10/12/18
Stopped reading at "Matthew Yglesias noted"
GOTTA MOVE FAST
  10/12/18
Liberals have been on an 80-year winning streak with SCOTUS,...
..,....,,............,,..,..,.
  10/12/18
Odd case!
Metal Up Your Ass
  10/12/18
...
bill laimbeer
  10/12/18
...
guy who gets it
  10/12/18
true. but Tushnet is a different kind of guy. he's one of th...
.,.,.,',..,.,.,"
  10/12/18
" . . . but in general the Court has continually defend...
><<(^((*>
  10/12/18
"the Court is now a blunt political instrument, used re...
IronMonkey
  10/12/18
Respect ARE INSTITUTIONS, bigot
GOTTA MOVE FAST
  10/12/18


Poast new message in this thread



Reply Favorite

Date: October 12th, 2018 10:32 AM
Author: DrakeMallard (Let's get dangerous)

https://twitter.com/voxdotcom/status/1050720248981331968

https://www.vox.com/2018/10/12/17950896/supreme-court-brett-kavanaugh-constitution

The case for abolishing the Supreme Court

A Harvard law professor on whether it’s time to rethink the nation’s highest court.

By Sean Illing@seanillingsean.illing@vox.com Oct 12, 2018, 8:10am EDT

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

But it’s hard to defend the Supreme Court on these grounds today.

As my colleague Matthew Yglesias noted last week, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance — often on behalf of corporate interests. And the recent disaster that was the Brett Kavanaugh confirmation has further delegitimized the Court in the public’s mind.

So it’s perfectly reasonable to ask if we should abolish the Supreme Court, or at the very least strip the Court of its ability to overturn laws that it rules unconstitutional. If the Court is no longer a neutral arbiter of the law, if it’s gradually shape-shifting into a partisan weapon, then maybe it’s time to rethink its role in our constitutional system.

I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

A lightly edited transcript of our conversation follows.

Sean Illing

What would you say is the basic mission of the Supreme Court in our constitutional system?

Mark Tushnet

The Supreme Court’s role is to tell the people and the political branches what the limits of their power are. Sometimes that means rejecting conservative policies, and sometimes that means rejecting liberal policies. But the general role, as it’s come to be understood, is to police the boundaries of our political system.

Sean Illing

Do you think the Court competently fulfills this role today?

Mark Tushnet

Whether the Court is competently pursuing it depends on a couple of things. One is your assessment of the legal quality of the work they do. And another is, of course, your assessment of the merits of the limits that they are placing on political choice.

As to the latter, it’s just going to depend on your politics. For a while, liberals liked what the Court was doing, and then they didn’t. For a while, conservatives didn’t like what the Court was doing, and now they do.

Sean Illing

And what of the “legal quality” of the work they’re doing?

Mark Tushnet

I think the honest answer there is that, in the modern era, the quality has ranged from minimally competent legal analysis to extremely bad decisions that are announced without a clear or compelling explanation.

Sean Illing

I’m tempted to ask for examples of bad decisions, but let’s focus on the case for abolishing the Supreme Court, or at the very least for abolishing judicial review, which is the Court’s ability to decide whether a law by the government is constitutional.

Mark Tushnet

There are two components of the case for getting rid of judicial review. One is that, as a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say “no.” So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.

The second component is that judicial review may actually impair the public’s ability to engage in serious thinking about what the Constitution means, and what we want to do in light of what we think our Constitution says. In a way, the Supreme Court simply takes on this conversation for itself, and leaves the citizenry as bystanders.

Sean Illing

Does the Court’s power of judicial review come directly from the Constitution?

Mark Tushnet

I should start by saying I’m not a textualist or an originalist, which is to say I don’t think the meaning of the Constitution is stable or fixed from the time it was enacted. However, I think it was widely understood when the framers created a court in a system with a constitution that that court would have the power to invalidate legislation it deemed unlawful. That’s not written into the US Constitution, but it was clearly a background assumption at the time and has been ever since.

Sean Illing

How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?

Mark Tushnet

In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And, in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.

Sean Illing

And how does that kind of system work?

Mark Tushnet

The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”

Sean Illing

Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?

Mark Tushnet

Yeah, I do. I’m a big fan of the dialogic approach. And it’s worth noting that even very conservative legal scholars like Robert Bork have proposed this sort of system, which suggests this is something people across the ideological spectrum could get behind. And I’ve felt this way for my entire career, regardless of the ideological makeup of the Supreme Court.

Sean Illing

We have this idea of the Supreme Court as a bulwark against majority tyranny and minority oppression, but that’s not the reality. There have been glaring exceptions, especially in the 1950s and ’60s, but in general the Court has continually defended the powerful against the weak — from slaveholders to segregationists to corporations. Why should the individual citizen feel invested in the Court at this point?

Mark Tushnet

If you look at the overall course of US Supreme Court history, the description that you’ve offered is basically correct. But there are exceptions, as there always are, to that kind of generalization. One is the relatively brief Warren Court era, which still occupies the imagination of many people who think about the Constitution.

We’ve had the Brown v. Board of Education decision and Roe v. Wade, and then, more recently, the Obergefell v. Hodges decision that legalized same-sex marriage — and all of these decisions were empowering for different segments of the population.

The big question is whether the gains from those kinds of protections of minority interests are substantial enough to outweigh the Court’s interference with legislation on behalf of the most powerful elements of our society. If you’re focused on many recent decisions, like Citizens United, the Court certainly seems to be favoring corporate power, but the picture is less clear when you step back and evaluate it over a much longer period of time.

Sean Illing

You alluded to this a minute ago, but I want to push you a bit more on it. Democracy implies, at the very least, that citizens are allowed to choose the policies that govern their lives, either directly or indirectly. But the Court’s primary function seems to be to undermine majority will when it deems it necessary. It’s probably wise to have constitutional safeguard of some sort, but do you think the current arrangement is a sustainable contradiction?

Mark Tushnet

If you think people vote for policies without paying any attention to the Constitution, then you might want someone watching closely and stepping in to intervene at exceptional moments, and the courts are where you want that to happen. My own view is that it’s fine if you have some opportunity to respond afterward, which is why I prefer a dialogic system.

But it’s also the case that in many of the most contentious issues, the people have reasoned constitutional judgments, and the Court just comes in and says the people are in error. But that isn’t always the case. Sometimes it’s a legitimate disagreement between the voters and the Court, and then it comes down to a political judgment. This is when the role of courts becomes very problematic.

Sean Illing

Do you support imposing term limits on justices?

Mark Tushnet

I’ve signed a proposal for 18-year term limits. I think over time that might have some effect. It won’t immediately have much effect because in some ways the damage has already been done, but it would make the process more regular and predictable, and norms of reciprocity might develop, which we desperately need.

Sean Illing

Is there some other way forward, perhaps turning the Supreme Court into a body of top legal thinkers in the country, and instead of having a fixed number of justices review each case, we have a specified number of randomly chosen justices selected for each case?

Mark Tushnet

Well, Sweden does something like that — and Sweden is not a terrible place to live. You probably could design something that would work effectively. Again, the details would matter, and reconciling that with the existing Constitution would be very tricky, but sure, it’s conceivable. I think there is some enthusiasm among Democrats about alternative constitutional designs, but they can’t do anything about it now. But if they win in 2018 and 2020 or beyond, who knows?

Sean Illing

The Constitution doesn’t specify how many people should sit on the Supreme Court, and there is some momentum on the left for what’s called a court-packing strategy, which basically involves adding several ideologically sympathetic justices in order to create a more favorable Court.

Do you think this is a good idea?

Mark Tushnet

There has been a lot of discussion about this among law professors, and ultimately it comes down to a political judgment. Maybe it’s wise, maybe it isn’t — politics is not my area of expertise. But because it might turn out to be politically wise, it’s worth developing arguments for court-packing and explaining why the norms around tinkering with the Court’s composition might be worth breaking.

I think this is the role of constitutional scholars — to lay out all these arguments so that people understand the history and the stakes. But ultimately the decision to do it or not will have to be made by politicians, not law professors. And there is no way to know beforehand what the implications will be down the road.



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007406)



Reply Favorite

Date: October 12th, 2018 10:46 AM
Author: ;;;;.....;...;.............;;..;.;.;


tldr. Is he arguing that congress should just somehow get rid of judicial review, or is he saying that Art. III of the constitution just needs to be hit with some white-out?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007485)



Reply Favorite

Date: October 12th, 2018 10:33 AM
Author: THOT_RAVAGER

whoa this guy is from harvard law, he must be serious and really know what he's talking about

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007412)



Reply Favorite

Date: October 12th, 2018 10:36 AM
Author: DrakeMallard (Let's get dangerous)

https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html

For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007425)



Reply Favorite

Date: October 12th, 2018 10:37 AM
Author: Shia LaBOOF (LaMarcus)

>And taking a hard line seemed to work reasonably well in Germany and Japan after 1945

When did they ever go for a hard line re: japan?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007434)



Reply Favorite

Date: October 12th, 2018 11:16 AM
Author: animeboi

I agree. When shitlibs have lost the culture war, we need to show them no mercy.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007701)



Reply Favorite

Date: October 12th, 2018 11:43 AM
Author: benzo xx

180

https://images.google.com/imgres?imgurl=https%3A%2F%2Fmedia1.tenor.com%2Fimages%2F421aee6986e10a74dbc52aae7c3965ac%2Ftenor.gif%3Fitemid%3D3489493&imgrefurl=https%3A%2F%2Ftenor.com%2Fview%2Fwilly-wonka-and-the-chocolate-factory-willy-wonka-gene-wilder-nope-angry-gif-3489493&docid=Njicht7wzI25wM&tbnid=HBofgH2SAQV-DM%3A&vet=1&w=381&h=280&source=sh%2Fx%2Fim

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007867)



Reply Favorite

Date: October 12th, 2018 12:26 PM
Author: .,.,.,',..,.,.,"

"fuck Kennedy"

if that's what Tushnet says about the man who saved AA and created gay marriage, what does Tushnet say about Kav?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008169)



Reply Favorite

Date: October 12th, 2018 12:50 PM
Author: animeboi

"please don't hurt me"

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008372)



Reply Favorite

Date: October 12th, 2018 10:38 AM
Author: .,.,.,',..,.,.,"

http://xoxohth.com/thread.php?thread_id=3432577&mc=21&forum_id=2

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007436)



Reply Favorite

Date: October 12th, 2018 10:47 AM
Author: guy who gets it (donny)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007496)



Reply Favorite

Date: October 12th, 2018 10:35 AM
Author: put on these glasses or start eating that trashcan

Libs don't win anything in a fair election, even gay marriage was voted down in Commiefornia. Everything they've achieved was by court decision or Obama executive order.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007422)



Reply Favorite

Date: October 12th, 2018 10:38 AM
Author: JFC

this guy seems to suggest - although he does not explicitly say - that he is willing to give up the lib decisions where a con law was struck down as well the con decisions striking down a lib law

ie citizens united would go bye-bye and we would have no 1st amendment limitations on campaign finance regs

but so would obergefell so we could have a ban on gay marriage again

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007438)



Reply Favorite

Date: October 12th, 2018 10:40 AM
Author: .,.,.,',..,.,.,"

and state by state we might have abortion bans.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007452)



Reply Favorite

Date: October 12th, 2018 10:40 AM
Author: JFC

yes

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007454)



Reply Favorite

Date: October 12th, 2018 10:43 AM
Author: JFC

and TRUMP could deport all muslims

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007473)



Reply Favorite

Date: October 12th, 2018 11:50 AM
Author: ><<(^((*>

Xo Prop 8

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007911)



Reply Favorite

Date: October 12th, 2018 10:36 AM
Author: vonNeumann

Just so everyone here knows, I had Mark Tushnet as a professor at HLS (he taught Legislation and Regulation). He is Jewish and is a self-described socialist. Also he believes that HLS admissions should be done using a lottery system and have nothing to do with merit since in his view, all merit is based on privilege and everyone is equal. He is also 100% autistic.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007424)



Reply Favorite

Date: October 12th, 2018 10:39 AM
Author: put on these glasses or start eating that trashcan

did he give everyone in the class a B+?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007445)



Reply Favorite

Date: October 12th, 2018 11:11 AM
Author: vonNeumann

Don't know, but he gave me one.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007677)



Reply Favorite

Date: October 12th, 2018 10:42 AM
Author: ;;;;.....;...;.............;;..;.;.;


What's his moniker?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007464)



Reply Favorite

Date: October 12th, 2018 10:48 AM
Author: guy who gets it (donny)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007504)



Reply Favorite

Date: October 12th, 2018 10:48 AM
Author: Buck "The Club" Paulette

hoo boy, there's a lot to unpack here:

One of the more controversial figures in constitutional theory, he is identified with the 'critical legal studies' movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism".[16] Tushnet is a main proponent of the idea that judicial review should be strongly limited and that the Constitution should be returned "to the people." Tushnet is, with Harvard Law Professor Vicki Jackson, the co-author of a casebook entitled Comparative Constitutional Law (Foundation Press, 2d ed. 2006).

Personal life

Tushnet is a nonobservant Jew. His wife, Elizabeth Alexander, is a Unitarian,[17] and formerly directed the National Prison Project of the American Civil Liberties Union. She now works in private practice. Their daughter Rebecca Tushnet is a professor of law at Harvard Law School.[18][19] Their other daughter Eve is a celibate lesbian Roman Catholic author and blogger.[20][21]

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007506)



Reply Favorite

Date: October 12th, 2018 10:50 AM
Author: Baron Mark von Ironside

the good news is that it looks like he's an evolutionary dead end

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007517)



Reply Favorite

Date: October 12th, 2018 10:52 AM
Author: Baron Mark von Ironside

lol his daughter Rebecca is an expert on the law of engagement rings. what's her moniker?

https://tushnet.com/about/

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007540)



Reply Favorite

Date: October 12th, 2018 11:08 AM
Author: don't run nigga i see you

she gets de beers, he gets de tip: a critical analysis of gratuities in the diamond industry

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007647)



Reply Favorite

Date: October 12th, 2018 11:09 AM
Author: The Malicious Prepschool Allegations

He gets de beers, she gets de tip: Club Mandingo in the African Oral Tradition

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007659)



Reply Favorite

Date: October 12th, 2018 11:10 AM
Author: don't run nigga i see you



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007665)



Reply Favorite

Date: October 12th, 2018 11:09 AM
Author: Buck "The Club" Paulette

Tushnet is known for her fanfiction-related scholarship[1] and her legal advocacy work for the Organization for Transformative Works, a nonprofit fandom-related project that supports fanworks (such as fanfiction) through preservation and advocacy.[2][3]

OH THE PRESTIGE OF HARVARD, ljl at these "people".

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007661)



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Date: October 12th, 2018 11:20 AM
Author: ..,....,,............,,..,..,.


I had tushnet for property law. Worst professor I had in law school. Everyone just bought the “property law for dummies” and studied that instead. Her feedback on the final exam focused almost entirely on whether people referred to females by their first name and men by their title or last name, and how that was sexist.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007730)



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Date: October 12th, 2018 11:21 AM
Author: Buck "The Club" Paulette

Did she get into her extensive fanfic scholarship at all?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007738)



Reply Favorite

Date: October 12th, 2018 11:48 AM
Author: ..,....,,............,,..,..,.


Lol, no. Everyone said she looked like this guy:

https://goo.gl/images/9kBoRf

https://goo.gl/images/6nd6tT



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007898)



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Date: October 12th, 2018 1:43 PM
Author: N904PD

XO Eve Tushnet

Tushnet is celibate due to the Catholic Church’s ban on sex outside heterosexual marriage.[6][2] She does not support same-sex marriage, having stated that marriage should be reserved for heterosexuals, whose “relationships can be either uniquely dangerous or uniquely fruitful. Thus it makes sense to have an institution dedicated to structuring and channeling them."[5]

“I really think the most important thing is, I really like being gay and I really like being Catholic,” she says. “If nobody ever calls me self-hating again, it will be too soon."[5]

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008804)



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Date: October 12th, 2018 1:45 PM
Author: Baron Mark von Ironside

reminds me of this Alan Keyes line of argument

https://youtu.be/KrD8zvCUtWc

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008816)



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Date: October 12th, 2018 10:51 AM
Author: Baron Mark von Ironside

http://www.xoxohth.com/thread.php?thread_id=3715502&mc=11&forum_id=2

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007529)



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Date: October 12th, 2018 11:20 AM
Author: Judas Jones

Just so everyone here knows, I didn't get into HLS.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007729)



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Date: October 12th, 2018 11:43 AM
Author: David Morse



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007865)



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Date: October 12th, 2018 1:48 PM
Author: TIGHTENDcbooker



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008856)



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Date: October 12th, 2018 10:36 AM
Author: .,.,.,',..,.,.,"

The case for abolishing the Supreme Court

A Harvard law professor on whether it’s time to rethink the nation’s highest court.

By Sean Illing@seanillingsean.illing@vox.com Oct 12, 2018, 8:10am

When he was arguing for the ratification of the Constitution, Alexander Hamilton wrote that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” in part because he believed the federal courts would stand above the political fray and act as a bulwark against tyranny from all directions.

But it’s hard to defend the Supreme Court on these grounds today.

As my colleague Matthew Yglesias noted last week, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance — often on behalf of corporate interests. And the recent disaster that was the Brett Kavanaugh confirmation has further delegitimized the Court in the public’s mind.

So it’s perfectly reasonable to ask if we should abolish the Supreme Court, or at the very least strip the Court of its ability to overturn laws that it rules unconstitutional. If the Court is no longer a neutral arbiter of the law, if it’s gradually shape-shifting into a partisan weapon, then maybe it’s time to rethink its role in our constitutional system.

I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

A lightly edited transcript of our conversation follows.

Sean Illing

What would you say is the basic mission of the Supreme Court in our constitutional system?

Mark Tushnet

The Supreme Court’s role is to tell the people and the political branches what the limits of their power are. Sometimes that means rejecting conservative policies, and sometimes that means rejecting liberal policies. But the general role, as it’s come to be understood, is to police the boundaries of our political system.

Sean Illing

Do you think the Court competently fulfills this role today?

Mark Tushnet

Whether the Court is competently pursuing it depends on a couple of things. One is your assessment of the legal quality of the work they do. And another is, of course, your assessment of the merits of the limits that they are placing on political choice.

As to the latter, it’s just going to depend on your politics. For a while, liberals liked what the Court was doing, and then they didn’t. For a while, conservatives didn’t like what the Court was doing, and now they do.

Sean Illing

And what of the “legal quality” of the work they’re doing?

Mark Tushnet

I think the honest answer there is that, in the modern era, the quality has ranged from minimally competent legal analysis to extremely bad decisions that are announced without a clear or compelling explanation.

Sean Illing

I’m tempted to ask for examples of bad decisions, but let’s focus on the case for abolishing the Supreme Court, or at the very least for abolishing judicial review, which is the Court’s ability to decide whether a law by the government is constitutional.

Mark Tushnet

There are two components of the case for getting rid of judicial review. One is that, as a matter of basic democratic principle, the people ought to be able to consider policies and then vote on them without having the courts step in and say “no.” So from a democratic point of view, it’s hard to justify allowing the courts to single-handedly overrule popular will whenever they choose.

The second component is that judicial review may actually impair the public’s ability to engage in serious thinking about what the Constitution means, and what we want to do in light of what we think our Constitution says. In a way, the Supreme Court simply takes on this conversation for itself, and leaves the citizenry as bystanders.

Sean Illing

Does the Court’s power of judicial review come directly from the Constitution?

Mark Tushnet

I should start by saying I’m not a textualist or an originalist, which is to say I don’t think the meaning of the Constitution is stable or fixed from the time it was enacted. However, I think it was widely understood when the framers created a court in a system with a constitution that that court would have the power to invalidate legislation it deemed unlawful. That’s not written into the US Constitution, but it was clearly a background assumption at the time and has been ever since.

Sean Illing

How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?

Mark Tushnet

In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And, in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.

Sean Illing

And how does that kind of system work?

Mark Tushnet

The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”

Sean Illing

Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?

Mark Tushnet

Yeah, I do. I’m a big fan of the dialogic approach. And it’s worth noting that even very conservative legal scholars like Robert Bork have proposed this sort of system, which suggests this is something people across the ideological spectrum could get behind. And I’ve felt this way for my entire career, regardless of the ideological makeup of the Supreme Court.

Sean Illing

We have this idea of the Supreme Court as a bulwark against majority tyranny and minority oppression, but that’s not the reality. There have been glaring exceptions, especially in the 1950s and ’60s, but in general the Court has continually defended the powerful against the weak — from slaveholders to segregationists to corporations. Why should the individual citizen feel invested in the Court at this point?

Mark Tushnet

If you look at the overall course of US Supreme Court history, the description that you’ve offered is basically correct. But there are exceptions, as there always are, to that kind of generalization. One is the relatively brief Warren Court era, which still occupies the imagination of many people who think about the Constitution.

We’ve had the Brown v. Board of Education decision and Roe v. Wade, and then, more recently, the Obergefell v. Hodges decision that legalized same-sex marriage — and all of these decisions were empowering for different segments of the population.

The big question is whether the gains from those kinds of protections of minority interests are substantial enough to outweigh the Court’s interference with legislation on behalf of the most powerful elements of our society. If you’re focused on many recent decisions, like Citizens United, the Court certainly seems to be favoring corporate power, but the picture is less clear when you step back and evaluate it over a much longer period of time.

Sean Illing

You alluded to this a minute ago, but I want to push you a bit more on it. Democracy implies, at the very least, that citizens are allowed to choose the policies that govern their lives, either directly or indirectly. But the Court’s primary function seems to be to undermine majority will when it deems it necessary. It’s probably wise to have constitutional safeguard of some sort, but do you think the current arrangement is a sustainable contradiction?

Mark Tushnet

If you think people vote for policies without paying any attention to the Constitution, then you might want someone watching closely and stepping in to intervene at exceptional moments, and the courts are where you want that to happen. My own view is that it’s fine if you have some opportunity to respond afterward, which is why I prefer a dialogic system.

But it’s also the case that in many of the most contentious issues, the people have reasoned constitutional judgments, and the Court just comes in and says the people are in error. But that isn’t always the case. Sometimes it’s a legitimate disagreement between the voters and the Court, and then it comes down to a political judgment. This is when the role of courts becomes very problematic.

Sean Illing

Do you support imposing term limits on justices?

Mark Tushnet

I’ve signed a proposal for 18-year term limits. I think over time that might have some effect. It won’t immediately have much effect because in some ways the damage has already been done, but it would make the process more regular and predictable, and norms of reciprocity might develop, which we desperately need.

Sean Illing

Is there some other way forward, perhaps turning the Supreme Court into a body of top legal thinkers in the country, and instead of having a fixed number of justices review each case, we have a specified number of randomly chosen justices selected for each case?

Mark Tushnet

Well, Sweden does something like that — and Sweden is not a terrible place to live. You probably could design something that would work effectively. Again, the details would matter, and reconciling that with the existing Constitution would be very tricky, but sure, it’s conceivable. I think there is some enthusiasm among Democrats about alternative constitutional designs, but they can’t do anything about it now. But if they win in 2018 and 2020 or beyond, who knows?

Sean Illing

The Constitution doesn’t specify how many people should sit on the Supreme Court, and there is some momentum on the left for what’s called a court-packing strategy, which basically involves adding several ideologically sympathetic justices in order to create a more favorable Court.

Do you think this is a good idea?

Mark Tushnet

There has been a lot of discussion about this among law professors, and ultimately it comes down to a political judgment. Maybe it’s wise, maybe it isn’t — politics is not my area of expertise. But because it might turn out to be politically wise, it’s worth developing arguments for court-packing and explaining why the norms around tinkering with the Court’s composition might be worth breaking.

I think this is the role of constitutional scholars — to lay out all these arguments so that people understand the history and the stakes. But ultimately the decision to do it or not will have to be made by politicians, not law professors. And there is no way to know beforehand what the implications will be down the road.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007428)



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Date: October 12th, 2018 10:37 AM
Author: marshall mathers

hold the phone. a socialist jew doesn't want SCOTUS anymore?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007433)



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Date: October 12th, 2018 10:39 AM
Author: .,.,.,',..,.,.,"

and he has a fantasy about "the people" wielding power directly? just who does he think will be in power and what would happen to socialist Jews?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007443)



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Date: October 12th, 2018 10:41 AM
Author: ;;;;.....;...;.............;;..;.;.;


1. Good luck, add that to your wish list of abolishing the electoral college.

2. EVERY TIME

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007458)



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Date: October 12th, 2018 10:48 AM
Author: guy who gets it (donny)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007510)



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Date: October 12th, 2018 10:44 AM
Author: Baron Mark von Ironside

>> The big question is whether the gains from those kinds of protections of minority interests are substantial enough to outweigh the Court’s interference with legislation on behalf of the most powerful elements of our society. If you’re focused on many recent decisions, like Citizens United, the Court certainly seems to be favoring corporate power, but the picture is less clear when you step back and evaluate it over a much longer period of time. <<

Why should the Court's decisions necessarily be evaluated on this basis? Sometimes a decision favoring powerful interests is the right one at the time, and it would be up to the legislature to change it (or to amend the Constitution).

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007478)



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Date: October 12th, 2018 10:47 AM
Author: put on these glasses or start eating that trashcan

fundamentally it comes down to Trump said pussy and still won, so we have to destroy every cornerstone institution of American society because "reasons"

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007493)



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Date: October 12th, 2018 10:49 AM
Author: ;;;;.....;...;.............;;..;.;.;


Kind of seems like he's using a lot of words to say that he thinks that decisions that he doesn't like should not count.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007516)



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Date: October 12th, 2018 10:50 AM
Author: Baron Mark von Ironside

cr he's basally saying I want X outcome

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007522)



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Date: October 12th, 2018 10:54 AM
Author: andre pond cummings

in his defense, he'd definitely be publishing this exact article if the court just solidified a solid shitlib majority

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007551)



Reply Favorite

Date: October 12th, 2018 10:59 AM
Author: '"''"'"'



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007578)



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Date: October 12th, 2018 1:52 PM
Author: IronMonkey

lol

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008879)



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Date: October 12th, 2018 10:57 AM
Author: Baron Mark von Ironside

>> As my colleague Matthew Yglesias noted last week, the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance <<

Isn't this also the point of the Court?

I mean, these bros talk about powerful interests and majority tyranny, but then they say that the Court undermines democratic outcomes. Isn't that the whole point of the Court? To prevent the democratic majority from enacting laws that run afoul of the Constitution? These guys seem to worry about democratic majority rule in some cases, but not others.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007568)



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Date: October 12th, 2018 10:59 AM
Author: ;;;;.....;...;.............;;..;.;.;


"Matthew Yglesias" ..."the Court is now"

OK, thanks, you're just talking bullshit.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007584)



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Date: October 12th, 2018 11:02 AM
Author: .,.,.,',..,.,.,"

and they use completely different language when the courts protect abortion or strike down "no sharia" laws. it's transparently hypocritical.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007599)



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Date: October 12th, 2018 11:04 AM
Author: Baron Mark von Ironside

it drives me insane.

i don't really have a huge problem if someone has a different viewpoint than me, but shit like this is so transparently unprincipled

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007610)



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Date: October 12th, 2018 11:06 AM
Author: ;;;;.....;...;.............;;..;.;.;


It's this attitude that they speak from a point of moral authority and/or certitude of correctness. They frame their opinions in such a way that they cannot be debated, it's either agree or be ridiculed for being stupid. Yet the arguments themselves are nakedly stupid and partisan.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007630)



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Date: October 12th, 2018 11:07 AM
Author: Baron Mark von Ironside

one of the most dangerous aspects of modern day liberalism is that they honestly believe that they have 100% moral authority on every single issue no matter what.

that's dangerous. it reminds me of the crusades when each side thought it had 100% divine authority.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007643)



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Date: October 12th, 2018 11:08 AM
Author: The Malicious Prepschool Allegations



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007649)



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Date: October 12th, 2018 11:09 AM
Author: don't run nigga i see you

a political orientation, a religion, a mental illness: the liberalism story

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007662)



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Date: October 12th, 2018 11:06 AM
Author: guy who gets it (donny)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007632)



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Date: October 12th, 2018 11:12 AM
Author: LathamTouchedMe

In the interview he (along with the vox "reporter") argue that the Court almost always sides with the "Goliath" (big corp., rich interests) when it is preventing a tyranny of the majority and that this is a feature, not a bug. I don't buy the argument but that is their response to what you are saying.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007680)



Reply Favorite

Date: October 12th, 2018 11:18 AM
Author: ;;;';';;';;;;;;''';';''';


Why don’t you buy it

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007719)



Reply Favorite

Date: October 12th, 2018 11:34 AM
Author: LathamTouchedMe

I do think they raise legitimate points about the inability of the court system to rule on many constitutional matters without a heavy dose of political philosophy and public policy. I've always said that as you go up the chain in our court system (federal or state) the system's determinations become more ideological and policy-oriented. Basically, our highest courts are making policy. I think a lot of people have caught on to this and realize that the "majesty of law" is a bunch of bs. But the solution shouldn't be to toss aside the court. The supreme court is an important check in our system. We should just be more honest about what it is (a super-legislature balancing legal doctrines with policy) and treat it more like the Federal Reserve. Appointments to the Fed are less partisan-hackery and more technocratic. I don't know how to get the Senate and the President to do that (maybe increase the number of senators to appoint a justice to 2/3 so that only pragmatic "law and econ" judges get appointed as compromises).

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007819)



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Date: October 12th, 2018 12:28 PM
Author: JFC

probably bc (((GC))) is united on what federal reserve policy should be while it is also in (((GC)))'s interest to keep the masses distracted with scotus culture wars

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008187)



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Date: October 12th, 2018 1:52 PM
Author: IronMonkey

No. That should be a rare exercise of the Court's power. The Court should mostly be interpretation of the legislature's power, not undermining it.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008889)



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Date: October 12th, 2018 1:55 PM
Author: Baron Mark von Ironside

Doesn't that depend on what the legislature is doing with its power?

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008905)



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Date: October 12th, 2018 1:57 PM
Author: IronMonkey

Sure. If the legislature is constantly violating the Constitution, then the Supreme Court needs to rein it in. But I don't think legislatures are actually constantly violating the Constitution.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008930)



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Date: October 12th, 2018 11:03 AM
Author: Voodoo Child

I don't think that abolishing the Supreme Court would work out as planned for libs. They should try it!

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007604)



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Date: October 12th, 2018 11:11 AM
Author: GOTTA MOVE FAST

Stopped reading at "Matthew Yglesias noted"

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007675)



Reply Favorite

Date: October 12th, 2018 11:23 AM
Author: ..,....,,............,,..,..,.


Liberals have been on an 80-year winning streak with SCOTUS, and as soon as the court starts to *slightly* become more centrist they call for abolishing it.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007757)



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Date: October 12th, 2018 11:40 AM
Author: Metal Up Your Ass

Odd case!

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007849)



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Date: October 12th, 2018 11:41 AM
Author: bill laimbeer (old John L.)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007858)



Reply Favorite

Date: October 12th, 2018 11:46 AM
Author: guy who gets it (donny)



(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007884)



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Date: October 12th, 2018 12:22 PM
Author: .,.,.,',..,.,.,"

true. but Tushnet is a different kind of guy. he's one of the original crits. he never bought into "law" as being anything other than pure politics.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008130)



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Date: October 12th, 2018 11:53 AM
Author: ><<(^((*>

" . . . but in general the Court has continually defended the powerful against the weak . . . Why should the individual citizen feel invested in the Court at this point?"

Key point here

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37007939)



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Date: October 12th, 2018 1:47 PM
Author: IronMonkey

"the Court is now a blunt political instrument, used repeatedly to undermine outcomes of democratic governance"

Well, yeah. Luckily it looks like we are going to trend away from that kind of abuse.

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008831)



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Date: October 12th, 2018 1:48 PM
Author: GOTTA MOVE FAST

Respect ARE INSTITUTIONS, bigot

(http://www.autoadmit.com/thread.php?thread_id=4104106&forum_id=2#37008850)