Octopus Overlords

"Texas already long ago sued the federal government about having to incur the costs of the education program, in a case called Plyler versus Doe," Abbott said, speaking during an appearance on the Joe Pags show, a conservative radio talk show. "And the Supreme Court ruled against us on the issue. ... I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler versus Doe was issued many decades ago."

Dogstar wrote: Thu May 05, 2022 6:03 am Under the soon-to-be-minted precedent of “well, if it’s not explicitly in the Constitution “…

malchior wrote: Thu May 05, 2022 9:49 am I mean it makes sense if you look at it from Greg Abbott's POV. He probably believes these kids are destined to pick crops so he doesn't need to burden the public education budget with them. They don't need to read or write.

Little Raven wrote: Wed May 04, 2022 11:22 am

ImLawBoy wrote: Wed May 04, 2022 11:17 amAre you as sure on this point as you were that Roe v. Wade wouldn't be overturned and that people were overreacting to the right-leaning court?

Quite. I don't see Washington ever allowing a state to secede, regardless of which state it is or which party is in charge. Democrats would never let red states go and Republicans would never let blue states go....nor should they.

The Union is the most important thing we have. As long as we have that, things can always get better, no matter how bleak they are. If we ever balkanize, then we're truly lost. Anything is better than that.

Blackhawk wrote: Thu May 05, 2022 9:52 am

malchior wrote: Thu May 05, 2022 9:49 am I mean it makes sense if you look at it from Greg Abbott's POV. He probably believes these kids are destined to pick crops so he doesn't need to burden the public education budget with them. They don't need to read or write.

It makes even more sense if you look at it from a medieval abbot's POV. If all they're going to be doing is picking crops, then all that reading is just going to make them rebellious and get them thinking above their station. After all, the kids who really need to be able to read will be in families that can afford private tutoring.

Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

I think it most likely that the leak came not from the "radical left," but from the right, from the chambers of one of the Justices in the majority. The timing points in this direction; if the point was to "ignite a political firestorm" and to "buy the outrage-industrial complex a few extra days to scream nonsense about what the Court might rule," why wait until May 2d to activate the leak? That doesn't make a lot of sense to me. I suspect something happened between February 10 and May 2 to cause the leaker to think that an advantage could be gained by leaking Justice Alito's first draft (which, for all we know, may well have been superseded by others in the intervening weeks) at this late date. What might that something have been?

I'm guessing that someone - most likely Justice Roberts - from the majority is attempting to craft a compromise that would see Mississippi prevail without overruling the Roe-Casey line of precedent; if he can persuade one other Justice from the majority to join him, their opinion would be the "controlling" opinion for the Court in what would then be a 4-2-3 split. [This is precisely what happened in Casey].

So I'm thinking that the leak was indeed designed to put pressure on the Court, but pressure from the right - to make it more embarrassing and more difficult for any of the other Justices in the majority to peel off from the majority and join Roberts' opinion.

malchior wrote: Thu May 05, 2022 9:49 am I mean it makes sense if you look at it from Greg Abbott's POV. He probably believes these kids are destined to pick crops so he doesn't need to burden the public education budget with them. They don't need to read or write.

Holman wrote: Thu May 05, 2022 6:00 pm Alito's leaked opinion cites 17th-century English jurist Sir Matthew Hale in declaring a long tradition of opposition to abortion.

Here are two interesting threads about Sir Matthew Hale:

El Guapo wrote: Fri May 06, 2022 12:56 pmFWIW I don't doubt that Hale was a true 17th century asshole, but these threads are going off the deep end on the implications of the citation. Alito is just citing Hale (a leading 17th century jurist) as support for the proposition that abortion has historically been a punishable offense. It's a factual citation that doesn't say anything about approving of Hale's beliefs or legal theories.

malchior wrote: Fri May 06, 2022 1:12 pm

El Guapo wrote: Fri May 06, 2022 12:56 pmFWIW I don't doubt that Hale was a true 17th century asshole, but these threads are going off the deep end on the implications of the citation. Alito is just citing Hale (a leading 17th century jurist) as support for the proposition that abortion has historically been a punishable offense. It's a factual citation that doesn't say anything about approving of Hale's beliefs or legal theories.

I kind of get what you're saying about it just being a citation. I also get where someone might say this citation has issues because of relevant context. In the sense that the legal theory essentially comes from a time where women weren't treated as equals and a specific human who has a documented history of misogyny.

On top you have the concern that several of Alito's citations are stretches or generally wrong on abortion legality. It seems like fair play to point out anywhere where Alito is on shaky ground overall.

Still it is a bit overboard, it is a big helping of politics, but that is the door that Alito himself opened. And if people learn about the type of thinking that is influencing/justifying this opinion? I can't say it is all that unfair at this point.

El Guapo wrote: Fri May 06, 2022 1:20 pmYeah, whether Alito is right about his representations of the history of abortion I don't really know.

It's also fair that relying on original intent as the cornerstone of constitutional interpretation means relying in part on the beliefs of mostly 17th and 18th century thinkers that have, well, 17th and 18th century beliefs. In other words, assuming that it's correct that English / early American law deemed abortion to be a punishable offense, should that matter in deciding whether abortion is a constitutional right in the 21st century? Seems like a decent reason to not use that constitutional philosophy.

All I'm pointing out is that the specific threads are saying that Alito's cite means that he's endorsing Hale's beliefs, and that's incorrect.

But he referred a couple of times to the “unfortunate events” of the past week, and in a question-and-answer session led by a former clerk, he said he worried about declining respect for institutions and the rule of law.

Holman wrote: Mon May 09, 2022 7:52 pm Because protesters yelled at Brett Kavanaugh's house, Congress has swept into action to produce a bill "protecting family members of SC justices" in 48 hours. Presumably they weren't protected before, or something.

Seriously.

malchior wrote: Tue May 10, 2022 3:06 pm The article is worth a read because there are signs that the shift on the court is too radical even for some Republicans. That's encouraging. The question we now have to figure out is whether those Republicans will leave the coalition or not.

malchior wrote: Tue May 10, 2022 3:06 pm

The last time Yahoo News/YouGov asked about confidence in the court was in September 2020, a few days after liberal Justice Ruth Bader Ginsburg died and a few days before Trump nominated conservative jurist Amy Coney Barrett to replace her.

Back then, 70% of registered voters said they had either “some” (50%) or “a lot” (20%) of confidence in the court, and 30% said they had either “a little” (23%) or “none” (7%).

Today, just half of voters still express some (37%) or a lot (14%) of confidence in the court, while the other half now expresses either a little (24%) or none (26%).

malchior wrote: Tue May 10, 2022 3:06 pm The article is worth a read because there are signs that the shift on the court is too radical even for some Republicans. That's encouraging. The question we now have to figure out is whether those Republicans will leave the coalition or not.

Defiant wrote: Tue May 10, 2022 4:38 pmSince it doesn't say what it collapsed from...

El Guapo wrote: Wed May 11, 2022 9:07 am Reading about the history of abortion politics, and as a side note I forgot that Alito only wound up on the court after the Harriet Miers nomination got tanked, in part by the pro-life coalition in the GOP not feeling that she was sufficiently committed to overturning Roe. Kind of curious how things would be different with a Justice Miers on the court.

malchior wrote: Wed May 11, 2022 9:20 am

El Guapo wrote: Wed May 11, 2022 9:07 am Reading about the history of abortion politics, and as a side note I forgot that Alito only wound up on the court after the Harriet Miers nomination got tanked, in part by the pro-life coalition in the GOP not feeling that she was sufficiently committed to overturning Roe. Kind of curious how things would be different with a Justice Miers on the court.

I imagine Miers would have been more in line with Roberts and chosen a more moderate path. It is hard to get all the 'math' right here to really figure out how it would have gone. The problem we see ahead and the one that will batter this court is it is clear that hard line states only went after Roe when it was clear to them they'd succeed. It also possibly is an indicator or hint that this radicalization was planned to some extent. Would they do that with Mier in the mix? I don't think so. I also imagine we might still have Kennedy too.

Another interesting thing to me is that Alito laid out the blueprint about how to essentially mislead the public on obfuscating that motive. Behind closed doors it seems likely they reassured how they'd vote on it. In public it was another matter and the 3 Trump appointees essentially answered questions about Roe publicly in much the same way as Alito did. Which is that they all generally called it settled. Yet Alito writes it was wrongly decided from the get go.

El Guapo wrote: Wed May 11, 2022 9:45 amYeah, they definitely got a schtick down. It's funny at the same time because I don't know how many informed people were actually deceived. But that wasn't really the point - it was give enough sound bites so that the mainstream media will report that you said that Roe is settled and so that Susan Collins and the like can pretend that they are convinced and can use that to answer questions when they run for reelection.

Also sort of a funny world that we're in where I'm ruing Harriet Miers not getting a SCOTUS seat.

and the idea that NOBODY will ask the court to overturn griswold is belied by (1) the LA bill that would criminalize some forms of contraception; (2) this OK bill that would do the same; ...

Oklahoma Senate approves bill requiring parental consent for birth control, vaccinations
Senate Bill 1225 would prevent most Oklahoma residents those up to age 18 from self-consenting to vaccinations and female contraceptives.House lobs $400 million 'live round' at the SenatePassel of med…
https://tulsaworld.com/news/local/oklah ... a3e45.html
(3) the fact that conservatives elide the difference between abortion and contraception by insisting that some common methods of contraception (IUDs & emergency contraception) are abortifacients;
(4) this MO bill (which criminalizes some contraception on that very ground)

Contraception, Planned Parenthood dominate debate as Missouri Senate returns to Capitol • Missouri Independent
Missouri lawmakers convened in special session to extend a tax crucial to Medicaid funding, but the debate focused on abortion.
https://missouriindependent.com/2021/06 ... o-capitol/
(5) a statement by the MS governor saying he won't rule out criminalizing contraception and overruling Griswold.

Mississippi Governor Won't Rule Out a Possible Ban on Birth Control If Roe Is Overturned
Mississippi Gov. Tate Reeves declined to rule out a possible state ban on forms of birth control if Roe v. Wade is overturned, saying only that it's 'not what we are focused on at this time'
https://people.com/health/mississippi-g ... verturned/
I could go on, but there's a limit to the amount of time I'm willing to spend refuting non-arguments by trolls. So /end.

Wondering why the Texas social media law is such a big deal for big (over 50M users) social media companies?

Let's look at two elements of it -- the "anti-censorship" element, and the enforcement mechanism --from a litigator's view. There are other problems as well.
/1
/2 The anti-censorship provision says the site can't censor based on the viewpoint of the person or the person's content. So, clearly, that would mean that you can't censor for saying "boo abortion" or "yay miniature American flags."
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/3 But what CAN the site censor? Well, the site can censor content that's illegal, that's outside the protection of the First Amendment, and certain specific threats. That's a very narrow range.
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/4 And the site can clearly censor some other things. What other things? Well -- I guess things that are not "viewpoint" based.

What does that mean, exactly? And how easy is it to determine through litigation?

Those are excellent questions, my friend.
/5 See, I say that the site can censor other things because the law REQUIRES the site to post its "Acceptable Use Policy" about "the types of content allowed on the social media policy."
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/6 Now, apparently, this means that a site may discriminate based on TYPES of content, just not VIEWPOINT of content. Like, I guess, the site can say "no swearing" but can't say "no swearing about any of @nickgillespie's leather jackets." Or "no porn" but not "no anti-war porn."
/7 [I assume there is anti-war porn.]
/8 So. Is that fine and dandy? Not really. The distinction is frequently elusive. It's like the First Amendment distinction between content discrimination and viewpoint discrimination -- often fuzzy, often subject to protracted litigation.

But it gets worse.
/9 See, the Texas law lets the AG, or any aggrieved user, sue if they think the site censored improperly, and get attorney fees and costs and injunctions if they win. If the Texas law stands, there's no more saying "it's Twitter's First Amendment right to moderate."
/10 Say Twitter has a no-swearing policy and I say "@DavidAFrench has a shit-ass opinion about Aquaman." Twitter suspends me. All I have to do is sue and claim Twitter's REAL reason for censoring me is my viewpoint on David, or Aquaman, not my swearing. Twitter has to litigate it
/11 This will be made easier because automated moderation on scale is always difficult and usually inconsistent and I will be able to point to other times when non-anti-Aquaman swears weren't punished. And people ALWAYS think they're being singled out. It's in the GOP Platform.


/12 So now even if the line between viewpoint and content is easy, and it's NOT, every time a site censors someone for some CONTENT outside their acceptable use policy, if it happened in a remotely controversial context, the user can claim it was actually viewpoint-based and sue.
/13 We're already in the era of performative litigation, and there are tons of orgs out there eager to fund litigation, and it's cheap and easy to do abusive pro se litigation. The result: a flood of bullshit lawsuits.

It gets worse.
/14 Texas stuck language in the bill making it deliberately harder for sites to defend claims. First, it made it clear that people can keep suing in different Texas courts until a court with authority over ALL of those courts says the law's invalid.
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/15 Furthermore Texas limited nonmutual issue and claim preclusion -- a fancy way of saying if the site goes into a trial court and says "we already won this issue in another case down the hall" the court says "doesn't matter, this is a different case."
/16 Those are all things you'd do if you wanted to make litigation as attractive, expensive, and difficult to defend as possible. Like if you were doing something crazy and telling people to sue over abortions or something.
/17 Anyway, that's the short version of just ONE problem: the law creates a vague and unworkable "acceptable use" vs. "no viewpoint discrimination" conflict, incentivizes people to bring frivolous suits, and ensures endless litigation.
/18 The only practical approach, short of overturning the law, is to make your Acceptable Use policy as broad as the law, allowing EVERYTHING that's not illegal. Please welcome frontal nudity to Club Penguin!
/19 But even that "fine, we'll have a sewer" approach doesn't solve the problem, because every time you censor someone for one of the "permitted" things (threats, say), the user will claim it wasn't a real threat and you were actually after their viewpoint.
/20 I've been describing a practical, litigator-perspective problem. From the perspective of a fan of the First Amendment, the worse problem is that Texas and the Fifth Circuit have decided sites can't have free speech or free association any more.

/end
/21 PS: thanks to David Greene for pointing out something I forgot. The law prohibits viewpoint discrimination even based on viewpoints NOT EXPRESSED ON THE SITE. So all you have to do is say "they censored my porn because I'm a Proud Boy offline."