should Ginsburg (and maybe Breyer) retire
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September 27, 2021, 04:38:58 PM

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  should Ginsburg (and maybe Breyer) retire
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IceSpear
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« Reply #50 on: March 22, 2014, 09:41:46 PM »

First, Romney WILL NOT BE THE GOP NOMINEE. That will be either Ron Paul or Herman Cain. Second, get ready in event of GOP victory, in all but the case of Mitt a one Andrew Napolitano will be a coming. Once he's in kiss abortion bye bye.


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ShadowRocket
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« Reply #51 on: March 26, 2014, 03:36:25 PM »

Due to her age and past health problems, Ginsburg should. At the end of the day no one knows how 2016 is going to play out, so better for he to leave now while Obama is in office. I'm not sure about Breyer. He's only a few years younger, but doesn't seem to have had health problems. So he could conceivably wait past 2016. But then that raises the question of what happens if the GOP candidate is elected in '16 and then subsequently reelected in 2020? So maybe its better that he retired now in order to prevent the court from tilting further to the right. 
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True Federalist (진정한 연방 주의자)
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« Reply #52 on: March 26, 2014, 04:32:13 PM »

For that matter there is no guarantee of how 2014 will go.  While I don't think the chances of a Republican takeover of the Senate are as high as Nate Silver does, it is possible and even more possible is such a slim Democratic control that Obama would have to nominate someone far more moderate than Ginsberg as her replacement just to secure approval.
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Clarence Boddicker
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« Reply #53 on: March 27, 2014, 08:58:37 AM »

Best to just let sleeping dogs lie now. The Democrats will probably win back the Senate in 2016 anyway if they lose it this election.
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AverroŽs Nix
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« Reply #54 on: March 27, 2014, 09:16:34 AM »

Yes. I've read arguments to the contrary, but they all make the fatal mistake of assuming that this is about her when the issues at at stake are larger by an order of magnitude than any single person and her accomplishments. Whatever it means for Ginsburg to be on the Court, the implications of that are far less significant than the outcome of a single important case.
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DemPGH
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« Reply #55 on: March 27, 2014, 08:18:23 PM »
« Edited: March 27, 2014, 08:20:10 PM by DemPGH »

Yes, and for very similar reasons as Nix. Additionally, I can't say how much I wish Kennedy would retire. How quickly he's gone from "moderate" to "dinosaur."

We're in a transitionary period. Not all that terribly long ago, slavery - slavery - was considered constitutionally acceptable. Beyond unthinkable now. Remember, our abolition came well after western Europe's, particularly England's, and only after a civil war. Point is, society in America really is moving forward at this point in time, at least socially. Five old guys in black robes should never, ever be permitted to hold back that progress.
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The Democratic Party Left Me
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« Reply #56 on: March 27, 2014, 09:29:19 PM »

Yes, and for very similar reasons as Nix. Additionally, I can't say how much I wish Kennedy would retire. How quickly he's gone from "moderate" to "dinosaur."

We're in a transitionary period. Not all that terribly long ago, slavery - slavery - was considered constitutionally acceptable. Beyond unthinkable now. Remember, our abolition came well after western Europe's, particularly England's, and only after a civil war. Point is, society in America really is moving forward at this point in time, at least socially. Five old guys in black robes should never, ever be permitted to hold back that progress.

He was never a moderate, he's a libertarian. 
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DemPGH
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« Reply #57 on: March 28, 2014, 11:01:06 AM »
« Edited: March 28, 2014, 11:06:30 AM by DemPGH »

Yes, and for very similar reasons as Nix. Additionally, I can't say how much I wish Kennedy would retire. How quickly he's gone from "moderate" to "dinosaur."

We're in a transitionary period. Not all that terribly long ago, slavery - slavery - was considered constitutionally acceptable. Beyond unthinkable now. Remember, our abolition came well after western Europe's, particularly England's, and only after a civil war. Point is, society in America really is moving forward at this point in time, at least socially. Five old guys in black robes should never, ever be permitted to hold back that progress.

He was never a moderate, he's a libertarian.  

The other part of my reasoning was that he also is older than what a lot of people think. As to your point, in ways, but his record on police power is surely not libertarian, and he's probably very center-right on social issues at this point in time.

We'll see how he rules in the Hobby Lobby case, which I think could have really broad ramifications. It really could conceivably allow corporations (probably more local, smaller companies), using the "person" argument, to opt out of all kinds of laws and regulations that are "morally offensive." So we'll see how limited a win Hobby Lobby gets.

As is typical, Kennedy gave indication that he could go either way on the Hobby Lobby case. He was very skeptical of a company pushing its religious beliefs on employees, which is precisely what Hobby Lobby is doing, but then he pivoted abruptly and said that to rule against Hobby Lobby could lead to companies being forced to pay for abortions. A lot of people went, "Huh?" because it's a poor hypothetical for a lot of reasons. So we shall see.
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True Federalist (진정한 연방 주의자)
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« Reply #58 on: March 28, 2014, 11:57:37 AM »

The only reason the Hobby Lobby case is even an issue is because thru the tax code we encourage people to get health insurance from their employers, which leads to them becoming involved in personal details of their employees that should be none of their business.  If a ruling in favor of Hobby Lobby causes Democrats to start acting to dismantle the current employer provided system, then in the long run that'll be a good thing, tho whether that would more than offset the short term problems such a ruling would cause depends on how long that long run turns out to be.
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TDAS04
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« Reply #59 on: March 28, 2014, 12:05:41 PM »

Yes, while there is still a Democratic president that would appoint progressives, and a senate that would confirm them.
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True Federalist (진정한 연방 주의자)
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« Reply #60 on: March 28, 2014, 12:35:11 PM »

Yes, while there is still a Democratic president that would appoint progressives, and a senate that would confirm them.

By that standard, Perhaps Ginsburg should wait until after 2016. Wink
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Orser67
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« Reply #61 on: March 28, 2014, 04:13:51 PM »

Personally I think one of them absolutely should if they think a like-minded successor would be confirmed. As much as Republicans are pissed about filibuster reform, I think if Obama picked someone center-left he could probably still get Murkowski, Kirk, and Collins, as well as two of McCain, Flake, Chambliss, Johanns, Heller, Ayotte, Portman, Alexander, Toomey, and post-primary win Graham.

Also, I always thought it would be interesting if a justice tried to choose his own successor. For example, Kennedy would tell Obama he'd retire, but only if Obama agreed to nominate Merrick Garland. Well, at least it could make a decent B plot on House of Cards.
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bullmoose88
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« Reply #62 on: March 30, 2014, 09:31:17 PM »

The only reason the Hobby Lobby case is even an issue is because thru the tax code we encourage people to get health insurance from their employers, which leads to them becoming involved in personal details of their employees that should be none of their business.  If a ruling in favor of Hobby Lobby causes Democrats to start acting to dismantle the current employer provided system, then in the long run that'll be a good thing, tho whether that would more than offset the short term problems such a ruling would cause depends on how long that long run turns out to be.

I still don't get how a corporation could have religious beliefs, or in the alternative, why the religious beliefs of a majority (or more of its shareholders, I realize HL is a closely held corporation) should really matter given that HL is its own "person."  Are we piercing the veil only when it suits a certain faction here?
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True Federalist (진정한 연방 주의자)
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« Reply #63 on: March 30, 2014, 10:52:25 PM »

The only reason the Hobby Lobby case is even an issue is because thru the tax code we encourage people to get health insurance from their employers, which leads to them becoming involved in personal details of their employees that should be none of their business.  If a ruling in favor of Hobby Lobby causes Democrats to start acting to dismantle the current employer provided system, then in the long run that'll be a good thing, tho whether that would more than offset the short term problems such a ruling would cause depends on how long that long run turns out to be.

I still don't get how a corporation could have religious beliefs, or in the alternative, why the religious beliefs of a majority (or more of its shareholders, I realize HL is a closely held corporation) should really matter given that HL is its own "person."  Are we piercing the veil only when it suits a certain faction here?

While Romney got excoriated for saying it, corporations are people too in that they are groups of people.  While for-profit corporations typically place that as their only consideration, they need not.  Nor is necessarily against the profit motive if a for-profit corporation takes stands that may cause a certain segment of potential customers to view it favorably and thus spend their money buying that corporation's profits. So the idea that corporations should never base their decisions on moral principles is pure bunk and generally only brought up when a corporation does a decision that offends someone else's moral principles.

Now it certainly is the case that what Hobby Lobby wants to do here offends some people.  From a point of pure economics, it potentially could be an adverse decision financially.  However more broadly, those running Hobby Lobby might not be basing their value function to be maximized on pure dollar and cents terms.  Hence an adverse financial decision could still conceivably be the economically smart choice for them because their economics encompasses more than fiscal maximization.

As for your point that shareholders might not share the vision of management of how best to maximize the value of the corporation, that's true regardless of whether a company sticks to a purely fiscal sense of maximization or not.  Those shareholders have the option getting a sufficient number of shareholders to agree with them to either force management to change its policies or to change to a management that favors different policies.  If they prove unsuccessful in that option, then if find that the course does not maximize value for them, then they can sell their shares and invest in a company that acts more in accordance with what they want done.

To repeat, the fact that measurement of value is not being limited to fiscal terms does not change that, it just makes maximizing value for everyone involved more complicated.
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bullmoose88
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« Reply #64 on: March 31, 2014, 06:34:22 AM »

Can a corporation be baptized, take communion, or convert? I know what your response to that (admittedly sort of absurd) question is likely to be.  Obviously we haven't gotten into the realm of the wacky yet with say the Jehovah's witnesses or Christian scientists taking over a company and denying certain more well settled medical benefits.  At least yet.

But I guess my point is we're dealing with a very closely held company here. Obviously smaller proprietorships, and other entities are probably too small to be subject to aca and larger (generally c-corp type) entities probably have shareholders who aren't, by definition so close to the company. Ordinarily, corporations are used to shield their shareholders from liability (well one of the main reasons cue the Spanish Inquisition joke) but if basically were going to grant a religious exemption to a corporation, especially a closely held one, because its shareholders have a faith based objection, I get the vibe that perhaps that this corporation is perhaps too closely held and perhaps isn't its own distinct person that deserves the veil. We may not be invoking under capitalization or other of the traditional grounds for piercing but the religious argument here strikes me as one that sort of goes in the direction of "gee, if hobby lobby seeks to refuse and change the law to allow it to refuse to provide certain healthcare benefits because the family that runs it has an objection is it really so distinct from its owners to shield it from liability. Am I completely off base here?  Am I wrong in thinking that money-conservatives should pause before getting on the hobby lobby band wagon?
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True Federalist (진정한 연방 주의자)
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« Reply #65 on: March 31, 2014, 08:16:56 AM »

I don't know whether or not you are missing my main point on this tangent we've taking this thread into.  I'll assume not and run with it, since it does bear on my main point.  Yes, treating corporations as legal persons with a wide array of abilities and rights (those which can be wielded by assembled groups, rather than those solely possessed by individuals) can lead to some apparently bizarre outcomes.  But the potential absurd outcomes with regard to health benefits arise solely because our system of providing individuals with health insurance is already absurd due to its encouragement of inserting yet another party into the health care relationship by not only encouraging people to get their health insurance via their employer via the tax code, but also by essentially requiring employers to provide health insurance.  If employers weren't forced to be a part of the health care system, then whatever beliefs they might have concerning health care wouldn't matter because they would never be in a position to act upon them in a manner that affects the personal health care decisions of their employees.
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bullmoose88
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« Reply #66 on: March 31, 2014, 08:49:55 AM »

I don't know whether or not you are missing my main point on this tangent we've taking this thread into.  I'll assume not and run with it, since it does bear on my main point.  Yes, treating corporations as legal persons with a wide array of abilities and rights (those which can be wielded by assembled groups, rather than those solely possessed by individuals) can lead to some apparently bizarre outcomes.  But the potential absurd outcomes with regard to health benefits arise solely because our system of providing individuals with health insurance is already absurd due to its encouragement of inserting yet another party into the health care relationship by not only encouraging people to get their health insurance via their employer via the tax code, but also by essentially requiring employers to provide health insurance.  If employers weren't forced to be a part of the health care system, then whatever beliefs they might have concerning health care wouldn't matter because they would never be in a position to act upon them in a manner that affects the personal health care decisions of their employees.

I didn't miss your main point. For better or most likely worse we've constructed our healthcare system as a by-product of employment. I concede this point to/agree with you on the factual foundation and ultimate value (?) judgment.

I'm looking for a legal or legal like mind to debate/help me explore the corporate side of this. That's all.

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True Federalist (진정한 연방 주의자)
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« Reply #67 on: March 31, 2014, 09:02:35 AM »

Well then, it basically boils down to whether or not for-profit corporations should be able to act on any motivation other than purely financial ones.  I would say yes.  As I pointed out a couple posts ago, those financial motivations can be based upon the impact on potential customers of taking particular non-financial stances, so there is no bright dividing line that for-profit corporations could be barred from crossing, even if it would be desirable to so bar them.  But beyond that, I don't accept the need for an Aristotelian dichotomy between for-profit corporations that act solely for financial purposes and not-for-profit corporations that act solely for non-financial purposes.  There needs to be the ability for corporations to act for any purpose unless limited by their charter to specific ones.
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Randy Bobandy
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« Reply #68 on: March 31, 2014, 09:39:14 AM »

Everyone who's been on the bench for ten years or more should be dismissed.
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bullmoose88
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« Reply #69 on: March 31, 2014, 12:20:06 PM »

Respectfully I don't think the dichotomy centers on profit vs non profit. Rather I think the issue is whether a corporation have religious beliefs imputed upon it by its shareholders. In my opinion a corporate person can't have religious beliefs going back to the deliberately absurd questions earlier.  The harm, if any, is to the shareholders, right?  It offends their conscience/beliefs to have to provide these services.  Well I think the shield of separate personhood regarding liability sort of also means that the corporation doesn't share the stockholder's religion.

It's one thing to have corporate policy within the confines of the law to be congruent with those who vote in the board. It's another in my view to say ordinarily this corporation is a different entity with respect to us, but here the law requires certain benefits that offend us. And if it offends our beliefs it offends the corporation's beliefs. That's the problem I have with this particular challenge. A have their cake and eat it too type deal.
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bullmoose88
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« Reply #70 on: March 31, 2014, 01:05:05 PM »

I obviously misread your first sentence, mea culpa.  That said the motivations issue. As I mentioned a corporation can have a pro-environment or pro-community policy...etc assuming said policies (and I can't imagine why they couldn't/wouldn't) conform with the law.

Here the shareholders interests and the law conflict. But it's not the shareholders who are obliged to do anything. It's the corporation. Unless for this purpose only we're treating them as the same entity. And I think we shouldn't.
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True Federalist (진정한 연방 주의자)
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« Reply #71 on: March 31, 2014, 03:36:56 PM »

What does limited fiscal liability have to do with whether or not a corporation can act upon non-fiscal impulses?  The two seem to me to be issues that are completely orthogonal.  Frankly the idea that something is legal if done by an individual yet is illegal if done by an organized group is something that we should strenuously avoid as it can and inevitably will serve as an impediment to free association.
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bullmoose88
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« Reply #72 on: March 31, 2014, 04:42:15 PM »

What does limited fiscal liability have to do with whether or not a corporation can act upon non-fiscal impulses?  The two seem to me to be issues that are completely orthogonal.  Frankly the idea that something is legal if done by an individual yet is illegal if done by an organized group is something that we should strenuously avoid as it can and inevitably will serve as an impediment to free association.

People can associate in all sorts of forms. Some of which offer advantages vis a vis the others right?

Is hobby lobby a sole proprietorship? A partnership? Why do businesses or groups of people, as you say, incorporate? Could it be for relief from financial liability incurred by the separate "new" entity?

And again as much as it sounds absurd the distinction between corporate personhood and real personhood is actually important here no?  A corporation can't really be charged with a crime, go to jail, be executed right?  You or I have a right to a jury trial in at least criminal cases. The right to remain silent, right to an attorney, or protections against double jeopardy.   The rights real people have compared to corporate persons are not the same.

Again are we going to baptize PepsiCo now?  Give communion to Coca-Cola.

One of the big reasons groups of people choose to incorporate, as you know, is to receive limited liability. You've pointed this out. There are other business or associative entities that could have been chosen some that still attach liability to one and his assets.  You create the separate person for the liability shield. Why else really?

A corporation person can't find Jesus. The shareholders can.  The idea of corporate religious freedom is bonkers in my most humble opinion.

So when shareholders are trying to exercise their freedom of religion and say the law runs afoul of that right (not to mention the "right" of workers to healthcare or to control their reproductive futures) it's the shareholders who are injured. Not the corporation which can't go to church, pray, etc. Unless we're saying the corporation is a closely facade for its shareholders and isn't its own separate entity.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #73 on: March 31, 2014, 05:51:27 PM »

A corporation can't really be charged with a crime, go to jail, be executed right?  You or I have a right to a jury trial in at least criminal cases. The right to remain silent, right to an attorney, or protections against double jeopardy.   The rights real people have compared to corporate persons are not the same.

Actually, corporations can be executed, in the sense of having all their assets seized for criminal violations committed by the corporation, tho they rarely are.  I certainly would not be adverse to seeing corporate death penalties applied more often, or even having certain crimes cause a rupture of the limited liability aspect of corporate laws, if it could be shown that the shareholders knew or should have known that their corporation was violating the law.

A corporation person can't find Jesus. The shareholders can.  The idea of corporate religious freedom is bonkers in my most humble opinion.

So when shareholders are trying to exercise their freedom of religion and say the law runs afoul of that right (not to mention the "right" of workers to healthcare or to control their reproductive futures) it's the shareholders who are injured. Not the corporation which can't go to church, pray, etc. Unless we're saying the corporation is a closely facade for its shareholders and isn't its own separate entity.

So people who share a specific set of religious views cannot form a corporation that shares those views?  That the right to associate would be limited for religious views but not for financial views is what I would consider to be a crazy idea that exalts lucre above all else.  Freedom of religion to be complete requires that the religious be free to exercise their religion in groups and furthermore be free to do so in any type of group they choose to form.

The proper way to deny Hobby Lobby the ability to interfere in their employees' health care choices is not by mandating that they provide their employees with specific packages of health care coverage, but by not mandating that they provide health care to their employees.
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True Federalist (진정한 연방 주의자)
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« Reply #74 on: March 31, 2014, 05:54:08 PM »

Again are we going to baptize PepsiCo now?  Give communion to Coca-Cola.

As for your specific example, I wouldn't baptize the devil and Coca-Cola is already a holy liquid. Wink
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