A Deeply Fractured US

[Remius]

Unacceptable is just not a good word for it.

You can strongly disagree with them without claiming their views are unacceptable and implying they should be censored or worst.

Criminalizing things like sodomy, homosexuality and contraception etc is unacceptable. Even worse when the basis for that view is rooted in religious dogma.

Anti Abortion views i will concede is not necessarily always linked to religious views on it but religious views on it are fairly unanimous on the subject are very rooted in the debate.

 

[Bruce Monkhouse]

Republican Judges

​

And/or Democrat judges.

Those words right there sum up the problem down there......

 

[Brad Sallows]

Americans looking for abortions are not going to come to Canada in any meaningful numbers; abortion is not going to be inaccessible there. Why cross an international border when a state line will do?

Most US states already have, or have talked about, legislation which approximately looks like many European countries. A few have announced they will essentially leave the gates wide open. Not many have talked about banning everything.

Thomas wants to go after "substantive due process"; he's not the only critic. A consequence of knocking that down means some other decisions would be weaker. But that doesn't mean there are no foundations on which those decisions could be upheld. A point several critics have made is that there are other, stronger reasons to uphold other decisions. They could end up being stronger. The stronger the decisions, the less likely to be overturned in future. I suppose RvW could have benefited from that kind of thinking instead of a pure defensive crouch.

 

[Infanteer]

And/or Democrat judges.

Those words right there sum up the problem down there......

That's a good point - you notice how we never talk about "Liberal" or "Conservative" supreme court justices here in Canada? In fact, we barely talk about the Supreme Court at all, which is rather nice.

 

[Brad Sallows]

The worst that will happen to some members of Congress is that they might be turned off of some committees.

 

[Infanteer]

Mr Amar is a leading scholar of the Constitution. His view on this is illuminating as to the jurisprudence.

https://akhilamar.com/wp-content/uploads/2022/05/The-End-of-Roe-v.-Wade-WSJ-1.pdf

 

[Oldgateboatdriver]

In fact, we barely talk about the Supreme Court at all, which is rather nice.

Except when they reject the will of the people as expressed by Parliament on the basis of very fuzzy concepts like "bringning the administration of justice into disrepute" or "cruel and unusual punishment" for which they somehow set themselves up as sole judge in place of the people or without even asking people if they feel that the administration of justice is brought into disrepute by such laws or if the punishement (of merely more time in jail) is cruel and unusual.

I am of course talking here about the fact that, as demonstrated by polls after polls, most Canadian felt, like their Parliament, that somehow, someone who muders seven or more persons wilfully and in a premeditated way, deserves to receive longer jail terms than someone who commits a single premeditated murder.

 

[YZT580]

That's a good point - you notice how we never talk about "Liberal" or "Conservative" supreme court justices here in Canada? In fact, we barely talk about the Supreme Court at all, which is rather nice.

That is because almost all of our judges are de facto left wing. There are no constitutionalists or at least very few in the high courts. Our rule of law is subject to personal interpretation and that is not healthy.

 

[TacticalTea]

That is because almost all of our judges are de facto left wing. There are no constitutionalists or at least very few in the high courts. Our rule of law is subject to personal interpretation and that is not healthy.

Quite right. That was changing a bit in the later Harper years, but Trudeau has had the opportunity to name multiple new leftwing judges.

Criminalizing things like sodomy, homosexuality and contraception etc is unacceptable. Even worse when the basis for that view is rooted in religious dogma.

Anti Abortion views i will concede is not necessarily always linked to religious views on it but religious views on it are fairly unanimous on the subject are very rooted in the debate.

Who talked about criminalizing anything? Nobody mentioned that in this thread and, having just visited their website, I didn't read anything suggesting that.

Also, I'm not a religious person but dismissing a religious person's views as ''irrelevant religious dogma'' is rather misguided. Religion isn't just a set of fairytales that people tell eachother for fun. Religious moral is grounded in reality and is meant to get an individual / community to act in their best interest, especially when it wouldn't be immediately obvious what the right course of action is.

 

[lenaitch]

The government could pass legislation affirming access to abortion if it wanted to.

I'd be interested in how that would work. Criminal law, which is the sole purview of the federal government, creates criminal law by setting the rules around what citizen cannot do. Governments tend to not create law around what its citizens can do. It does create regulatory law which sets out the rules in certain areas of permitted activity under federal authority (i.e. vessel navigation under the Canada Shipping Act). So do provinces. There might be a place in the Canada Health Act for such a statement, but my understanding it is largely a financial piece of legislation.

Except when they reject the will of the people as expressed by Parliament on the basis of very fuzzy concepts like "bringning the administration of justice into disrepute" or "cruel and unusual punishment" for which they somehow set themselves up as sole judge in place of the people or without even asking people if they feel that the administration of justice is brought into disrepute by such laws or if the punishement (of merely more time in jail) is cruel and unusual.

I am of course talking here about the fact that, as demonstrated by polls after polls, most Canadian felt, like their Parliament, that somehow, someone who muders seven or more persons wilfully and in a premeditated way, deserves to receive longer jail terms than someone who commits a single premeditated murder.

So are you arguing for the absolute supremacy of Parliament? That any piece of legislation is beyond review? Then what is the point of the Charter (or any constitutional or foundation legislation in a democracy)? It can be argued that the 'will of the people' is determined every election cycle.

 

[Remius]

Quite right. That was changing a bit in the later Harper years, but Trudeau has had the opportunity to name multiple new leftwing judges.

Who talked about criminalizing anything? Nobody mentioned that in this thread and, having just visited their website, I didn't read anything suggesting that.

Also, I'm not a religious person but dismissing a religious person's views as ''irrelevant religious dogma'' is rather misguided. Religion isn't just a set of fairytales that people tell eachother for fun. Religious moral is grounded in reality and is meant to get an individual / community to act in their best interest, especially when it wouldn't be immediately obvious what the right course of action is.

They are criminalizing abortion in several states. Homosexuality and sodomy were criminal offences decades ago not centuries ago. So yes, when Thomas mentions revisiting these decisions on those things it could lead to states taking another look backwards,

I’m not dismissing a person’s religious views. They should be personal. Religious morality is decided by the religion in question and when it crosses the line into government policy or decision making it becomes unacceptable.

Religious tenants that speak of morality is not all bad but some of it is.

We are in the age of reason now or should be. People should catch up.

 

[The Bread Guy]

All the other Justices do not want to go there:

Supreme Court should rethink precedents on contraception access and LGBTQ+ rights, says Justice Thomas

As the court ruled against abortion rights, Justice Clarence Thomas argued precedents on contraceptives and same-sex relationships could come next.

www.cbsnews.com

I thought this was about saving early term babies? If that's the case, pro-controlled-abortion access folks should be all FOR widespread, free for the taking contraception to all takers as a start - if there's no conception, it becomes a non-issue.

A lack of consistency on these points could lead to conspiracy theories on the pro-full-open-access-abortion side that it's about controlling women's bodies, no?

 

[TacticalTea]

They are criminalizing abortion in several states. Homosexuality and sodomy were criminal offences decades ago not centuries ago. So yes, when Thomas mentions revisiting these decisions on those things it could lead to states taking another look backwards,

That's cool.

But entirely external to the discussion that was being had here.

BA mentioned Campaign Life Coalition, claiming they have backwards views on some social issues, KS joked about so-called "unacceptable" views and BA double down stating that is indeed how he views those.

My point is that it is erroneous to qualify as "unacceptable", views that do not constitute hate speech or some other such offense.

 

[Brad Sallows]

I'd be interested in how that would work.

Make it unlawful to abort after crowning.

 

[Fishbone Jones]

That's a good point - you notice how we never talk about "Liberal" or "Conservative" supreme court justices here in Canada? In fact, we barely talk about the Supreme Court at all, which is rather nice.

You're right. Normally, we speak of who appointed them. SCJ Smith, appointed by Chretien and SCJ Jones, appointed by Harper. We sometimes even go as far as to say who appointed, or at least the year they appointed them Queens Council. So, while we don't identify them by party, it's probably pretty obvious by who appointed them.

FJAG could probably tell us approx how many Cons were appointed by grits and visa versa. I don't think it's commonplace, but I'm guessing.

 

[Remius]

That's cool.

But entirely external to the discussion that was being had here.

BA mentioned Campaign Life Coalition, claiming they have backwards views on some social issues, KS joked about so-called "unacceptable" views and BA double down stating that is indeed how he views those.

My point is that it is erroneous to qualify as "unacceptable", views that do not constitute hate speech or some other such offense.

Not at all. People can find whatever they want unacceptable. You are trying to narrow the definition of what unacceptable means and then defining what unacceptable should mean to BA. There are plenty of non hate speech related things that I would find unacceptable. Situation, topic and opinions considered.

BA litterally said “Yes, it is my opinion that their view is unacceptable to me”

You proceeded to tell him that he couldn’t use that word.

 

[FJAG]

FJAG could probably tell us approx how many Cons were appointed by grits and visa versa. I don't think it's commonplace, but I'm guessing.

No idea really. In the olden days judicial appointments very much followed party lines as a way of rewarding the faithful. That has changed a bit in that most judicial appointments now go through a vetting committee process that weeds out the less competent and tends to present a more balanced short list. It would be naïve to think that in the final appointment process from the short list that people who were "known" to the Minister wouldn't have a bit of an edge.

I think Canada has a bit more of a moderate left lean of centre in its judiciary because we tend to have a bit more of a left leaning legal profession. It starts with law professors who tend to lean left, many more women in the legal profession who tend to lean left and generally a younger legal profession that tends to lean left. There's a little article here that discusses some of that in both the American and Canadian context.

When reading this take a small caution. There is a major difference between provincial legal governing law societies and the Canadian Bar Association. Law society benchers are elected by their peers to manage the profession - they look for more stable, slightly more conservative folks (like me ) whereas the CBA is a voluntary association designed for political activism which attracts a more radical group bent on joining to try to give voice for change in whatever area concerns them. (I spent a lot of time in the CBA as well but mostly for networking and the free dinners )

I'm generalizing here, but lawyers who are more conservative in their outlook tend to gravitate more towards the solicitor side of the practice where corporate transactions and so on take place. They're the old partner/rain makers in their firms. The area of criminal law (including prosecutors), family law and, to an extent civil litigation, tends to attract the more socially aware, socially involved types who like tussling in court and who, of course, are, as a result of their court skills, the bigger pool to draw the judiciary from.

 

[Kat Stevens]

Yes, it is my opinion that their view is unacceptable to me. I usually have no problem with people who believe abortion, homosexuality, transgenderism and non-traditional marriage is wrong. I have a simple way of dealing with them; I ignore them. However, when "their view" is that they intend to make all those things illegal and thus impose their opinion on me, then I feel I have every right to make my distain of their view (and the specific individuals personally) known.

I'm not surprised the reference sailed over everyone's heads, but I thought the little joe cool emoji may have tipped it off. Never mind, rave on, everyone.

 

[brihard]

That is because almost all of our judges are de facto left wing. There are no constitutionalists or at least very few in the high courts. Our rule of law is subject to personal interpretation and that is not healthy.

Ok, as a very minor sort of student of law, I’ll bite. What are you using as a definition of “constitutionalist” in the Canadian context, and where do you contend our judiciary is falling short? Are there particular written decisions you can point to parts of that you take issue with?

Canadian court decisions of a ‘constitutional’ nature tend to generally land in one of two categories. One is, “is a challenged law compliant with the Canadian Charter of Rights and Freedoms?”. The other is “Does a certain piece of legislation comply with the division of powers between the federal and provincial legislature laid out in ss. 91 and 92 of the Constitution Act?

I’m struggling to see a pronounced ‘individual’ bent to our higher level courts of appeal decisions that suggests our courts to not carefully weigh constitutional considerations and abide by them.

As a general rule of thumb, laws in Canada that explicitly permit things tend to be ruled on very liberally- good example would be the court cases that opened up medical assistance in dying and subsequently interpreted the amendments to federal legislation on the same subject. Conversely, laws that prohibit things tend to get interpreted fairly narrowly, technically, and cautiously. But that’s not something easily pigeonholed as political partisanship.

I think we’re very lucky to have a much less political and politicized judiciary than the states. Happily, most Canadians struggle to name any of our Supreme Court justices, never mind their political views or any political bent to their written decisions.

I’m curious if there’s something I’m misunderstanding in what you said…

 

[Colin Parkinson]

Mr Amar is a leading scholar of the Constitution. His view on this is illuminating as to the jurisprudence.

https://akhilamar.com/wp-content/uploads/2022/05/The-End-of-Roe-v.-Wade-WSJ-1.pdf

Excellent read, thank you

Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh’s nomination to the Court, remains true: “Americans generally and with good reason view today’s Court more favorably than today’s Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today’s President and Congress say the same?” In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.