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The Water Cooler
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Sunday Morning Smile: Followup to Janus (Public Sector Union Case)
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<blockquote data-quote="Dave70968" data-source="post: 3137013" data-attributes="member: 13624"><p>Due to the nature of how cases get to SCOTUS, it really only works one way. The courts can only hear "actual cases and controversies." That means when an issue (or appeal) gets to SCOTUS, somebody (typically .gov) has already taken action, probably more than once. If the appeal is denied, that's retroactive...so the government gets to <em>keep</em> doing <em>what it was already doing</em>. It's only where the the High Court's ruling <em>reverses</em> the lower court that "history is changed," with the retroactive ruling saying that ".gov done wrong" making a previously-okay action not-okay. You're just not going to find cases where .gov goes to court over something it's <em>not</em> doing and getting permission to do so, due to the "actual cases and controversies" requirement.</p><p></p><p>I'll grant that it's <em>possible</em> to encounter a circumstance where SCOTUS <em>overrules</em> a previous ruling (forgive the pedantry, but in this case, it's critical: the Court <em>reverses</em> lower courts; it can only <em>overrule</em> its own previous holdings). In such a case, the court would be saying "this thing .gov wasn't doing is actually okay." If that were in a criminal context, that would make previously-legal actions illegal, and the .gov's not-prosecuting people could turn into permission to prosecute. If, say, <em>Roe v. Wade</em> were overturned, states would be free to start prosecuting abortion docs for murder. <em>However</em>, there are a couple of wrinkles to that theory, one implicit and one explicit. The implicit one is the rule that the rules must reliably inform people as to what conduct is prohibited; if they don't, they're considered "void for vagueness." In the case of abortion, the state of the caselaw was such that the statutes didn't effectively forbid the abortion, so they can't be enforced. The second, explicit, wrinkle is the "ex post facto" clause, the idea that a statute can't make illegal what was legal at the time it was performed. In this example, the caselaw makes abortion legal, so a change to the law applied retroactively would criminalize conduct that was legal at the time it was performed. Between the two of those, a ruling making a previously-invalid criminal statute effective just couldn't be made retroactive.</p><p></p><p>(Note: I chose the abortion issue because it's one with which everybody is familiar, and one that's in the news <em>right now</em> as potentially being open to change in a way that would make old criminal statutes effective again, depending upon how the Court shifts. Let's not get into the politics of the issue; it's just an especially clean hypothetical.)</p><p></p><p>So, I really don't worry too much about the retroactive application of SCOTUS rulings. It's really a one-way ratchet, I think. But then, I've been wrong before....</p></blockquote><p></p>
[QUOTE="Dave70968, post: 3137013, member: 13624"] Due to the nature of how cases get to SCOTUS, it really only works one way. The courts can only hear "actual cases and controversies." That means when an issue (or appeal) gets to SCOTUS, somebody (typically .gov) has already taken action, probably more than once. If the appeal is denied, that's retroactive...so the government gets to [I]keep[/I] doing [I]what it was already doing[/I]. It's only where the the High Court's ruling [I]reverses[/I] the lower court that "history is changed," with the retroactive ruling saying that ".gov done wrong" making a previously-okay action not-okay. You're just not going to find cases where .gov goes to court over something it's [I]not[/I] doing and getting permission to do so, due to the "actual cases and controversies" requirement. I'll grant that it's [I]possible[/I] to encounter a circumstance where SCOTUS [I]overrules[/I] a previous ruling (forgive the pedantry, but in this case, it's critical: the Court [I]reverses[/I] lower courts; it can only [I]overrule[/I] its own previous holdings). In such a case, the court would be saying "this thing .gov wasn't doing is actually okay." If that were in a criminal context, that would make previously-legal actions illegal, and the .gov's not-prosecuting people could turn into permission to prosecute. If, say, [I]Roe v. Wade[/I] were overturned, states would be free to start prosecuting abortion docs for murder. [I]However[/I], there are a couple of wrinkles to that theory, one implicit and one explicit. The implicit one is the rule that the rules must reliably inform people as to what conduct is prohibited; if they don't, they're considered "void for vagueness." In the case of abortion, the state of the caselaw was such that the statutes didn't effectively forbid the abortion, so they can't be enforced. The second, explicit, wrinkle is the "ex post facto" clause, the idea that a statute can't make illegal what was legal at the time it was performed. In this example, the caselaw makes abortion legal, so a change to the law applied retroactively would criminalize conduct that was legal at the time it was performed. Between the two of those, a ruling making a previously-invalid criminal statute effective just couldn't be made retroactive. (Note: I chose the abortion issue because it's one with which everybody is familiar, and one that's in the news [I]right now[/I] as potentially being open to change in a way that would make old criminal statutes effective again, depending upon how the Court shifts. Let's not get into the politics of the issue; it's just an especially clean hypothetical.) So, I really don't worry too much about the retroactive application of SCOTUS rulings. It's really a one-way ratchet, I think. But then, I've been wrong before.... [/QUOTE]
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