SCOTUS getting a makeover?

[Jaskalas]

The ability to overturn SCOTUS rulings, though there would have to be a high bar to do it.

As to an earlier comment about overturning Supreme Court rulings, only the Supreme Court itself can do that.

Pretty sure the other two branches of government have plenty of options to challenge the Court. The Executive can try their hand at simply ignoring it, and the Legislature can, except when the Court invokes the Constitution, write new law. Even then an Amendment can be created. Prevailing in those challenges is another matter. It really comes down to public support and whether both other branches are united in a cause.

 

[weblooker2021]

Unless Democrats pick up seats in the Senate come 2022 election, it will never happen.

 

[pmv]

Pretty sure the other two branches of government have plenty of options to challenge the Court. The Executive can try their hand at simply ignoring it, and the Legislature can, except when the Court invokes the Constitution, write new law. Even then an Amendment can be created. Prevailing in those challenges is another matter. It really comes down to public support and whether both other branches are united in a cause.

So what's the story behind the Supreme Court gaining the immense power it has in the first place? I don't know that much about it, beyond what I've heard in passing in political discussions, but didn't the court simply appropriate the power to itself in the first place? Marbury vs Madison, right? (full disclosure: I only just looked that up, based on what I half-remember).

I'm not really arguing the politics, so much as wondering aloud about the philosophy of it all. I mean, where does the court's power come from? You can say it's in the Constitution, but surely that's completely circular because it's the court that interprets the Constitution in the first place, so how do you get that system off the ground? Does it not ultimately just come down to 'what enough people will go along with'? Or maybe 'what enough people with guns and stuff will go along with'? Which is, ultimately, what it always comes down to, regardless of written Constitutions and formal systems.

 

[Lost_in_the_HTTP]

^^

Power corrupts.

Absolute Power corrupts absolutely.

That's why I like the Nuclear Option I posted. Get rid of the Nine Gods altogether and implement a rotating bench. You get rid of the personalities and political influences because no one would know ahead of any session which 13 Circuit Judges would be hearing cases.

 

[HomerJS]

Pretty sure the other two branches of government have plenty of options to challenge the Court. The Executive can try their hand at simply ignoring it, and the Legislature can, except when the Court invokes the Constitution, write new law. Even then an Amendment can be created. Prevailing in those challenges is another matter. It really comes down to public support and whether both other branches are united in a cause.

What is the basis for the challenge since adding members is completely constitutional?

 

[brycejones]

Here we have dislike of appointed judges.

And here we have dislike of elected judges.

I'm pleased to see that some dissent can still exist within acceptable boundaries.
My own opinion is that appointed judges are more free from capricious and ideological influences. As to an earlier comment about overturning Supreme Court rulings, only the Supreme Court itself can do that. I wonder what secular authority one might place above the Supremes to interpret law in the US?

The process to amend the constitution.

 

[woolfe9998]

dear god fuck no. No judge anywhere should ever be elected. Ever.

that is the dumbest fucking "thought" anyone can have. Talk about corrupting justice.

But but, the GOP can set up the whole system. People living in rural areas get 2 votes. If you live in a trailer park, it's 3 votes. And every time you eat at a Cracker Barrel you get a coupon for another free SCOTUS vote.

Pretty much the way everything else is rigged already.

 

[woolfe9998]

So what's the story behind the Supreme Court gaining the immense power it has in the first place? I don't know that much about it, beyond what I've heard in passing in political discussions, but didn't the court simply appropriate the power to itself in the first place? Marbury vs Madison, right? (full disclosure: I only just looked that up, based on what I half-remember).

I'm not really arguing the politics, so much as wondering aloud about the philosophy of it all. I mean, where does the court's power come from? You can say it's in the Constitution, but surely that's completely circular because it's the court that interprets the Constitution in the first place, so how do you get that system off the ground? Does it not ultimately just come down to 'what enough people will go along with'? Or maybe 'what enough people with guns and stuff will go along with'? Which is, ultimately, what it always comes down to, regardless of written Constitutions and formal systems.

Yes, the doctrine of "judicial review" - the power to overturn legislation as unconstitutional - originated in Marbury v. Madison (1803). But think about it. If there is no judicial review, then Congress can simply pass unconstitutional legislation and there is nothing anyone can do about it, so the Constitution isn't worth the parchment it was written on.

Take, for example, one of the first laws passed by Congress, prior to Marbury, called the Alien and Sedition Act. The law made it a crime to criticize the President or members of Congress. Over 100 people were jailed as political prisoners under that law.

If the SCOTUS cannot rule that a law violates the Constitution, then who would you propose to fill that role?

 

[pmv]

Yes, the doctrine of "judicial review" - the power to overturn legislation as unconstitutional - originated in Marbury v. Madison (1803). But think about it. If there is no judicial review, then Congress can simply pass unconstitutional legislation and there is nothing anyone can do about it, so the Constitution isn't worth the parchment it was written on.

Yeah, that's a fair point.

I suppose it just comes back again to my being unconvinced about the value of a written constitution in the first place. What's the real benefit of it? It seems to end up with the position that a group of unelected appointees (mostly selected from a very limited demographic, and as with everyone, they tend to favour the interests of the demographic they are from) get more power than elected politicians. Do the benefits of that really outweigh the costs?

 

[woolfe9998]

Yeah, that's a fair point.

I suppose it just comes back again to my being unconvinced about the value of a written constitution in the first place. What's the real benefit of it? It seems to end up with the position that a group of unelected appointees (mostly selected from a very limited demographic, and as with everyone, they tend to favour the interests of the demographic they are from) get more power than elected politicians. Do the benefits of that really outweigh the costs?

What guarantees free speech rights in the UK?

An Act of Parliament, apparently, which is subject to numerous vague, unspecified limitations. And which, unlike the American 1A, can be overturned by simple majority vote.

Doesn't sound like a terribly secure right to me.

 

[pmv]

What guarantees free speech rights in the UK?

An Act of Parliament, apparently, which is subject to numerous vague, unspecified limitations. And which, unlike the American 1A, can be overturned by simple majority vote.

Doesn't sound like a terribly secure right to me.

But all those rights in the US are only guaranteed subject to the make-up of that Supreme Court. They get to decide what that Constitution means. There are vast numbers of ways 'fee speech' is restricted in the US, even more so in the past.

Either way, with-or-without a written constitution, the ultimate 'guarentee' is just 'what the populace will tolerate'.

 

[woolfe9998]

But all those rights in the US are only guaranteed subject to the make-up of that Supreme Court. They get to decide what that Constitution means. There are vast numbers of ways 'fee speech' is restricted in the US, even more so in the past.

Either way, with-or-without a written constitution, the ultimate 'guarentee' is just 'what the populace will tolerate'.

Free speech is subject to a few exceptions: child porn, civil liability (not criminal) for defamation, under a heightened Constitutional standard requiring malice (not required in the UK), a very limited exception for incitement speech, false advertisement (again narrowly defined and rarely applied) and, used to be obscenities, but now all porn not involving children is de facto legal. There is nothing new of which I'm aware.

Yes, scope of the 1A is subject to the interpretation of SCOTUS, particularly around the margins and in the gray areas. Yet we haven't had anything remotely resembling the Alien and Sedition Act since 1803.

By contrast, in the UK, they could pass the Alien and Sedition Act tomorrow and it would be perfectly legal. Oh wait, it's already illegal to imagine a world in which your monarch is not your monarch. Literally, there is an active law on your books which makes it a crime to say, "wouldn't it be great if the UK had no monarch?"

Treason Felony Act 1848 - Wikipedia

en.wikipedia.org

Edit: my apologies, the UK did finally repeal that in 2013. Phew. Let's hope they don't decide to reinstate it by majority rule tomorrow.

We can compare and contrast the two systems in various theoretical ways, but the result of the difference is that free speech is narrower in the UK and on the continent than it is in the US. The list of exceptions is too long to bother with an extensive discussion.

Censorship in the United Kingdom - Wikipedia

en.wikipedia.org

 

[Lost_in_the_HTTP]

The system of Checks and Balances cannot exclude the Supreme Court. They must not automatically have the final say. There must be a way to overturn bad rulings, like Hobby Lobby, Citizens United, and quite a few others including several recent ones about church gathering limits that go against established law, such as separation of Church and State. Another recent one was in Alabama about the disabled being able to vote from their cars in the parking lot of polling places that directly violated the ADA.

And we don't have an effective way to remove Justices that openly display bias or bad judgment. Thomas and (was it Alito?) both recently showed how unfit they are to continue serving.


Again, I go back to the notion of revolving Justices that would effectively eliminate the partisanship and personalities.

 

[Greenman]

Three main things need to happen:

Term limits.

The ability to overturn SCOTUS rulings, though there would have to be a high bar to do it.

A defined process for consideration and confirmation, not subject to partisan hankerings.

--------

Across the Judiciary, we need the ability to remove Judges who are unfit or consistently make bad rulings.

Seems like we would need a supreme supreme court to overturn the supreme court.
Everyone want's to rebuild the court when they don't rule the way we want, but changing the rules so you always win isn't democracy.
I could certainly endorse a term limit, but it would have to be at least ten years. I could also get behind an age limit, as people simply aren't as sharp as they approach EOL.

 

[woolfe9998]

The system of Checks and Balances cannot exclude the Supreme Court. They must not automatically have the final say. There must be a way to overturn bad rulings, like Hobby Lobby, Citizens United, and quite a few others including several recent ones about church gathering limits that go against established law, such as separation of Church and State. Another recent one was in Alabama about the disabled being able to vote from their cars in the parking lot of polling places that directly violated the ADA.

And we don't have an effective way to remove Justices that openly display bias or bad judgment. Thomas and (was it Alito?) both recently showed how unfit they are to continue serving.


Again, I go back to the notion of revolving Justices that would effectively eliminate the partisanship and personalities.

This is dumb. It has to end somewhere, doesn't it? Meaning someone, somewhere must have the final say. Then the exact same criticism would apply.

The SCOTUS doesn't have unlimited power anyway. They cannot make the laws as Congress does. They cannot implement and enforce the laws as the executive does. They simply have the final say on whether a law violates the Constitution because after all, someone has to.

 

[HomerJS]

This is dumb. It has to end somewhere, doesn't it? Meaning someone, somewhere must have the final say. Then the exact same criticism would apply.

The SCOTUS doesn't have unlimited power anyway. They cannot make the laws as Congress does. They cannot implement and enforce the laws as the executive does. They simply have the final say on whether a law violates the Constitution because after all, someone has to.

What's troubling people keep bring cases back to the SC that are settled law such as a woman's right to an abortion. Based on the way they had the 65 Voting Rights Act carved up it's a real possibility RvW will be overturned or allowing states to effectively make abortion illegal.

 

[woolfe9998]

What's troubling people keep bring cases back to the SC that are settled law such as a woman's right to an abortion. Based on the way they had the 65 Voting Rights Act carved up it's a real possibility RvW will be overturned or allowing states to effectively make abortion illegal.

Yes, that may eventually happen, possibly soon. It has been tried before with justices appointed by republicans in the majority, and failed. I'm not entirely certain about these three appointed by Trump. I think Alito and Thomas remain the most conservative judges on the court. I seriously doubt Roberts will vote to overturn Roe, meaning only one of the Trump appointed has to cross party lines on it and it will fail again.

 

[rommelrommel]

The system of Checks and Balances cannot exclude the Supreme Court. They must not automatically have the final say. There must be a way to overturn bad rulings, like Hobby Lobby, Citizens United, and quite a few others including several recent ones about church gathering limits that go against established law, such as separation of Church and State. Another recent one was in Alabama about the disabled being able to vote from their cars in the parking lot of polling places that directly violated the ADA.

And we don't have an effective way to remove Justices that openly display bias or bad judgment. Thomas and (was it Alito?) both recently showed how unfit they are to continue serving.


Again, I go back to the notion of revolving Justices that would effectively eliminate the partisanship and personalities.

They don’t really have the final say. The Constitution can be amended. The composition of the Court can be changed. The government can relegislate. Don’t mistake the current state of legislative constipation as an inability to change.

 

[HomerJS]

The SCOTUS doesn't have unlimited power anyway. They cannot make the laws as Congress does. They cannot implement and enforce the laws as the executive does. They simply have the final say on whether a law violates the Constitution because after all, someone has to.

If that's the case how did the 65 Voting Rights manage to hold up until it didn't in 2013?

 

[zinfamous]

Here we have dislike of appointed judges.

And here we have dislike of elected judges.

I'm pleased to see that some dissent can still exist within acceptable boundaries.
My own opinion is that appointed judges are more free from capricious and ideological influences. As to an earlier comment about overturning Supreme Court rulings, only the Supreme Court itself can do that. I wonder what secular authority one might place above the Supremes to interpret law in the US?

right. the perceived problem with both situations is the same: "corruption; trapped in ideology," but is actually only applied to elected judges. It has nothing to do with appointed judges.

Those that want elected judges, for some reason, don't do the math where you eventually realize that lifetime appointment + (anything) = minimal outside influence/corruption. Once you are appointed to that seat, you are no longer beholden to anything but your own personal whim, really, or you know, the ideals and ethics of the position that you are sworn to serve.

Elected judges are slaves of voters (with the memories of squirrels--kill more petty criminals from your judge's bench, then bloodthirsty hillbillies will keep electing you. Justice has nothing to do with anything), and of course the monied interests that annually fund their campaigns to keep the hillbillies in line, pushing the narrative of the violent others in society that need the heavy hammer of judge MurderBench to serve in perpetuity, to keep the pants-pissing hillbillies safe. It's the most corrupt model of justice that you can have anywhere, made possible by our elective process and the legalized structure that funds it.

Any county that seats elected justices is corrupt, and can not possibly dispense any theoretical form of justice (I think that's....all of the counties in the US?)

 

[Lost_in_the_HTTP]

right. the perceived problem with both situations is the same: "corruption; trapped in ideology," but is actually only applied to elected judges. It has nothing to do with appointed judges.

Those that want elected judges, for some reason, don't do the math where you eventually realize that lifetime appointment + (anything) = minimal outside influence/corruption. Once you are appointed to that seat, you are no longer beholden to anything but your own personal whim, really, or you know, the ideals and ethics of the position that you are sworn to serve.

= lack of accountability. Once appointed, you feel invincible and that you can rule more or less however you wish since it's nearly impossible to be removed from office.

 

[dainthomas]

When McConnell decided to reduce the number on the supreme court to 8 for something like 8-9 months, I don't recall righties having a problem with that.

 

[Shamrock]

Hell no this is a shit show at the state level/

You're saying its not corrupt already?

 

[HomerJS]

Seems like we would need a supreme supreme court to overturn the supreme court.
Everyone want's to rebuild the court when they don't rule the way we want, but changing the rules so you always win isn't democracy.
I could certainly endorse a term limit, but it would have to be at least ten years. I could also get behind an age limit, as people simply aren't as sharp as they approach EOL.

The court should be rebuilt when members positions are stolen and no longer represent the country as a whole.

 

[Greenman]

You mean when they don't rule the way you want.
Lets be honest here. You want the court to be much more liberal, and want to make sure it stays liberal. All I want the court to do is rule on the constitutionality of law, and point out how law X does or does not fit within the constitution. I don't want the court to "represent the country as a whole". The court represents the constitution, nothing else.
If were going to start remodeling the court to take control of it, we might as well just toss the entire idea of having a supreme court and install an arbiter who's appointed by the sitting president.