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View Diary: SCOTUS Is A Political Institution (97 comments)

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  •  My understanding is that there is nothing in the (13+ / 0-)

    Constitution that limits or denotes the number of Supreme Court Justices. My understanding is that the number has changed throughout the last centuries and that the number is fixed by congress, not the Constitution.

    Pope Francis: the Thumb of Christ in the eyes of the Pharisees.

    by commonmass on Sat Apr 12, 2014 at 02:28:20 PM PDT

    •  That is correct! (10+ / 0-)

      There is also nothing in it that gave them to power to interpret it. However, in the history of the debate over ratification there seems to have been a fairly broadly accepted view that they would do that in accordance with British common law traditions.

      •  not true. read Boudin, Government by Judiciary (1+ / 0-)
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        They did not authorize the Court to strike down law. The president already had the veto, no way they give the unelected branch supremacy, a veto over law.Jefferson commented after Marbury. But it was much later the implied power became less deferential in Dred Scott. Marshall was a departmentalist. We have a real problem when a Court scraps the political question doctrine. Lincoln said judicial supremacy is an oligarchy. The check and balance would be the exceptions clause whereby Congress has some control over appellate jurisdiction.ex parte McCardle. Since the judicial veto is not in the Constitution, came after and impliedly, the exceptions clause should be more actively implemented to address crises. FDR won his battle with Court. Read Bruce Ackerman, We the people, 3 volumes on just what do we mean by the word Constitution. Our system from the British parliamentary revolutions, con law by definition is political. Common law is more stable. The GOP learned this from FDR and LBJ, so they wrap their judicial veto in revolutionary terms, plutocratic freedoms. Not one self respecting con law expert buys this.

        •  this is where originalism comes from, denial of (0+ / 0-)

          legislative revolution, the pretended absence of politics (democracy) lets Court demolish whatever it can on the imagined analogy of 1789 baseline. The GOP does not do revolutions like the New Deal and civil rights, not even the American Revolution, which they apparantly now take the British side on, regarding governance by aristocracy. However whatever they do is so branded, counter-revolution phrased as tea party and Reagan Revolution, as originalist.  Shelby County rolled back the 15th amendment, Roberts and Thomas announced similar repeal of Article 1 in McCuthcheon. Judicial supremacy secedes from government- floats above it all from a 1789 time capsule in the clouds.

        •  Marbury vs. Madison (2+ / 0-)
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          Musial, blackhand

          In this case, the Court took for themselves the authority to review and strike down laws passed by Congress. They have no right to do this and the Constitution gives them no power to do this either. Congress should then take this power away from them. They gave "personhood" to corporations by citing the head note of Santa Clara County vs. Southern Pacific RR decision. Where did they get this right?
          They have the most power of any branch of our government and are the most removed from answering to the people. This is not right and Congress should start reigning in their power!

        •  Judicial review is not in the Constitution... (2+ / 0-)
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          Musial, cardboardurinal

          ...the same way separation of church and state is not in the constitution.  In both cases those words are not used, but you'd be hard pressed to interpret what is there any other way.  The Constitution is the supreme law to which all judges including the unappealable Supreme Court are bound by oath to uphold.  The Supreme Court has appellate jurisdiction over all cases arising under the Constitution.  If a case comes before the Court questioning a law's conformity to the Constitution the justices must set it aside as a matter of faithfulness to their oaths is they feel there is a contradiction between the statute and the Constitution.  To let such a law stand would be to nullify the supremacy clause.

          •  everyone has an oath, departmentalism (0+ / 0-)

            suggests that after Congress and President passed the law the Court unanimously must show something compelling when it crashes the system, and not in a case between private parties, Lincoln's 1857 response to Dred Scott.

            •  There's no more requirement... (2+ / 0-)
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              Musial, cardboardurinal

              ...for unanimity on the court than there is for Congress, though it certainly strengthens their hand.  When the court speaks it is playing its role in the system, not crashing it.

              •  Read Lincoln's 1857 speech responding to Dred (1+ / 0-)
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                Scott- outlines a test for when a system crashing decision cannot be followed by the other branches that are opposed. Popular constitutionalism of Lincoln, inherited from Jackson, Washington, Hamilton Jefferson- the Court cannot get the last say- otherwise they could do something like approve secession and a so-called democracy would sit by and watch it happen. Lincoln said that's not democracy, not a republic, what he said at Gettysburg, pretty basic. Plus few, if any, serious democracies give courts the power to destroy the government over the objection of the electorate and their elected representatives. Constitutional history is that popularly approved revolutions occur where old interpretations get wiped out as with Lochner- Roberts, like Taney, is trying to use the Court to circumvent democracy, Taney for the slaveocracy, Roberts for the aristocracy, both instances coup d'etat without popular support or Constitutional text. No rule that Congress can't take charge as during Reconstruction, New Deal, civil rights.  

                •  Right (1+ / 0-)
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                  Basically to make anything really stick in our system you need two of the three branches to agree or at least acquiesce.  There are constitutional ways around a court ruling - amendment or sometimes just tweaking the original law - but lower court judges are still likely to enforce what SCOTUS said.  I'm not a fan of open defiance or impeachment for decisions we don't like.  A prime example is Andrew Jackson's response regarding Indian removal - "Marshall has made his decision; now let him enforce it." has always made me cringe and Congress would have been well within their rights to impeach Jackson  for not adhering to the ultimate ruling on the Constitution had they been so inclined.

    •  Yes. And? (3+ / 0-)

      So a Democratic Senate adds two seats for a Dem President, and then when there's a Republican President and a Republican Senate, they add four more?

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