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

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  •  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.

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