The Supreme Court is supposed to be the last-resort, the fail-safe, the watcher of the US legal system. But somehow it has become infected with partisan BS and now we have to wonder Who watches the watchers? How do we get out of this mess?
Neither the constitution or enacted laws are always in the best interest of the USA. If that is the case it isn’t the job of the Supreme Court to change them. That is the job of the people either directly or through their elected representatives.
The Supreme Court changes laws all the time. Where is the line between "interpreting what laws mean" and "deciding what laws mean", i.e. changing law and making new law? The Supreme Court has been in the business of changing and making new law for a long time; this sitting court is just the worst example of it.
There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.
Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.
For non-lawyer readers, the "emanations" quote is from Griswold v. Connecticut, recognizing a constitutionally-based privacy right to use contraception. The complete quote is:
<quote>
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.
The right of association contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.
The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
</quote>
https://scholar.google.com/scholar_case?case=122769221450000... at 484 (cleaned up, extra paragraphing added).
A sweeping right to kill fetuses is not logically implied from a right to be secure against warrantless searches. Many legal systems have the latter protection, but the US is an aberration in interpreting it to create some right to bodily autonomy.
> Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.
The Ninth Amendment is just a savings clause. It cannot support conjuring new rights into existence by spring boarding off enumerated ones. Put differently, the bill of rights isn’t a set of legal principles which can be invoked as the building blocks to divine previously non-existent rights to override democracy.
The quoted portion of Griswold is unpersuasive in the extreme. I’d call up and yell at any associate that handed me anything like that. People would be up in arms if the Court used similarly vacuous reasoning to, for example, divine a “right” that was economic or regulatory in nature.
You don't need the "for anything ...." part of your sentence: The Exceptions and Regulations Clause is part of Article III and explicitly gives Congress the power to limit the Supreme Court's appellate jurisdiction in pretty much all (federal) cases:
<quote>
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. [That is, the Supreme Court is the trial court; in those cases, SCOTUS practice is to appoint a "special master" — typically, a former SCOTUS clerk — to hear the case and submit findings of fact and conclusions of law for the Court's consideration.]
In all the other Cases before mentioned [i.e., all cases where federal courts have any jurisdiction at all], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
</quote>
(Emphasis and extra paragraphing added.)
Moreover, because all lower (federal) courts are creatures of Congress from the get-go, there's no reason to think Congress can't limit the jurisdiction of those courts. Congress has repeatedly done this in the past by creating specialty courts, e.g., the Court of Federal Claims and the former Court of Customs and Patent Appeals (merged into the Federal Circuit in 1982).
An excellent question. Marbury isn't itself so much a problem as how courts — and the All-Writs Act — have implemented the basic principle. But people have gone along with expansive judicial review for two centuries now, so it's pretty much locked in as "how things are done."
Congress could still limit the reach of Marbury without a constitutional amendment, I think: Under the Exceptions and Regulations Clause, Congress could pass a law saying, for example, some or all of the following:
1. Only SCOTUS has the power to declare an act of Congress (and/or a federal regulation) unconstitutional; a lower court's declaration of unconstitutionality is simply an advisory opinion that has the effect of putting the case in question on hold. (The latter part would need more thought as to the operational details.)
2. A SCOTUS declaration of unconstitutionality has no effect unless agreed to by at least a 7-2 vote.
3. A SCOTUS declaration of unconstitutionality can be overridden by, say, a 3/5 vote of each of the House and Senate, subject to the usual rules about presidential vetoes and pocket vetoes.
Is Congress likely to do any of the foregoing? Probably not — but there might be at least some bipartisan support for cautiously shifting more power back to the elected political branches.
For its internal purposes the Court can certainly make any voting rules it wants. But I'd submit that Congress has the power (under the Exceptions and Regulations Clause) to limit what external effect is to be given to Court votes that don't rise to a congressionally-specified threshold.
Without the Warren Court's decisions in Brown v. Board or Cooper v. Aaron ("separate but equal" schools), we likely would have had even more race-related social upheaval in the 60s than we actually did. Robert Caro's books on LBJ recount how he (LBJ) had to work very hard and skillfully to get civil- and voting-rights legislation past decades-long Southern congressional blockades — Southern committee chairman, plus Senate filibusters — and even then it was a near-run thing.
Without SCOTUS- and Fifth-Circuit intervention — back then, the "Mighty Fifth" was far more liberal than today — desegregation would have taken years longer, maybe even decades. The race riots and other violence we saw in the 60s (which I remember very well from childhood, including living in a Washington D.C. suburb during the riots after MLK's assassination) would likely have been even worse.
That’s completely different from “emanations from penumbras”—which is just pulling stuff out of your butt. Nothing in the Constitution makes the Supreme Court an Iran-style Guardian Council, the final arbiter on social and moral issues.
It’s no different than any other written legal document. I have a lease agreement with Toyota. That document can be interpreted—it doesn’t need to expressly enumerate everything. But that doesn’t mean you can read it to govern say how I raise my children. Just because everything doesn’t need to be enumerated doesn’t mean that some things aren’t outside the scope of the document.
The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.
And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.
If Congress is in deadlock, that means that Americans cannot agree on the rules. In that case, yes... no rules ought to be made, because it's not going to represent American's interests writ large.
You are actually arguing that rules should be made up by unelected bureaucrats while admitting that the representatives substantially disagree on those rules and would not be able to legislate them themselves.
That means you are asking bureaucrats to go against the collective will of democratically elected representatives.
And if your argument is 'congress is in deadlock so no rules ought to be made' then fine. Except the Supreme Court is continuing to make up rules during that deadlock, many of which have a direct and measurable impact on my daily quality of life.
So what happens when the Supreme Court steps in and says that delegated authority is no longer valid? The answer is that we become more nonfunctional and the intention is clear, because the court has partisan objectives.
Given that the overwhelming majority of government workers are themselves partisan in one direction (DC is by far majority democrat, and government workers the same), one can easily argue the opposite: that allowing bureaucratic rule making is itself partisan.
by determining whether a law is constitutional or not, they are indeed changing laws
It's not partisan BS, it's blatant corruption
That's a lot of words for "the court doesn't lean my way, so let us act like the entire system has failed". Extremely low quality bait.