Is it Time for the US Congress to Impose Checks and Balances on the SCOTUS?

[Evilroddy]

From Article III, Section 2, paragraph two of the US Constitution:

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Con-gress shall make.

Notice the last clause, "... with such Exceptions, and under such Regulations as the Con-gress shall make.".

Is it time for the US Congress to limit the appelate jurisdiction of the SCOTUS as an appellate court in certain areas of law? Given that the present SCOTUS has made decisions which fly in the face of stare decisis, has ignored the protections of the 9th Amendment for unenumerated rights, has arguably employed a kind of false-originalism, divorced from history in order to act as cover for what many see as political rather than strictly legal decisions and has potentially threatened the general welfare and domestic tranquility of the American republic, is it time for Congress, as a check and balance, to limit what can be argued to be a rogue SCOTUS's appelate jurisdiction in certain areas of law?

This was done in 1868 when Congress removed appelate jurisdiction over habeas corpus cases from the court and the SCOTUS then accepted Congress's power to do so.

An Act to amend “An Act to amend the judiciary act . . . (Habeas Corpus Act of 1868), March 27, 1868

When William H. McCardle used the Habeas Corpus Act of 1867 to challenge his imprisonment, members of Congress feared his case could test the legality of Reconstruction. While the Supreme Court considered McCardle’s arguments, Congress amended the 1867 act to repeal the court’s habeas corpus...

www.visitthecapitol.gov

What say you and why do you say it?

Cheers and be well.
Evilroddy.

 

[RetiredUSN]

The USSC is fine the way it is. Every time the liberals don't get their way, it's time to change the court.

The members of the USSC were accused of being being political activists with Roe v. Wade in the1970's. The members of the USSC are being told again that they are political activists by saying that it's not a Constitutional matter. They will be the punching bag for the liberals who are too lazy to go after the real culprits............................ legislative representatives.

I'm pro choice up to 16 weeks and for medical reasons afterwards and that's plenty of time for the mother to make a decision.

The unborn can feel pain after 20 weeks.

 

[Gateman_Wen]

The USSC is fine the way it is. Every time the liberals don't get their way, it's time to change the court.

The members of the USSC were accused of being being political activists with Roe v. Wade in the1970's. The members of the USSC are being told again that they are political activists by saying that it's not a Constitutional matter. They will be the punching bag for the liberals who are too lazy to go after the real culprits............................ legislative representatives.

I'm pro choice up to 16 weeks and for medical reasons afterwards and that's plenty of time for the mother to make a decision.

The unborn can feel pain after 20 weeks.

Don't be ridiculous. The current court is a bad joke. They pick the result they want then go searching for rationalizations. These rulings are 100% politically motivated and the last three appointees lied to get the post. They were chosen specifically because they would behave unscrupulously to provide the minority with the dream legislation they couldn't get through congress because of it's unpopularity.

 

[Patriotic Voter]

The "checks and balances system" means the executive, legislative, and judicial branches all have the power to limit what the other two branches do. It is set up so the three branches are considered equal. That is why all presidential nominees must be confirmed by the Senate, including federal judges. It is also why the House of Representatives can impeach the President, Cabinet members, and justices.

Unfortunately, when Trumpublicans attempt to control who gets a confirmation hearing and when (something Democrats would never make the wrong decisions about) we end up with a court that is no better than if the legislature was unable to "check and balance" the executive and judicial branches.

 

[RetiredUSN]

Don't be ridiculous. The current court is a bad joke. They pick the result they want then go searching for rationalizations. These rulings are 100% politically motivated and the last three appointees lied to get the post. They were chosen specifically because they would behave unscrupulously to provide the minority with the dream legislation they couldn't get through congress because of it's unpopularity.

They are a bad joke to flaming liberals who throw a hissy fit anytime they don't get there own way.

Whining bitches.......the whole lot of them.

 

[Evilroddy]

May I please request that posters in this thread debate politely and with mutual respect. I know I have no power to enforce this requet but perhaps we could all find our better angels and debate this issue civilly.

So the question remains, "Should the Congress move to limit the appelate jurisdiction of the SCOTUS in certain areas of law?". Is anybody going to offer a point of view on this possibility?

Cheers and be well.
Evilroddy.

 

[forn]

The Supreme Court judges ARE the checks and balances. If the American People don't like the abortion ruling, they can elect representatives to codify Roe if that's what they want. In the meantime the states can handle it. Liberals are used to having the SC in their back pocket, for once in their life they don't and they go into a rage.

 

[OrphanSlug]

From Article III, Section 2, paragraph two of the US Constitution:

Notice the last clause, "... with such Exceptions, and under such Regulations as the Con-gress shall make.".

Is it time for the US Congress to limit the appelate jurisdiction of the SCOTUS as an appellate court in certain areas of law? Given that the present SCOTUS has made decisions which fly in the face of stare decisis, has ignored the protections of the 9th Amendment for unenumerated rights, has arguably employed a kind of false-originalism, divorced from history in order to act as cover for what many see as political rather than strictly legal decisions and has potentially threatened the general welfare and domestic tranquility of the American republic, is it time for Congress, as a check and balance, to limit what can be argued to be a rogue SCOTUS's appelate jurisdiction in certain areas of law?

This was done in 1868 when Congress removed appelate jurisdiction over habeas corpus cases from the court and the SCOTUS then accepted Congress's power to do so.

An Act to amend “An Act to amend the judiciary act . . . (Habeas Corpus Act of 1868), March 27, 1868

When William H. McCardle used the Habeas Corpus Act of 1867 to challenge his imprisonment, members of Congress feared his case could test the legality of Reconstruction. While the Supreme Court considered McCardle’s arguments, Congress amended the 1867 act to repeal the court’s habeas corpus...

www.visitthecapitol.gov

What say you and why do you say it?

Cheers and be well.
Evilroddy.

It is slightly apples to oranges, but whatever is proposed may change that.

What 1868 was really about is who deals with and makes final decisions on issues related to obscenity. States wanted to do a few things using the 10th, on challenge Supreme Court made other decisions mainly referring to the 1st (not so much the 9th,) ultimately Congress got involved several times over (attempt to legislate then finally throttling the Supreme Court via Jurisdiction of certain Cases being heard.) And even all that did not work out all that well and speaking of not for very long.

Conflicting positions on State's Rights vs. Constitutional Rights, check.
Conflicting positions on the Will of the People via State Legislative efforts vs. Constitutional Rights, check.
Conflicting positions State to State on what obscenity is, check.
Conflicting intentions of Congress to "settle" a matter (before the "Supremacy Clause") vs. the Supreme Court handling this deciding on a challenge, check.

This gets really messy and really quickly because the underlying stress here is something that arguably the majority of the people want (in a State or National) against arguably explicit and inferred rights.

Checks and Balances on the Supreme Court issued by Congress suggests a shift in power towards Congress. That arguably they have anyway but are often too politically polarized thus paralyzed to pass much on.

What I say is, we are playing with fire assuming we can control what is sent up in flames.

 

[Evilroddy]

It is slightly apples to oranges, but whatever is proposed may change that.

What 1868 was really about is who deals with and makes final decisions on issues related to obscenity. States wanted to do a few things using the 10th, on challenge Supreme Court made other decisions mainly referring to the 1st (not so much the 9th,) ultimately Congress got involved several times over (attempt to legislate then finally throttling the Supreme Court via Jurisdiction of certain Cases being heard.) And even all that did not work out all that well and speaking of not for very long.

Conflicting positions on State's Rights vs. Constitutional Rights, check.
Conflicting positions on the Will of the People via State Legislative efforts vs. Constitutional Rights, check.
Conflicting positions State to State on what obscenity is, check.
Conflicting intentions of Congress to "settle" a matter (before the "Supremacy Clause") vs. the Supreme Court handling this deciding on a challenge, check.

This gets really messy and really quickly because the underlying stress here is something that arguably the majority of the people want (in a State or National) against arguably explicit and inferred rights.

Checks and Balances on the Supreme Court issued by Congress suggests a shift in power towards Congress. That arguably they have anyway but are often too politically polarized thus paralyzed to pass much on.

What I say is, we are playing with fire assuming we can control what is sent up in flames.

OrphanSlug:

I am not sure where you're going with this. The issue of controversy was habeas corpus rulings by US Circuit Courts, not obscenity.

"An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789," passed Congress on Feb. 5th, 1867 and was about US circuit courts issuing writs of habeas corpus after hearing petitions for release. The March 27th, 1868 action was in reaction to the allegedly pro-South SCOTUS trying to limit that. The US Congress decided that such moves would threaten the post-bellum Reconstruction project and thus moved to restrict the appelate jurisdiction of the Supreme Court. The Supreme Court agreed that Congress had such power and deferred to Congress in this matter.

Ex parte McCardle, 74 U.S. 506 (1868)

Ex parte McCardle: The Constitution gives the Supreme Court its appellate jurisdiction, but Congress also has the power to make exceptions to it.

supreme.justia.com

THE PRECEDENT—1868 McCARDLE CASE (Published 1964)

ex parte McCardle (1869): case and decision recalled

www.nytimes.com

Cheers and be well.
Evilroddy.

 

[OrphanSlug]

OrphanSlug:

I am not sure where you're going with this. The issue of controversy was habeas corpus rulings by US Circuit Courts, not obscenity.

"An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789," passed Congress on Feb. 5th, 1867 and was about US circuit courts issuing writs of habeas corpus after hearing petitions for release. The March 27th, 1868 action was in reaction to the allegedly pro-South SCOTUS trying to limit that. The US Congress decided that such moves would threaten the post-bellum Reconstruction project and thus moved to restrict the appelate jurisdiction of the Supreme Court. The Supreme Court agreed that Congress had such power and deferred to Congress in this matter.

Ex parte McCardle, 74 U.S. 506 (1868)

Ex parte McCardle: The Constitution gives the Supreme Court its appellate jurisdiction, but Congress also has the power to make exceptions to it.

supreme.justia.com

THE PRECEDENT—1868 McCARDLE CASE (Published 1964)

ex parte McCardle (1869): case and decision recalled

www.nytimes.com

Cheers and be well.
Evilroddy.

Then I am unsure what you are wanting to really talk about, when I look up the major disputes leading to what Congress did in 1867 I see very different motivations.

But, I guess make your point and declare yourself the winner.

 

[lwf]

I'm pro choice up to 16 weeks and for medical reasons afterwards and that's plenty of time for the mother to make a decision.

You're lucky you live in Virginia and are not a girl or woman of child-bearing age, then. Women and girls in some other states don't have the right or authority to make that decision.

 

[natman]

May I please request that posters in this thread debate politely and with mutual respect. I know I have no power to enforce this requet but perhaps we could all find our better angels and debate this issue civilly.

So the question remains, "Should the Congress move to limit the appelate jurisdiction of the SCOTUS in certain areas of law?". Is anybody going to offer a point of view on this possibility?

Cheers and be well.
Evilroddy.

I will.

No.

Even though I don't like repealing Roe v Wade, the reasoning behind the decision was sound. SCOTUS is not supposed to legislate; they are supposed to rule on the law, not make it. Congress should pass a law to protect abortion if that's the national will.

 

[Evilroddy]

Then I am unsure what you are wanting to really talk about, when I look up the major disputes leading to what Congress did in 1867 I see very different motivations.

But, I guess make your point and declare yourself the winner.

OrphanSlug:

This is not about winning but rather about debating and learning. Could you link to one or two sources which you found which connected this 1868 decision to obscenity, so that I might learn more about your position? Thank you in advance if you choose to help out a confused fellow debater.

Cheers and be well.
Evilroddy.

 

[Evilroddy]

I will.

No.

Even though I don't like repealing Roe v Wade, the reasoning behind the decision was sound. SCOTUS is not supposed to legislate; they are supposed to rule on the law, not make it. Congress should pass a law to protect abortion if that's the national will.

natman:

Suppose Congress does that and the SCOTUS strikes the new legislation down by arguing there is no right to abortion enumerated in the constitutions and that the 9th Amendment is moot on the matter? The SCOTUS could stymie he Congress in perpetuity.

Cheers and be well.
Evilroddy.

 

[Gateman_Wen]

They are a bad joke to flaming liberals who throw a hissy fit anytime they don't get there own way.

Whining bitches.......the whole lot of them.

Sure, let's go with that.

 

[natman]

natman:

Suppose Congress does that and the SCOTUS strikes the new legislation down by arguing there is no right to abortion enumerated in the constitutions and that the 9th Amendment is moot on the matter? The SCOTUS could stymie he Congress in perpetuity.

Cheers and be well.
Evilroddy.

SCOTUS could do lots of things, but what they DID do is rule that the matter shouldn't have been decided by the Supreme Court, but by legislative action. IMO, it would be a huge stretch for SCOTUS to overturn Federal legislative action. The constitutional vacuum that led them to overturn RvW because it wasn't a matter for the courts works both ways.

 

[Evilroddy]

SCOTUS could do lots of things, but what they DID do is rule that the matter shouldn't have been decided by the Supreme Court, but by legislative action. IMO, it would be a huge stretch for SCOTUS to overturn Federal legislative action. The constitutional vacuum that led them to overturn RvW because it wasn't a matter for the courts works both ways.

natman:

Between the year 2,000 and the year 2019 the SCOTUS overturned Federal or state legislation at least 86 times (2019 was an incomplete year for this tabulation). So overturning Federal Legislation is a very common result of SCOTUS decisions.

Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court | Resources | Constitution Annotated | Congress.gov | Library of Congress

A table of federal, state, and local laws held unconstitutional by the Supreme Court.

constitution.congress.gov

On the other hand I have only been able to find five examples of Congress limiting the appellate jurisdiction of the SCOTUS or overturning its decisions so far. Congress seems much more restrained than the SCOTUS in this regard.

Cheers and be well.
Evilroddy.

 

[Blue Dog]

I agree with the idea in principle. Congress should have a proper check on the SC beyond confirmation and impeachment.

 

[Captain Adverse]

From Article III, Section 2, paragraph two of the US Constitution:



Notice the last clause, "... with such Exceptions, and under such Regulations as the Con-gress shall make.".

Is it time for the US Congress to limit the appelate jurisdiction of the SCOTUS as an appellate court in certain areas of law? Given that the present SCOTUS has made decisions which fly in the face of stare decisis, has ignored the protections of the 9th Amendment for unenumerated rights, has arguably employed a kind of false-originalism, divorced from history in order to act as cover for what many see as political rather than strictly legal decisions and has potentially threatened the general welfare and domestic tranquility of the American republic, is it time for Congress, as a check and balance, to limit what can be argued to be a rogue SCOTUS's appelate jurisdiction in certain areas of law?

This was done in 1868 when Congress removed appelate jurisdiction over habeas corpus cases from the court and the SCOTUS then accepted Congress's power to do so.

An Act to amend “An Act to amend the judiciary act . . . (Habeas Corpus Act of 1868), March 27, 1868

When William H. McCardle used the Habeas Corpus Act of 1867 to challenge his imprisonment, members of Congress feared his case could test the legality of Reconstruction. While the Supreme Court considered McCardle’s arguments, Congress amended the 1867 act to repeal the court’s habeas corpus...

www.visitthecapitol.gov

What say you and why do you say it?

Cheers and be well.
Evilroddy.

In a word?

NO!
I say it because we need SCOTUS to check the Constitutionality of Federal and State cases.

Whenever I hear someone push this point, I remind them of all the important decisions SCOTUS appellate powers ruled that validly changed society, like overturning Plessey v. Ferguson. Absent that review, we might still have "separate but equal" laws around the nation.

Political power changes like the wind. Some people are pushing for changes that allow authoritarian social goals to come to fruition.

The balance of powers serves to check that lean.

Now you be happy with your Parliamentary system up there in the cold north. Leave us Americans our "peculiar institutions."

 

[AliHajiSheik]

From Article III, Section 2, paragraph two of the US Constitution:



Notice the last clause, "... with such Exceptions, and under such Regulations as the Con-gress shall make.".

Is it time for the US Congress to limit the appelate jurisdiction of the SCOTUS as an appellate court in certain areas of law? Given that the present SCOTUS has made decisions which fly in the face of stare decisis, has ignored the protections of the 9th Amendment for unenumerated rights, has arguably employed a kind of false-originalism, divorced from history in order to act as cover for what many see as political rather than strictly legal decisions and has potentially threatened the general welfare and domestic tranquility of the American republic, is it time for Congress, as a check and balance, to limit what can be argued to be a rogue SCOTUS's appelate jurisdiction in certain areas of law?

This was done in 1868 when Congress removed appelate jurisdiction over habeas corpus cases from the court and the SCOTUS then accepted Congress's power to do so.

An Act to amend “An Act to amend the judiciary act . . . (Habeas Corpus Act of 1868), March 27, 1868

When William H. McCardle used the Habeas Corpus Act of 1867 to challenge his imprisonment, members of Congress feared his case could test the legality of Reconstruction. While the Supreme Court considered McCardle’s arguments, Congress amended the 1867 act to repeal the court’s habeas corpus...

www.visitthecapitol.gov

What say you and why do you say it?

Cheers and be well.
Evilroddy.

There would be no Article 3, Section 2 wording that would keep the Supreme Court from deciding some aspect of an abortion case.

 

[Evilroddy]

In a word?

NO!
I say it because we need SCOTUS to check the Constitutionality of Federal and State cases.

Whenever I hear someone push this point, I remind them of all the important decisions SCOTUS appellate powers ruled that validly changed society, like overturning Plessey v. Ferguson. Absent that review, we might still have "separate but equal" laws around the nation.

Political power changes like the wind. Some people are pushing for changes that allow authoritarian social goals to come to fruition.

The balance of powers serves to check that lean.

Now you be happy with your Parliamentary system up there in the cold north. Leave us Americans our "peculiar institutions."

Captain Adverse:

The SCOTUS's ability to conduct judicial review is no where explicitly granted and described in the US constitution (a marvellous irony in the face of the Roe vs. Wade SCOTUS decision and the unenumerated privacy rights which the justices cited as grounds for undoing the 49-year old SCOTUS decision). Judicial review was established by the Marbury vs. Madison case that was fought out between 1801-1803. So just like Roe vs Wade, which was based on a SCOTUS decision claiming an absence of a constitutional or statutory foundation for privacy rights, so is the role of judicial review by the SCOTUS likewise foundationless and based solely on a SCOTUS decision in 1803. So if stare decisis applies to uphold judicial review by the SCOTUS, then why does it not apply in privacy-right-based Roe vs. Wade and other related cases?

It seems Congress should put the SCOTUS on hold until they can explain that glaring contradiction.

Political power can change quickly but political entrenchment can calcify a society, make it brittle and when citizens' popular discontent grows too strong, shatter brittle society to pieces. No one wants that. So a midway path must be found between radical conservatism and radical progressivism or you're all doomed.

Yes, we in the Democratic Socialist Parliamentary Democracy of Canukistan do things differently, but we see your country quite objectively from outside the fishbowl and we will not remain silent while you lot keep shooting yourselves in the foot with such regularity. You're all too important to us, and we like you lot too. Sorry, but you're just going to have to put up with our foreign ways and foreign perspectives.

Cheers and be well.
Evilroddy.

 

[Evilroddy]

I agree with the idea in principle. Congress should have a proper check on the SC beyond confirmation and impeachment.

Blue Dod:

What should that proper check look like, in your opinion?

Cheers and be well.
Evilroddy.

 

[Blue Dog]

Blue Dod:

What should that proper check look like, in your opinion?

Cheers and be well.
Evilroddy.

Lets illustrate an example for purposes of discussion. This Congress passes a law that bans gerrymandering. Congress than restricts the SC under the Exceptions clause hearing the any cases regarding this law on appeal.

 

[Blue Dog]

Let’s also be clear regarding the catch 22.

A GOP WH and Congress pass a law banning abortion. Congress then invokes the Exceptions clause to prevent any appeal to the SC on this law.

 

[natman]

Between the year 2,000 and the year 2019 the SCOTUS overturned Federal or state legislation at least 86 times (2019 was an incomplete year for this tabulation). So overturning Federal Legislation is a very common result of SCOTUS decisions.

It's fairly common for SCOTUS to overturn Federal or State legislation on constitutional grounds. However, in this case the current court has already ruled that there are no constitutional grounds for the prior court to have made a decision about abortion. So they left the matter up to the legislature. Having done so, it would be extremely difficult for them to overturn Federal legislation on the matter, since they would still have no constitutional ground to do so.