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

[bomberfox]

Congress can expand the court or enact constitutional amendments which would override the supreme court.

 

[mrjurrs]

mrjurrs:

To the honourable member from "The Bay". This is a check to balance powers written into the US constitution, so discussing its possible use is the purpose of this thread; the filIbuster shall continue!

Cheers and be well.
Evilroddy.

I always enjoy your gentility, thank you.

I would suggest that the checks and balances that are written into the Constitution, cannot be implemented due to a Senate rule. Kill the filibuster, force the Senate to vote on issues instead of just working on their job security. Would laws whiplash for a while? Possibly, but not certainly. Let the voters see the impact of the political ideology they follow.

Take care.

 

[Evilroddy]

You mean the abuses allowed by the Congress via such action. Of course, at the time you speak of the majority of the SCOTUS membership was "southern." Therefore "untrustworthy" in the eyes of the Republican controlled Congress.

The ante-bellum SCOTUS decision in Dred vs. Scott case pretty much illustrated to the Congress how ideologically compromised the court was at this time and how averse to constitutionalism it was too. The exemption clause of Article III, Sect. 2 has been used many times since, rarely to hinder the court and far more often to help it by clearing backlogs of pending cases.

Actually, they don't else Congress would have amended the Constitution, or made permanent change rather than narrow ones as you cited.

That was Congress acting reasonably responsibly. If only we could all count on the SCOTUS to do the same when it dominated by either liberal or conservative leaning justices. Alas we can't and thus the need for the Exception Clause.

To you too.

As always, cheers and be well to you.
Evilroddy.

 

[Evilroddy]

Growing power by handing back over power to the states to handle things at their level? That's the opposite. Further, you also made accusations about recent rulings, so pushing back on your false claims is a legitimate response to what you posted.

Fishking:

My apologies to you for not getting back to you more quickly but these have been some very busy days of late.

I think you may have missed my point. It is the SCOTUS which has grown in power, not the Congress. The Congress has been very busy reducing its powers and responsibilities by delegating Congressional authority and cravenly allowing the other two branches of your tricameral state to poach its powers. Yes I make accusations and from my historical perspective they are true, but in order to not derail the thread with arguments about tangents I will not get bogged down with tangents in this thread.

But, yes, there is a concern of the more liberal types of judges who rule outside of the actual powers of the Constitution and making de facto constitutional amendments that violate the separation of powers. I see attempts at what you're suggesting being shot down by the court itself, as it's not the job of the courts to be a body that is bent to the fickle will of the people and the current waves of populism. That is the Congress' position and it's up to them to make those laws themselves.

This is not a liberal vs a conservative problem. When the court goes too far in either direction and in doing so hurts the general welfare and domestic tranquility of your republic, then it should be disciplined through exception and jurisdiction narrowing by the Congress. The Exception Clause in Article III, Section 2, paragraph two of your republic's constitution is not an amedmentment but a remedy explicitly written into your second constitution. The court cannot shoot down the Exception Clause because it is explicitly written into your republic's constitution, unlike the SCOTUS power of Judicial Review which is not written into the constitution but was derived from a SCOTUS decision in 1803. Furthermore the SCOTUS has recognised both the constitutionality and the legality of the Exception Clause multiple times since 1868 when I believe the Exception Clause was first used to limit the SCOTUS's appelate jurisdiction in the review of the Habeas Corpus Act of 1867. The court's job is to examine law and to determine whether it is constitutional, while at the same time respecting jurisprudence and stare decis. It's got to do all of that, not just parts.

Part of the problem is there is no mandate to actually make the big changes that progressives want the proper way, via constitutional amendment. In fact, if anyone is close to having the power to amend the Constitution it is the GOP as they have much more state control than the Dems do. Either way, that leaves us with the status quo as that is how our system works and I absolutely love it. Progressives hate it because they want to tear the whole system down but they don't have that mandate.

Your opinions are noted. I think you are panting all progressives with an unnecessarily broad brush and attributing to the vast majority of them much more extreme motivations than they likely have, but these opinions of yours are outside of the scope of this discussion.

Cheers and be well.
Evilroddy.

 

[natman]

It is the SCOTUS which has grown in power, not the Congress.

The Dobbs decision reduced the court's power. It ruled that the previous court had overstepped by in effect writing legislation and returned that power to the legislatures where it belongs. The current court has restricted it's reach to matters that are covered by the Constitution or existing law.

 

[HangLow]

​

 

[Evilroddy]

Actually, it is the ability of the SCOTUS to determine if a law, rule, regulation, or action of either of the other two branches is CONSTITUTIONAL. It is a power established by Marbury v. Madison and it has stood the test of time because it has been recognized for over 200 years as a mainstay of American Constitutional jurisprudence.

Captain Adverse:

Yes, we have been over this already. My point is that the Power of Judicial Review was awarded to the SCOTUS by its own ruling in 1803 but the Exception Clause was actually written into the the constitution itself. Thus the Congressional power is superior to the SCOTUS power and therefore can and should be used by Congress carefully when the SCOTUS missteps in the eyes of the Congress. The SCOTUS could not rule against such action because this Congressional power is explicitly written into the Constitution so the SCOTUS could not rule the Congress use of the Exception Clause unconstitutional. The Exception Clause has bee frequently used in American legal history so it too has a long legal tradition and has the additional benefit of being a lawful remedy which is written into the constitution. Therefore in a struggle between the power of Judicial Review and the power of the Exception Clause, the Judicial Review is the constitutionally weaker power.

If the original body of founders and supporters of the new nation had thought it was judicial overreach, it would have been dealt with at that time. They did not, and it was accepted up to the Post-Civil War period.

They likely did think it was so very important and thus they made sure to write it into the constitution.

Yet those subsequent exceptions were still reviewed by SCOTUS at the time and found Constitutional. This likely because they recognized the Congress was dealing with a "conquered territory" whose members had been deprived of sovereign Statehood pending reconstruction and admission back into the US body politic.

As stated above Judicial Review is subservient to the Exceptions Clause because the Exceptions Clause is written into the constitution. The SCOTUS would look ridiculous declaring a power written into the constitution as unconstitutional.

However, as soon as each State was fully re-admitted, those limits were null and void.

The limits of McCardie (1868) were never made null and void. The Habeas Corpus Act of 1867 was never struck down.

Not at all. In order for SCOTUS to rule on something, it has to be brought before it. Even if it has to be frozen by a writ and dragged before the Court.

Judicial Review has a very specific meaning under American law and IS NOT the same power as the Appelate Power of the SCOTUS or any other lower federal appeals court.

State Courts echo the SCOTUS, but are limited by their own Constitutions, and only deal with internal State matters.

Irrelevant. We are discussing a Federal Power of the US Congress.

It is subject to Congressional impeachment proceedings. It is also subject to Section 2 limitations. Yet our government has run fairly smoothly knowing that people have a "disinterested" Judicial system protecting Constitutional rights. Otherwise, IMO we would all be subject to an abusive Presidency or Congress. Worse, we might have to deal with a Parliamentary system, which didn't seem to bode well for free expression the last time that occurred.

The SCOTUS is also subject to the Exception Clause. It's just another tool the Congress can and has used to either limit the court's power or to help it manage cases. The Executive and the president cannot use the Exception Clause, it is uniquely a Congressional power. Neither the Supreme Court nor the Congress would be converted into a pseudo-parliamentary system and the constitution guards against the Congress ever trying to assert a power like Parliamentary Sovereignty.

See next post.

 

[Evilroddy]

Continued from last post.

I'll stop you right there and remind you SCOTUS id subject to discipline, via impeachment by Congress. Worse yet, the power to increase membership and "stack" the Court also rests with Congress. IMO that is a worse problem because it has always been used to bully the SCOTUS, often into bad rulings we are still dealing with today.

I will repeat my point. The need to have judicial review of the Congress and the Executive by the SCOTUS is real and is still a critical, present-day need. However the need for SCOTUS answerability to the other branches of government is also a critical, competing and countervailing need for checks and balances.

IMO it is. As the push to "stack, limit, or otherwise weaken" the SCOTUS has typically come from the Democrat side of the house. (Exceptions including the post-Civil War Republican controlled Congress).

Here we shall have to disagree. No one can argue with opinion.

Perhaps, but then it typically ends up "self-correcting" eventually, as shown by those many rulings overturning bad prior law.

That takes too long and in the mean time legal stability, jurisprudence and state decisis are thrown into a shambles. Better to fix it proactively if possible.

Cheers back,

Cheers and be well.
Evilroddy.

 

[Rich2018]

The Supreme Court is meant to be a check/balance

But instead it has become a political tool of the GOP

It should be abolished and its role taken over by the Senate.

 

[fmw]

Don't be ridiculous. The current court is a bad joke.

That is an opinion and a minority one at that.

 

[EMNofSeattle]

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.

Congress has no constitutional authority to ban “gerrymandering” at all. So in reality this is an appropriate use of the Supreme Court.

Districting is an authority solely devolved to state legislatures. No body other than those legislatures can have any input whatsoever on congressional district boundaries under the plain text of the constitution

 

[EMNofSeattle]

The Supreme Court is meant to be a check/balance

But instead it has become a political tool of the GOP

It should be abolished and its role taken over by the Senate.

Roe would’ve been abolished in 1973 if that were the case

 

[Gateman_Wen]

That is an opinion and a minority one at that.

Yeah.... NOPE.

 

[Blue Dog]

Congress has no constitutional authority to ban “gerrymandering” at all. So in reality this is an appropriate use of the Supreme Court.

Districting is an authority solely devolved to state legislatures. No body other than those legislatures can have any input whatsoever on congressional district boundaries under the plain text of the constitution

Not to split hairs, but Congress can pass any law it pleases. Only the Supreme Court can render it null and void. Can the Senate filibuster, absolutely.

However, There is no mechanism if a majority of the HoR and Senate pass a bill that is blatantly unconstitutional.

 

[bomberfox]

In essence there are already some checks and balances on scotus

 

[fmw]

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

The Congress can undo any supreme court decision with a constitutional law. Is it time? That is a matter of opinion assuming you want to undo the recent R v W decision.

 

[JayDubya]

Is it time for the US Congress to limit the appelate jurisdiction of the SCOTUS as an appellate court in certain areas of law?

No, and it won’t happen. It would be baseless.

Given that the present SCOTUS has made decisions which fly in the face of stare decisis,

Wrong then is wrong now.

has ignored the protections of the 9th Amendment for unenumerated rights,

Didn’t ignore it, removed one off the list because it didn’t belong, and for their purposes they should remove the rest, too. But unfortunately they say they won’t. Still, credit where credit is due in removing the most noxiously egregious falsely cited “right.”

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?

No, this is just originalism and following the Constitution.

I know AOC wants to do this thing, which is sure a bellweather that it is terrible as anything could be.

 

[JayDubya]

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.

Article I, Section 8.

They have no authority granted to dictate the criminal code within the states.

Congress sets the criminal code for federal territory like Washington DC and military bases. Congress can and should immediately ban the practice of abortion in all federal territory. But it cannot dictate one way or the other against the 50 states. The most they can do is propose a Constitutional Amendment and hope 38 states ratify it. Considering more than half of the states supported Missouri in Dobbs…

 

[Slartibartfast]

Congress has no constitutional authority to ban “gerrymandering” at all. So in reality this is an appropriate use of the Supreme Court.

Districting is an authority solely devolved to state legislatures. No body other than those legislatures can have any input whatsoever on congressional district boundaries under the plain text of the constitution

That is actually not completely true. It does not appear that congress can do anything in regards to elections for state level position, but has a great deal of authority over federal level positions.

Article I, Section 4, Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

 

[EMNofSeattle]

That is actually not completely true. It does not appear that congress can do anything in regards to elections for state level position, but has a great deal of authority over federal level positions.

Article I, Section 4, Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

That refers to the scheduling and conduction of the elections themselves. Not the drawing of legislative districts.

 

[Slartibartfast]

That refers to the scheduling and conduction of the elections themselves. Not the drawing of legislative districts.

Incorrect, the terms places and manner speak directly to districts and their regulation.

The Elections Clause - FindLaw

Often known as the "Elections Clause," Article I, Section 4, Clause 1 of the Constitution outlines the powers given to Congress and the states regarding elections.

constitution.findlaw.com

 

[Rich2018]

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.

SCOTUS is politically biased. Accordingly, each justice on it, needs to face mandatory re-selection every 4 or 5 years.

 

[mrjurrs]

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.

SCOTUS has lost the trust of the nation. Time to restructure the court.

I prefer the 9 justice 18 year term path.

 

[Rich2018]

SCOTUS has lost the trust of the nation. Time to restructure the court.

I prefer the 9 justice 18 year term path.

Why 18 years and not say 4 or 5 ?
Why could a SCOTUS justice be re-elected if the show themselves to be impartial and competent ?

 

[mrjurrs]

Why 18 years and not say 4 or 5 ?
Why could a SCOTUS justice be re-elected if the show themselves to be impartial and competent ?

18 because it is important to have a stable judiciary. No I don't want justices elected.