Supreme Court as the Ultimate Arbiter? (1 Viewer)

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I see the Supreme Court as intended to be the ultimate arbiter for constitutionality in the United States. I also think that it was intended to be that way. I know there are some schools of thought that the Supreme Court was never intended to have judicial review, and while I see the merits of that based on a few Jefferson quotes, ultimately I believe that it was intended. Alexander Hamilton seems to surmise as much in Federalist 78 and 80, as well as anti-federalist Robert Yates in anti-Federalist 78. There is also a Stanford study making a good case for it being in use long before the Marbury.

But I'm wondering if this is such a good idea. Many Supreme Court cases are decided 5-4, and after the case becomes fairly rigid precedent forever, with little chance of changing, although the court has certainly reversed itself, with over 100 reversals in the last 80 years. The most obvious example being the difference between Plessy v Ferguson in 1896 and Brown vs Board of Education in 1954. Still though, precedent is fairly likely to stand unless clearly wrong. What bothers me though, is that this near permanence of some of these decisions would be different if one judge retired during a Democrat's term instead of a Republican's or vice versa. Although there are a few David Souter's generally each president knows exactly what he's going to get when he appoints a judge. For instance if Ginsburg or Breyer had retired or died during Bush's presidency, we likely would've had a different opinion against the Health Care Mandate. If Scalia or Thomas had retired in 2009 we would've most likely had a different ruling in Citizen's United. Now we have these same types of problems in Congress, the Presidency, and state legislatures too. Sometimes one of those makes a bad decision. However, it is relatively easy to correct those. If the bad decision was unconstitutional the courts could strike it down, and if it was an otherwise bad decision the people have opportunities relatively frequently to correct them by voting other members in. For Supreme Court mistakes though, not only do you have to wait for the membership to change, which can take years because of their lifelong terms, you must go through the rigorous process of having a case brought to them and accepted by them, and hope that the argument is compelling enough that it overrules the precedent. Chances are that the average person believes the Supreme Court made at least one wrong decision recently between Citizens United and NFIB v. Sebelius among the other hundreds of cases the SCOTUS rules on, but that there will be no opportunity to change the decision any time soon, and possibly for decades.

I think Jefferson is correct when he says: "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."

So I do think there are some problems with the role of the SCOTUS. However, I'm not sure there's anything that can really be done to fix them. I can't think of a better system than the one we have now. I don't think letting individual states overrule Supreme Court cases is the best idea. Having potentially 50 different views on constitutionality with no way to enforce anything nationally if an individual state disagrees. I'm not really sure how to put a check on the power of the Supreme Court on constitutionality, without creating another unchecked body.

So questions:

Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

Do you agree that it is a problem?

Is there actually away to solve the problem and make things better than they are now?

 

[Anagram]

Of course today is really the first time I've thought in depth about this so I could be way off base here.

 

[francois60]

What was supposed to happen is that Congress and the President would also be arbiters of what was constitutional, and thus the Supreme Court would mainly rule on statutes.

Instead, right away we found that the other two branches didn't care about whether what they did was legal or not, so SCOTUS had to step in and assume the role it has today. So no, it's not perfect, but it's the best we can do.

 

[francois60]

BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.

 

[Anagram]

BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.

I'm concerned that would lead to even more incentive to pack the court with partisans rather than good justices.

 

[aberrant85]

Of course today is really the first time I've thought in depth about this so I could be way off base here.

I don't know how it was intended to work, besides the obvious: as part of the checks and balances built into our government. It now functions to determine whether or not laws that congress passes or lower court rulings are constitutional. Of course congress always has the power to amend the constitution with the states.

This use for the Court depends entirely upon their objective analysis of the cases that come before them. You hit the nail on the head when you point out that the endless 5-4 rulings of late are entirely political, based on which seats were vacant under which presidents. The life-long tenures were supposed to isolate the justices from politics, but instead they have become simply an extension of past executive branch administrations that can persist for decades, ruling on cases far into the future based on ideologies carefully selected in another time. Both parties are now in an arms race to fill each vacancy that they can with like-minded justices, lest their successors do.

I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.

If not, then I think the lifetime tenures have to go.

 

[Paschendale]

If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional. The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress, and allow revisiting of older problems later down the line. That our court system, as a whole, is equipped to analyze whether or not a law is a valid is a great thing.

 

[Anagram]

If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional.

Well that's certainly the problem. I don't think the SCOTUS system is perfect, but I'm not sure if there's a better system out there. Congress certainly can't be expected to keep itself in check, I agree with you there.

The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress, and allow revisiting of older problems later down the line. That our court system, as a whole, is equipped to analyze whether or not a law is a valid is a great thing.

It's a great thing we have judicial review, but I do think there are problems with it. It is possible to revisit older problems down the line, but it is a difficult process to do, and even more difficult to change decisions. And there is certainly a problem that the rulings of the SCOTUS in contentious cases pretty much depends on the presidencies that the justices were appointed during. If a few justices retire or die during a Republican's term the court becomes conservative for a very long time and vice versa. But again, these might just be problems we have to live with, because I can't think of a better system.

 

[Anagram]

I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.

I could be comfortable with that if our supercomputers ever become advanced enough. They're nowhere near there yet.

 

[Kobie]

BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.

I don't think criminal penalties for simply being wrong is an answer.

Anyone who says the Constitution isn't open to interpretation in many aspects is wrong. There's plenty of gray areas. Who determines the Constitutionality of a law that could potentially jail the passers of said law? Does everyone who voted for that law get arrested?

This is a terrible idea.

 

[Kobie]

I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.

Someone programmed that computer. Someone told the computer how to think, the litmus test for what's constitutional and what's not.

 

[Bob Blaylock]

What was supposed to happen is that Congress and the President would also be arbiters of what was constitutional, and thus the Supreme Court would mainly rule on statutes.

Instead, right away we found that the other two branches didn't care about whether what they did was legal or not, so SCOTUS had to step in and assume the role it has today. So no, it's not perfect, but it's the best we can do.

I think the founding fathers intended for every public servant who had any role in carrying out public policy, was to individually judge his contemplated actions against the Constitution.

Ideally, Congress would never pass a bill that violated the Constitution. If, by chance, they did, the President would never sign it. And if the President did sign an unconstitutional bill into law, the law-enforcement officers would refuse to enforce it. And if someone were arrested for violating an unconstitutional law, the judge presiding over the case would throw the case out.

There are so many steps that must take place, from Congress writing a bill, to someone being successful prosecuted for breaking the law that that bill ultimately becomes, that I think that they assumed that somewhere along the way, if the law was unconstitutional, someone, at some step, would stop it.

I do not think they anticipated what has really happened, where all the public servants at all levels of the process conspire together, as they do. Congress passes a bill that they know violated the Constitution. The resident, also knowing that it violates the Constitution, signs this bill into law. Officers of the law enforce it, judges allow the prosecution to go forth under these laws, and higher courts uphold the rulings of the lower courts, all the way up to the Supreme Court. All the way along the process, public servants who are sworn to uphold and defend the Constitution, violate that oath, instead pursuing contrary agendas, or just sheepishly “following orders”.

 

[reinoe]

The worst Supreme Court was the Taney court from 1836 to around 1864. If you want to see an activist court see that court. The Rehnquist court comes close though. Two terrible Courts.

 

[Bob Blaylock]

BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.

I fully agree with the need for criminal consequences for any public servant who overtly and willfully violates the Constitution.

Think about the consequences that occur when such a violation occurs. Gun control, for example.

The situation now, every where in the United States, is that an honest citizen can be arrested and prosecuted for a “crime”*that consists of nothing more than legitimately exercising his Second Amendment rights to keep and bear arms. He can spend hard time in prison,he can bear a felony record for the rest of his life,and he can generally have his life ruined. All for doing what the Constitution explicitly affirms that he has a right to do.

Shouldn't those who bear any responsibility for allowing this situation to exist, also face consequences at least as severe as those that they would unjustly impose on an honest citizen?

 

[Bob Blaylock]

I'm concerned that would lead to even more incentive to pack the court with partisans rather than good justices.

How would that differ from what happens now?

Surely, these partisans on the court need to be held to the same standards and consequences that have already been discussed.

 

[Kobie]

I fully agree with the need for criminal consequences for any public servant who overtly and willfully violates the Constitution.

Think about the consequences that occur when such a violation occurs. Gun control, for example.

The situation now, every where in the United States, is that an honest citizen can be arrested and prosecuted for a “crime”*that consists of nothing more than legitimately exercising his Second Amendment rights to keep and bear arms. He can spend hard time in prison,he can bear a felony record for the rest of his life,and he can generally have his life ruined. All for doing what the Constitution explicitly affirms that he has a right to do.

Shouldn't those who bear any responsibility for allowing this situation to exist, also face consequences at least as severe as those that they would unjustly impose on an honest citizen?

The Constitution does say you have the right to bear arms; nowhere in that document does it say you have the right to use them.

Now, I'm not arguing for or against the Second Amendment; what I'm saying is that there is enough gray area in the Constitution that in order to mandate criminal penalties for lawmakers allegedly violating it, someone would have to be that arbiter of what counts as a violation. And many have different ways of looking at that.

 

[Redress]

I see the Supreme Court as intended to be the ultimate arbiter for constitutionality in the United States. I also think that it was intended to be that way. I know there are some schools of thought that the Supreme Court was never intended to have judicial review, and while I see the merits of that based on a few Jefferson quotes, ultimately I believe that it was intended. Alexander Hamilton seems to surmise as much in Federalist 78 and 80, as well as anti-federalist Robert Yates in anti-Federalist 78. There is also a Stanford study making a good case for it being in use long before the Marbury.

But I'm wondering if this is such a good idea. Many Supreme Court cases are decided 5-4, and after the case becomes fairly rigid precedent forever, with little chance of changing, although the court has certainly reversed itself, with over 100 reversals in the last 80 years. The most obvious example being the difference between Plessy v Ferguson in 1896 and Brown vs Board of Education in 1954. Still though, precedent is fairly likely to stand unless clearly wrong. What bothers me though, is that this near permanence of some of these decisions would be different if one judge retired during a Democrat's term instead of a Republican's or vice versa. Although there are a few David Souter's generally each president knows exactly what he's going to get when he appoints a judge. For instance if Ginsburg or Breyer had retired or died during Bush's presidency, we likely would've had a different opinion against the Health Care Mandate. If Scalia or Thomas had retired in 2009 we would've most likely had a different ruling in Citizen's United. Now we have these same types of problems in Congress, the Presidency, and state legislatures too. Sometimes one of those makes a bad decision. However, it is relatively easy to correct those. If the bad decision was unconstitutional the courts could strike it down, and if it was an otherwise bad decision the people have opportunities relatively frequently to correct them by voting other members in. For Supreme Court mistakes though, not only do you have to wait for the membership to change, which can take years because of their lifelong terms, you must go through the rigorous process of having a case brought to them and accepted by them, and hope that the argument is compelling enough that it overrules the precedent. Chances are that the average person believes the Supreme Court made at least one wrong decision recently between Citizens United and NFIB v. Sebelius among the other hundreds of cases the SCOTUS rules on, but that there will be no opportunity to change the decision any time soon, and possibly for decades.

I think Jefferson is correct when he says: "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."

So I do think there are some problems with the role of the SCOTUS. However, I'm not sure there's anything that can really be done to fix them. I can't think of a better system than the one we have now. I don't think letting individual states overrule Supreme Court cases is the best idea. Having potentially 50 different views on constitutionality with no way to enforce anything nationally if an individual state disagrees. I'm not really sure how to put a check on the power of the Supreme Court on constitutionality, without creating another unchecked body.

So questions:

Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

Do you agree that it is a problem?

Is there actually away to solve the problem and make things better than they are now?

Interesting question. To my mind, some one has to be the final arbiter, and no one is more qualified that the Supreme Court. Since the court can and has reversed itself, I think it works satisfactorily. Is it the best possible system? Probably not, though I cannot think of one better. Are there potential problems? Of course, nothing is perfect. Does it do well enough? Yeah, I think so. I will however think some more on this since it is an interesting question.

 

[francois60]

I don't think criminal penalties for simply being wrong is an answer.

Anyone who says the Constitution isn't open to interpretation in many aspects is wrong. There's plenty of gray areas. Who determines the Constitutionality of a law that could potentially jail the passers of said law? Does everyone who voted for that law get arrested?

This is a terrible idea.

It's terrible, but not for the reason you mentioned. If it was simply a matter of being wrong, I would agree. But Congressmen knowingly pass laws of dubious constitutionality, and that's a violation of their oath of office.

 

[Bob Blaylock]

If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional. The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress…

Surely the Supreme Court, as it currently stands, is no less corrupt than Congress or the President. What checks and balances do we have against the Supreme Court?

 

[Redress]

The Constitution does say you have the right to bear arms; nowhere in that document does it say you have the right to use them.

Don't take this wrong, but that is a really really bad argument.

 

[Anagram]

Interesting question. To my mind, some one has to be the final arbiter, and no one is more qualified that the Supreme Court. Since the court can and has reversed itself, I think it works satisfactorily. Is it the best possible system? Probably not, though I cannot think of one better. Are there potential problems? Of course, nothing is perfect. Does it do well enough? Yeah, I think so. I will however think some more on this since it is an interesting question.

That's pretty much what I came up with.

 

[Bob Blaylock]

I don't think criminal penalties for simply being wrong is an answer.

“Being wrong” is one thing. Enacting, enforcing, or upholding a law that overtly violates the Constitution is entirely another. Yes, I absolutely think that there need to be severe criminal penalties for the latter.

 

[Kobie]

“Being wrong” is one thing. Enacting, enforcing, or upholding a law that overtly violates the Constitution is entirely another. Yes, I absolutely think that there need to be severe criminal penalties for the latter.

That's nonsense.

Who determines what constitutes an "overt violation"?

 

[Redress]

I don't know how it was intended to work, besides the obvious: as part of the checks and balances built into our government. It now functions to determine whether or not laws that congress passes or lower court rulings are constitutional. Of course congress always has the power to amend the constitution with the states.

This use for the Court depends entirely upon their objective analysis of the cases that come before them. You hit the nail on the head when you point out that the endless 5-4 rulings of late are entirely political, based on which seats were vacant under which presidents. The life-long tenures were supposed to isolate the justices from politics, but instead they have become simply an extension of past executive branch administrations that can persist for decades, ruling on cases far into the future based on ideologies carefully selected in another time. Both parties are now in an arms race to fill each vacancy that they can with like-minded justices, lest their successors do.

Despite that race to fill vacancies, niether side has gotten an overwhelming majority, and a surprising number of times one or more judges surprises you by how they rule. Best example recently would be the ACA ruling. I would also point out that the rulings tend to be ideological, not political in nature.

I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.

If not, then I think the lifetime tenures have to go.

A computer is only as good, and as impartial, as it's programmer. Find me an unbiased programming team. Good luck with that.

 

[Kobie]

Don't take this wrong, but that is a really really bad argument.

Of course it is; it was intentionally so. But according to the actual words on paper, I'm right.

The right to USE said weapons is implicit with the right to BEAR them. But "implicit" is not the same as "ironclad," and the advocates of criminal penalties for Constitutional violations are blurring the lines between the two.