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Marbury is nothing more than a power-grab by the judiciary that we have all decided to abide by, for the moment. The judiciary has no power whatsoever other tha

by evgen 6y ago

Marbury is nothing more than a power-grab by the judiciary that we have all decided to abide by, for the moment. The judiciary has no power whatsoever other than that which comes from its perceived legitimacy; legitimacy which has been heavily damaged over the past 20 years and which is dangling by a thread at the moment. There is really nothing stopping Congress from slapping back the Supremes other than convention, and I suspect that this is going to be ending soon -- Congress can cut the Supreme Court back to nothing but original jurisdiction and then create a new court for constitutional appeals to bypass them completely. Quoting case law won't help them and no matter what they may claim there is nothing nine politicians in black robes can do about it if the other two branches decide that this is how things are going to work going forward.

torstenvl 6y ago
No, Congress cannot just create a shadow Supreme Court within our Constitutional framework. And if you're talking about disregarding the Constitution, then your point is meaningless.
- evgen 6y ago
  Disregarding what the Supreme Court says the Constitution says != disregarding the Constitution. Important distinction that will become more important in the future.
- jkaplowitz 6y ago
  The Constitution doesn't directly say the Supreme Court has a power of judicial review that can overturn laws. It's just that the Supreme Court interprets it that way, and we currently go along with that. The person who proposed a separate top court for constitutional appeals (not me) was making more of a realpolitik point than a constitutional one. However, I think a variation of the idea would be constitutional: within the Supreme Court, Congress creates two divisions for purposes of appellate jurisdiction cases (they would stay unified for original jurisdiction cases to avoid a constitutional problem). Justices would be assigned to only one or the other, no overlap. One division handles constitutional appeals, one division handles other cases. Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional, leaving the only appellate jurisdiction as claims that officials are acting illegally or unconstitutionally or disputes of lower-level decisions as incorrect. I'm not saying this is necessary good policy, but it would be constitutional.
  - torstenvl 6y ago
    > The Constitution doesn't directly say the Supreme Court has a power of judicial review Yes, it does. Jurisdiction literally means the ability to say what the law is. There is no plausible definition of appellate jurisdiction in the Anglo-American legal tradition that would not involve the power and duty to reconcile incompatible sources of law. > Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional No, it cannot. First, the power to make "exceptions" does not imply the ability to completely remove power. Second, whatever power Congress had under Article III was limited by later amendments, e.g., it cannot remove jurisdiction in a way that results in an impingement on the right to due process under the Fifth Amendment. There is nothing in the text of the Constitution nor in any case law that would support your implicit contention that Article III is somehow immune to being subject to the amendments process. Third, although Klein has been a bit disfavored lately, it was reaffirmed in Patchak only a couple years ago. Some commentators focus on the plurality opinion while ignoring the fact that they're only a plurality and not the dissent because of Ginsburg's and Sotomayor's concurrence. That opinion interpreted Congress's intent generously and reasoned that Congress merely amended its waiver of sovereign immunity rather than dictated a result in a particular case. Of note, the concurring opinion explicitly agreed in principle with the "dissent," and they still ruled substantively on the merits notwithstanding Congress's attempt to strip jurisdiction. If you'd like to continue this, please read Chemerinsky's excellent hornbook on federal jurisdiction first. And, you know, maybe go to law school.

by evgen 6y ago

torstenvl 6y ago

No, Congress cannot just create a shadow Supreme Court within our Constitutional framework. And if you're talking about disregarding the Constitution, then your point is meaningless.

evgen 6y ago
Disregarding what the Supreme Court says the Constitution says != disregarding the Constitution. Important distinction that will become more important in the future.
jkaplowitz 6y ago
The Constitution doesn't directly say the Supreme Court has a power of judicial review that can overturn laws. It's just that the Supreme Court interprets it that way, and we currently go along with that. The person who proposed a separate top court for constitutional appeals (not me) was making more of a realpolitik point than a constitutional one. However, I think a variation of the idea would be constitutional: within the Supreme Court, Congress creates two divisions for purposes of appellate jurisdiction cases (they would stay unified for original jurisdiction cases to avoid a constitutional problem). Justices would be assigned to only one or the other, no overlap. One division handles constitutional appeals, one division handles other cases. Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional, leaving the only appellate jurisdiction as claims that officials are acting illegally or unconstitutionally or disputes of lower-level decisions as incorrect. I'm not saying this is necessary good policy, but it would be constitutional.
- torstenvl 6y ago
  > The Constitution doesn't directly say the Supreme Court has a power of judicial review Yes, it does. Jurisdiction literally means the ability to say what the law is. There is no plausible definition of appellate jurisdiction in the Anglo-American legal tradition that would not involve the power and duty to reconcile incompatible sources of law. > Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional No, it cannot. First, the power to make "exceptions" does not imply the ability to completely remove power. Second, whatever power Congress had under Article III was limited by later amendments, e.g., it cannot remove jurisdiction in a way that results in an impingement on the right to due process under the Fifth Amendment. There is nothing in the text of the Constitution nor in any case law that would support your implicit contention that Article III is somehow immune to being subject to the amendments process. Third, although Klein has been a bit disfavored lately, it was reaffirmed in Patchak only a couple years ago. Some commentators focus on the plurality opinion while ignoring the fact that they're only a plurality and not the dissent because of Ginsburg's and Sotomayor's concurrence. That opinion interpreted Congress's intent generously and reasoned that Congress merely amended its waiver of sovereign immunity rather than dictated a result in a particular case. Of note, the concurring opinion explicitly agreed in principle with the "dissent," and they still ruled substantively on the merits notwithstanding Congress's attempt to strip jurisdiction. If you'd like to continue this, please read Chemerinsky's excellent hornbook on federal jurisdiction first. And, you know, maybe go to law school.