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I feel like a lot of people here would do well to try and understand the role of the Supreme Court, instead of treating it like a second version of Congress.

andrekandre 4y ago
> instead of treating it like a second version of Congress. what do you mean specifically?
- gedy 4y ago
  Not the OP, but many folks treat the SCOTUS as divided into the red and blue teams, and that they have to vote like whatever party would, vs an independent check on the other two branches of gov't.
- forgetfulness 4y ago
  The SCOTUS is a political battleground where Federal laws can be passed as jurisprudence on the interpretation of the US Constitution, circumventing the legislative process. Instead of laws on reproductive rights, you had a ruling even detailing the time frames in which abortion was legal. Instead of legalizing gay marriage, you have a ruling on the federal recognition of licenses issued in individual states. Instead of a law on lobbying, you have a ruling saying that monetary contributions to campaigns are the free speech of lobbying groups. Instead of an organic law on weapons permits, you have a ruling saying what kinds of firearm regulations states can pass. But people can't say this politicization of the SCOTUS is new; back when the hot topic were worker rights, in the early XX century, those were the battles being fought there, to skip Congressional debates: https://reason.com/2021/12/02/the-laissez-faire-origins-of-the-supreme-courts-abortion-precedents/ https://reason.com/2021/12/02/the-laissez-faire-origins-of-t...
  - andrekandre 4y ago
    great answer thanks
- DantesKite 4y ago
  The Supreme Court does not create laws. Congress does. The Supreme Court interprets those laws, making sure they do not violate the Constitution. The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written. Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal. There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.
yieldcrv 4y ago
That's too complicated for most people. Although it does pain me to see people using their energy so ineffectively. Protester: "6 unelected officials can't decide what I can do!" Supreme Court: "That's literally what we just said!" If Congress punts issues around indefinitely for its own political wheeling and dealing, it still cannot outsource a decision on those issues to other branches of the federal government. Whether thats to the executive branch or the judicial branch. Not hard! Except more of your elected representatives! If consensus is impossible then that's the reality we live in, the means won't be able to justify the ends, you have to work within the consensus mechanism prescribed on every topic.
- seoaeu 4y ago
  > Protester: "6 unelected officials can't decide what I can do!" > Supreme Court: "That's literally what we just said!" Bullshit. The court was perfectly happy telling millions of people they had no right to an abortion. They’re just a bunch of partisan hacks
  - yieldcrv 4y ago
    that is a very popular perspective, which reinforces exactly what I said about it being too complicated for people. Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available. Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
    - vwcx 4y ago
      Good point. It's interesting to think about this outsourcing as a relief valve Congress uses. Feels like a function of the monetary stakes for any decision are too high. Even freshmen congressional reps are too soaked in the financial implications of their own function that they punt their appointed power to the judicial branch.
davidw 4y ago
I'm old enough to remember when I could grudgingly accept that there was some wisdom in decisions I disagreed with, even if perhaps not enough to sway me. But I could see something argued intelligently. This is just nakedly partisan stuff going on. I think viewing it through that lens - "we're going to do what we want because it fits our politics" - makes the most sense.
- zionic 4y ago
  > This is just nakedly partisan stuff going on. The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent). Now all that technical debt is coming back to kick our ass. This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
  - xnx 4y ago
    > much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. As opposed to shaky electoral/gerrymandering grounds
  - davidw 4y ago
    > This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws. Proper laws are no match for calvinball rulings.
    - usrn 4y ago
      This is very much the opposite of calvinaball. The rules are in the constitution and that hasn't changed in quite a while. EDIT: RE: no right to poop(sic) in the constitution It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.
Miner49er 4y ago
It is impossible to keep partisanship out of the court, so it is a lot like a second version of Congress.
- JohnHaugeland 4y ago
  We managed for hundreds of years.
  - thomascgalvin 4y ago
    Mitch McConnell broke the Senate, and through that, the Judiciary.
    - Bhilai 4y ago
      Yes and the recent stuff with the wife of a SCOTUS justice involved in conspiracy to overturn an election is definitely a sign of hyper partisanship.
    - InTheArena 4y ago
      This is the problem with partisanship. Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used. Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply. We've been destroying our own government with crap like this for the last 20 years. Partisanship is a hell of a drug.
  - Miner49er 4y ago
    Not everyone thinks so: https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482 https://www.politico.com/news/magazine/2022/04/03/the-suprem...
  - luma 4y ago
mistrial9 4y ago
on the other hand, there have been confrontations with the judicial branch Supreme Court and others in the past, just not seriously in living memory. I was surprised to find in Wikipedia a discussion of changing the number of judges in the pre-WWII era also ("court packing").
kergonath 4y ago
In the end, they still accept or reject laws, with no accountability whatsoever. The supreme court’s decisions are laws, for all intent and purposes, and have just as much weight as what Congress writes. The incestuous relationship between the judiciary and the legislative branch in common law systems is very problematic and does not allow true separation of powers. Like so much in our democratic governments, this works as long as most participants behave in good faith, but breaks down when some do not.
boringg 4y ago
The way in which judges are brought to the bench in America and subsequently to SCOTUS is political. While it isn't Congress it isn't as independent as many people previously portrayed it.
- coredog64 4y ago
  I wonder if there’s a change within living memory that has caused that cough Bork cough Snark aside, there’s a reasonable case to be made that Congress has been increasingly treating the judiciary as a super-legislature. Far easier to avoid the work of compromise etc. when you can punt it to the USSC. Whether that’s pure laziness or something structural based on a reduction of overall party power is up for discussion.
- CWuestefeld 4y ago
  As far as I can tell, the nonsense with Court appointments began back in the 80s, with the campaign against Reagan's nominee Robert Bork. Since then there's been a gradually ramping escalation of hostility from both sides. The GOP had to pay back the DEMs for the Bork thing, the DEMs try to smear Thomas, vetting of nominees is held up, then entirely withheld until the President leaves office, and so forth. The politicization of the Court is a completely bipartisan affair going back 4 decades at least. We might even say it goes back 8 decades, to FDR's threats to pack the court (see "a switch in time saves nine").
  - generj 4y ago
    Bork’s appointment problems stem from Reagan’s essentially rewarding him for obstructing impeachment of Nixon. I’ve never understood why the Democrats are painted as the bad guys interfering in a non-partisan appointment of Bork. Nominating Bork was an insane act.
  - zeroonetwothree 4y ago
    It’s not as if Bork was first. Haynsworth and Carswell were rejected by democrats for political reasons (leading to Blackmun being confirmed). Abe Fortas was rejected as Chief Justice by republicans. And we can find many earlier examples as well.
kweingar 4y ago
On constitutional issues, the Supreme Court is absolutely a second version of Congress, except they're unelected and mostly choose their successors. It is a side-channel for lawyers and activists on all sides of the political spectrum to achieve what they couldn't achieve in the legislature. Judicial review was a mistake.
CWuestefeld 4y ago
Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary". Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way. But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value. Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.
- ceejayoz 4y ago
  > But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
  - zeroonetwothree 4y ago
    As well as the “privileges and immunities” clause. The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
  - CWuestefeld 4y ago
    There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else. You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).
mc32 4y ago
I'm hopeful they will visit AUMF at some point and revert back to having the Congress have to explicitly authorize war and also not redefine things as near-war but not war. Deploying troops in active conflicts = war.
mberning 4y ago
Absolutely correct. There is a process for writing laws. There is a process for amending the constitution. But instead of building a broad coalition to go and do these things they would rather roll the dice with the judiciary. And when they lose try to change the judiciary. Completely wrong headed. We need to get our legislature working. We also need people to realize that living in a democracy means that you don’t always get your way.
cryptonector 4y ago
Make the court large enough and it can be our version of the House of Lords, and a third house of Congress.
kevin_b_er 4y ago
But that's just what it is now, isn't it? A political entity driven by political goals. With an outsized power to reinterpret laws and rules to suit a certain group's political goals. It may have started with a certain role, but it is now a political entity. I treat it as such.
2OEH8eoCRo0 4y ago
This right here. Taking a single US Govt elective was an eye opening experience for me. People also need to try and understand that not every issue is a federal issue. There are also 50 state governments.

andrekandre 4y ago

> instead of treating it like a second version of Congress. what do you mean specifically?

gedy 4y ago
Not the OP, but many folks treat the SCOTUS as divided into the red and blue teams, and that they have to vote like whatever party would, vs an independent check on the other two branches of gov't.
forgetfulness 4y ago
The SCOTUS is a political battleground where Federal laws can be passed as jurisprudence on the interpretation of the US Constitution, circumventing the legislative process. Instead of laws on reproductive rights, you had a ruling even detailing the time frames in which abortion was legal. Instead of legalizing gay marriage, you have a ruling on the federal recognition of licenses issued in individual states. Instead of a law on lobbying, you have a ruling saying that monetary contributions to campaigns are the free speech of lobbying groups. Instead of an organic law on weapons permits, you have a ruling saying what kinds of firearm regulations states can pass. But people can't say this politicization of the SCOTUS is new; back when the hot topic were worker rights, in the early XX century, those were the battles being fought there, to skip Congressional debates: https://reason.com/2021/12/02/the-laissez-faire-origins-of-the-supreme-courts-abortion-precedents/ https://reason.com/2021/12/02/the-laissez-faire-origins-of-t...
- andrekandre 4y ago
  great answer thanks
DantesKite 4y ago
The Supreme Court does not create laws. Congress does. The Supreme Court interprets those laws, making sure they do not violate the Constitution. The Supreme Court is like a compiler simply running the instructions it's been told. It doesn't have any input over what's written. Historically, people have used the Supreme Court to create laws, circumventing the voting process and giving 9 people oligarch-like power. This is not ideal. There's also the general expectation the Supreme Court should do what's "right" which again, isn't a relevant metric for judging whether something is constitutional. The Supreme Court at its best is an amoral, apolitical institution.

yieldcrv 4y ago

That's too complicated for most people. Although it does pain me to see people using their energy so ineffectively. Protester: "6 unelected officials can't decide what I can do!" Supreme Court: "That's literally what we just said!" If Congress punts issues around indefinitely for its own political wheeling and dealing, it still cannot outsource a decision on those issues to other branches of the federal government. Whether thats to the executive branch or the judicial branch. Not hard! Except more of your elected representatives! If consensus is impossible then that's the reality we live in, the means won't be able to justify the ends, you have to work within the consensus mechanism prescribed on every topic.

seoaeu 4y ago
> Protester: "6 unelected officials can't decide what I can do!" > Supreme Court: "That's literally what we just said!" Bullshit. The court was perfectly happy telling millions of people they had no right to an abortion. They’re just a bunch of partisan hacks
- yieldcrv 4y ago
  that is a very popular perspective, which reinforces exactly what I said about it being too complicated for people. Congress outsourced the decision to the judicial branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available. Congress outsourced emissions decision to the executive branch, the judicial branch said its for the elected representatives, aka Congress, to decide. Barring any supremacy from Congress, state laws and the consensus mechanisms of those states are the only laws available.
  - vwcx 4y ago
    Good point. It's interesting to think about this outsourcing as a relief valve Congress uses. Feels like a function of the monetary stakes for any decision are too high. Even freshmen congressional reps are too soaked in the financial implications of their own function that they punt their appointed power to the judicial branch.

davidw 4y ago

I'm old enough to remember when I could grudgingly accept that there was some wisdom in decisions I disagreed with, even if perhaps not enough to sway me. But I could see something argued intelligently. This is just nakedly partisan stuff going on. I think viewing it through that lens - "we're going to do what we want because it fits our politics" - makes the most sense.

zionic 4y ago
> This is just nakedly partisan stuff going on. The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent). Now all that technical debt is coming back to kick our ass. This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
- xnx 4y ago
  > much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. As opposed to shaky electoral/gerrymandering grounds
- davidw 4y ago
  > This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws. Proper laws are no match for calvinball rulings.
  - usrn 4y ago
    This is very much the opposite of calvinaball. The rules are in the constitution and that hasn't changed in quite a while. EDIT: RE: no right to poop(sic) in the constitution It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.

Miner49er 4y ago

It is impossible to keep partisanship out of the court, so it is a lot like a second version of Congress.

JohnHaugeland 4y ago
We managed for hundreds of years.
- thomascgalvin 4y ago
  Mitch McConnell broke the Senate, and through that, the Judiciary.
  - Bhilai 4y ago
    Yes and the recent stuff with the wife of a SCOTUS justice involved in conspiracy to overturn an election is definitely a sign of hyper partisanship.
  - InTheArena 4y ago
    This is the problem with partisanship. Blockade of judges started in 2001, when Democrats declared Bush illigetimate, and decided that no judges would be selected. Republicans threatened the "nuclear option" (removing fillibusters). The "Gang of 14" in 2005 wrote ideological ground rules and approved a set number of judges to keep the nuclear option from being used. Obama came to office, and the Democrats used the nuclear option - despite the gang of 14 framework, but then said that it doesn't apply to supreme court ballots. Republicans came in and decided that yes, it did apply. We've been destroying our own government with crap like this for the last 20 years. Partisanship is a hell of a drug.
- Miner49er 4y ago
  Not everyone thinks so: https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482 https://www.politico.com/news/magazine/2022/04/03/the-suprem...
- luma 4y ago

mistrial9 4y ago

on the other hand, there have been confrontations with the judicial branch Supreme Court and others in the past, just not seriously in living memory. I was surprised to find in Wikipedia a discussion of changing the number of judges in the pre-WWII era also ("court packing").

kergonath 4y ago

In the end, they still accept or reject laws, with no accountability whatsoever. The supreme court’s decisions are laws, for all intent and purposes, and have just as much weight as what Congress writes. The incestuous relationship between the judiciary and the legislative branch in common law systems is very problematic and does not allow true separation of powers. Like so much in our democratic governments, this works as long as most participants behave in good faith, but breaks down when some do not.

boringg 4y ago

The way in which judges are brought to the bench in America and subsequently to SCOTUS is political. While it isn't Congress it isn't as independent as many people previously portrayed it.

coredog64 4y ago
I wonder if there’s a change within living memory that has caused that cough Bork cough Snark aside, there’s a reasonable case to be made that Congress has been increasingly treating the judiciary as a super-legislature. Far easier to avoid the work of compromise etc. when you can punt it to the USSC. Whether that’s pure laziness or something structural based on a reduction of overall party power is up for discussion.
CWuestefeld 4y ago
As far as I can tell, the nonsense with Court appointments began back in the 80s, with the campaign against Reagan's nominee Robert Bork. Since then there's been a gradually ramping escalation of hostility from both sides. The GOP had to pay back the DEMs for the Bork thing, the DEMs try to smear Thomas, vetting of nominees is held up, then entirely withheld until the President leaves office, and so forth. The politicization of the Court is a completely bipartisan affair going back 4 decades at least. We might even say it goes back 8 decades, to FDR's threats to pack the court (see "a switch in time saves nine").
- generj 4y ago
  Bork’s appointment problems stem from Reagan’s essentially rewarding him for obstructing impeachment of Nixon. I’ve never understood why the Democrats are painted as the bad guys interfering in a non-partisan appointment of Bork. Nominating Bork was an insane act.
- zeroonetwothree 4y ago
  It’s not as if Bork was first. Haynsworth and Carswell were rejected by democrats for political reasons (leading to Blackmun being confirmed). Abe Fortas was rejected as Chief Justice by republicans. And we can find many earlier examples as well.

kweingar 4y ago

On constitutional issues, the Supreme Court is absolutely a second version of Congress, except they're unelected and mostly choose their successors. It is a side-channel for lawyers and activists on all sides of the political spectrum to achieve what they couldn't achieve in the legislature. Judicial review was a mistake.

CWuestefeld 4y ago

Recent history shows us many examples of SCOTUS saying "the Constitution doesn't let you do this", and people being up in arms crying "but the thing you just struck down is necessary". Folks: it's not within the Court's authority to decide what is a good idea and what is a bad idea. Their sole job is to interpret laws through the lens of the Constitution. The justices may well agree with your wishes of what Congress could do, but they see that the current laws of our nation won't allow Congress to do it, or at least not in that way. But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. In such events, you can't claim that the Court is corrupt because the justices won't recognize the important of what you value. Rather, you have to recognize that it's become your moral duty to alter the laws of the land to allow for what you seek. The Constitution's Article V is there precisely for this reason. Granted, it's a really high bar to clear, but there is a built-in mechanism for fixing any such bugs that we find in the Constitution.

ceejayoz 4y ago
> But even if you believe that a given law is good - that women should have an inalienable right to an abortion, or that there should be tight controls on who can carry a weapon, or whatever - you've got to recognize that sometimes the Constitution does not give the government the power to make that happen. It does, though, via the Ninth Amendment, which explicitly notes that the Constitution is not an exhaustive listing of the rights of American citizens.
- zeroonetwothree 4y ago
  As well as the “privileges and immunities” clause. The whole point of these was to avoid unenumerated rights being completely unprotected. The current court seems to think only the 1st and 2nd amendment exist.
- CWuestefeld 4y ago
  There's an argument to be made there, but it's most certainly NOT "explicit". The 9th does say that there are other rights, that's pretty much its whole point. But it absolutely does not "explicitly" mention abortion or anything else. You also ignored my example of 2A, or the current controversy (for which I haven't yet read the argument, but I assume that the 10th Amendment plays into it in exactly the same way you're arguing for the 9th).

mc32 4y ago

I'm hopeful they will visit AUMF at some point and revert back to having the Congress have to explicitly authorize war and also not redefine things as near-war but not war. Deploying troops in active conflicts = war.

mberning 4y ago

Absolutely correct. There is a process for writing laws. There is a process for amending the constitution. But instead of building a broad coalition to go and do these things they would rather roll the dice with the judiciary. And when they lose try to change the judiciary. Completely wrong headed. We need to get our legislature working. We also need people to realize that living in a democracy means that you don’t always get your way.

cryptonector 4y ago

Make the court large enough and it can be our version of the House of Lords, and a third house of Congress.

kevin_b_er 4y ago

But that's just what it is now, isn't it? A political entity driven by political goals. With an outsized power to reinterpret laws and rules to suit a certain group's political goals. It may have started with a certain role, but it is now a political entity. I treat it as such.

2OEH8eoCRo0 4y ago

This right here. Taking a single US Govt elective was an eye opening experience for me. People also need to try and understand that not every issue is a federal issue. There are also 50 state governments.