4 ms·

Effectively, the Constitution is whatever 5 Supreme Court justices say it is.

by lapcat 1y ago

JumpCrisscross 1y ago
> Effectively, the Constitution is whatever 5 Supreme Court justices say it is The Supreme Court is more defined by acts of Congress than by the Constitution. The Constitution is ultimately what the Congress says it is.
- onlyrealcuzzo 1y ago
  Assuming a functional Supreme Court, not completely filled with partisan hacks.
  - JumpCrisscross 1y ago
    > Assuming a functional Supreme Court Nope. The whole point is the Congress can restructure the Supreme Court in highly profound ways. Shadow docket? The whole thing where the court chooses which cases it tries? The lack of a standard of ethics? These are not Constitutionally empowered. (Hell, the fact that the Supreme Court is a permanent bench of justices versus a rotating set chosen by lot for each case?) Worst case I guess you need 60 votes in the Senate to remove.
    - dh2022 1y ago
      Well, it looks though like these 60 votes required to change these rules will not happen. Which makes me think these rules do not matter for most of the people. This ties in with my other comment in this thread - the US population is living comfortably enough that they simply do not care about any of these things (Supreme court packed with conservative for 2 decades at least, Bill of Rights gutted, ubiquitous surveillance, etc...).
      - JumpCrisscross 1y ago
        > it looks though like these 60 votes required to change these rules will not happen Then change that rule. The sixty-vote threshold can be changed by the majority. They're literally chamber rules, not even statute. > US population is living comfortably enough that they simply do not care about any of these things I wouldn't say this. Americans care about pocketbook issues. Not democratic ideals. Not foreign policy.
        onlyrealcuzzo 1y ago
        If it was that simple, the current administration would've gotten rid of the Supreme Court. It's not that simple, for a reason. To abolish the Supreme Court, the Constitution itself would need to be changed. This requires a constitutional amendment, which requires much more than simply 60 senators and a majority in the house. It's almost as if our country wasn't founded by complete morons - who had the insight to figure out that at some point in the future, it would be possible for morons to get a simple majority. You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown).
        JumpCrisscross 1y ago
        > If it was that simple, the current administration would've gotten rid of the Supreme Court Remember the nuclear option [1]? That was the Senate removing the 60% rule for judicial appointments. ("Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on, which opened the door to filibusters. In 1917, the Senate introduced a procedure to allow for ending debate (invoking cloture) with a two-thirds majority, later reduced in 1975 to three-fifths of the senators duly chosen and sworn (60 if there is no more than one vacancy).") > To abolish the Supreme Court, the Constitution itself would need to be changed To abolish, yes. To restructure, no. Again, § 1 of Article III and the Appointments Clause are everything the Constitution has to say about the supreme Court. > You can expand the supreme court with 60 senators You can expand it with 50. Nothing in the Constitution says anything about 60 Senators--the only time it requires a supermajority is in § 3 of Article I in respect of impeachments [2]. Senate rules say 60 Senators. A simple majority can amend the Senate's rules. > You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown) Nothing here is correct. SCOTUS was expanded five times: 1801, undone in 1802, 1807, 1837 and 1863; then thinned in 1866 and 1867; then expanded again in 1869 [3]. FDR threatened to expand the court, but didn't. Nothing happened in 1979 or 2008. Most of those votes did not occur with a supermajority (we literally don't even have the vote counts for many of them). None of them required 60 votes because during all of them the Senate had fewer than 100 members. [1] https://en.wikipedia.org/wiki/Nuclear_option https://en.wikipedia.org/wiki/Nuclear_option [2] https://constitution.congress.gov/constitution/article-1/ https://constitution.congress.gov/constitution/article-1/ [3] https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Size_of_the_court https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_St...
    - rockercoaster 1y ago
      > Hell, the fact that the Supreme Court is a permanent bench of justices versus a rotating set chosen by lot for each case? I've been making noise about this option but it doesn't seem to have entered even the online-politics-discussion mainstream yet. Everyone's like "expand the court" but I think both expanding it to match the count of circuits, and forming it by lot from lower courts each session (or multiple lots for a session—it might be good to at least have one group choose the cases, and a different one hear and rule on them) is a far more elegant solution and provides longer-lasting protection against problems, while also depoliticizing the reform to a degree (it wouldn't just be whoever's in control instantly gaining several justices) which I think makes it far more likely to actually be an achievable and durable reform. It's even got a phase-in option that'd be immediately beneficial and also side-step any questions about whether an SC justice can be "demoted" to merely another federal judge: leave the current ones in place, start drawing the new seats by lot immediately. Existing justices' seats fall under the lot system as they come open. Done.
- lapcat 1y ago
  I'm not sure what you mean, other than the fact that the Senate confirms Supreme Court justices? But this typically happens over the span of many years, across different Congresses. Also, nominees are purposely vague about how they would rule on future cases, sometimes to the consternation of the President who appointed them.
  - sjsdaiuasgdia 1y ago
    Theoretically Congress has a lot of power over the Supreme Court, if they're sufficiently unified and motivated. The confirmation aspect is one end, but Congress also has the power to impeach Supreme Court justices. So, theoretically, Congress could impeach all the justices that are believed to be acting in unconstitutional ways, and then refuse to confirm any new nominees that are believed would act similarly.
    - JumpCrisscross 1y ago
      > Theoretically Congress has a lot of power over the Supreme Court, if they're sufficiently unified and motivated Far from theoretical. We got the New Deal because the Congress bullied the court.
      - pseudalopex 1y ago
        This is debated.[1] And sufficient unity and motivation do not exist in Congress now. Theoretically was appropriate. [1] https://balkin.blogspot.com/2012/04/who-won-new-deal-confrontation-between.html https://balkin.blogspot.com/2012/04/who-won-new-deal-confron...
  - JumpCrisscross 1y ago
    > not sure what you mean, other than the fact that the Senate confirms Supreme Court justices? This is the entire text of Article III [1]. Section 1, the part that concerns itself with the Supreme Court, is 64 words. That and the Appointments clause [2] are all the Constitution has to say about our entire judiciary. Everything else is a creature of statute. Which means a simple majority of the House and Senate, together with the President, can change it. [1] https://constitution.congress.gov/constitution/article-3/ https://constitution.congress.gov/constitution/article-3/ [2] https://constitution.congress.gov/browse/essay/artII-S2-C2-3-1/ALDE_00013092/ https://constitution.congress.gov/browse/essay/artII-S2-C2-3...
- cosmicgadget 1y ago
  Tell that to all of the independent executive agencies they've created over the past century. The SCOTUS majority has very clearly stated that they are starting with an originalist analysis for everything.

Effectively, the Constitution is whatever 5 Supreme Court justices say it is.

by lapcat 1y ago

Effectively, the Constitution is whatever 5 Supreme Court justices say it is.

> Effectively, the Constitution is whatever 5 Supreme Court justices say it is The Supreme Court is more defined by acts of Congress than by the Constitution. The Constitution is ultimately what the Congress says it is.

onlyrealcuzzo 1y ago
Assuming a functional Supreme Court, not completely filled with partisan hacks.
- JumpCrisscross 1y ago
  > Assuming a functional Supreme Court Nope. The whole point is the Congress can restructure the Supreme Court in highly profound ways. Shadow docket? The whole thing where the court chooses which cases it tries? The lack of a standard of ethics? These are not Constitutionally empowered. (Hell, the fact that the Supreme Court is a permanent bench of justices versus a rotating set chosen by lot for each case?) Worst case I guess you need 60 votes in the Senate to remove.
  - dh2022 1y ago
    Well, it looks though like these 60 votes required to change these rules will not happen. Which makes me think these rules do not matter for most of the people. This ties in with my other comment in this thread - the US population is living comfortably enough that they simply do not care about any of these things (Supreme court packed with conservative for 2 decades at least, Bill of Rights gutted, ubiquitous surveillance, etc...).
    - JumpCrisscross 1y ago
      > it looks though like these 60 votes required to change these rules will not happen Then change that rule. The sixty-vote threshold can be changed by the majority. They're literally chamber rules, not even statute. > US population is living comfortably enough that they simply do not care about any of these things I wouldn't say this. Americans care about pocketbook issues. Not democratic ideals. Not foreign policy.
      - onlyrealcuzzo 1y ago
        If it was that simple, the current administration would've gotten rid of the Supreme Court. It's not that simple, for a reason. To abolish the Supreme Court, the Constitution itself would need to be changed. This requires a constitutional amendment, which requires much more than simply 60 senators and a majority in the house. It's almost as if our country wasn't founded by complete morons - who had the insight to figure out that at some point in the future, it would be possible for morons to get a simple majority. You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown).
        JumpCrisscross 1y ago
        > If it was that simple, the current administration would've gotten rid of the Supreme Court Remember the nuclear option [1]? That was the Senate removing the 60% rule for judicial appointments. ("Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on, which opened the door to filibusters. In 1917, the Senate introduced a procedure to allow for ending debate (invoking cloture) with a two-thirds majority, later reduced in 1975 to three-fifths of the senators duly chosen and sworn (60 if there is no more than one vacancy).") > To abolish the Supreme Court, the Constitution itself would need to be changed To abolish, yes. To restructure, no. Again, § 1 of Article III and the Appointments Clause are everything the Constitution has to say about the supreme Court. > You can expand the supreme court with 60 senators You can expand it with 50. Nothing in the Constitution says anything about 60 Senators--the only time it requires a supermajority is in § 3 of Article I in respect of impeachments [2]. Senate rules say 60 Senators. A simple majority can amend the Senate's rules. > You can expand the supreme court with 60 senators - but that's only happened a handful of times (13 - 4 of which happened under FDR, 5 of which happened from 59-69, so 4 times outside of that, and only once since 79 after the 2008 meltdown) Nothing here is correct. SCOTUS was expanded five times: 1801, undone in 1802, 1807, 1837 and 1863; then thinned in 1866 and 1867; then expanded again in 1869 [3]. FDR threatened to expand the court, but didn't. Nothing happened in 1979 or 2008. Most of those votes did not occur with a supermajority (we literally don't even have the vote counts for many of them). None of them required 60 votes because during all of them the Senate had fewer than 100 members. [1] https://en.wikipedia.org/wiki/Nuclear_option https://en.wikipedia.org/wiki/Nuclear_option [2] https://constitution.congress.gov/constitution/article-1/ https://constitution.congress.gov/constitution/article-1/ [3] https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Size_of_the_court https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_St...
  - rockercoaster 1y ago
    > Hell, the fact that the Supreme Court is a permanent bench of justices versus a rotating set chosen by lot for each case? I've been making noise about this option but it doesn't seem to have entered even the online-politics-discussion mainstream yet. Everyone's like "expand the court" but I think both expanding it to match the count of circuits, and forming it by lot from lower courts each session (or multiple lots for a session—it might be good to at least have one group choose the cases, and a different one hear and rule on them) is a far more elegant solution and provides longer-lasting protection against problems, while also depoliticizing the reform to a degree (it wouldn't just be whoever's in control instantly gaining several justices) which I think makes it far more likely to actually be an achievable and durable reform. It's even got a phase-in option that'd be immediately beneficial and also side-step any questions about whether an SC justice can be "demoted" to merely another federal judge: leave the current ones in place, start drawing the new seats by lot immediately. Existing justices' seats fall under the lot system as they come open. Done.
lapcat 1y ago
I'm not sure what you mean, other than the fact that the Senate confirms Supreme Court justices? But this typically happens over the span of many years, across different Congresses. Also, nominees are purposely vague about how they would rule on future cases, sometimes to the consternation of the President who appointed them.
- sjsdaiuasgdia 1y ago
  Theoretically Congress has a lot of power over the Supreme Court, if they're sufficiently unified and motivated. The confirmation aspect is one end, but Congress also has the power to impeach Supreme Court justices. So, theoretically, Congress could impeach all the justices that are believed to be acting in unconstitutional ways, and then refuse to confirm any new nominees that are believed would act similarly.
  - JumpCrisscross 1y ago
    > Theoretically Congress has a lot of power over the Supreme Court, if they're sufficiently unified and motivated Far from theoretical. We got the New Deal because the Congress bullied the court.
    - pseudalopex 1y ago
      This is debated.[1] And sufficient unity and motivation do not exist in Congress now. Theoretically was appropriate. [1] https://balkin.blogspot.com/2012/04/who-won-new-deal-confrontation-between.html https://balkin.blogspot.com/2012/04/who-won-new-deal-confron...
- JumpCrisscross 1y ago
  > not sure what you mean, other than the fact that the Senate confirms Supreme Court justices? This is the entire text of Article III [1]. Section 1, the part that concerns itself with the Supreme Court, is 64 words. That and the Appointments clause [2] are all the Constitution has to say about our entire judiciary. Everything else is a creature of statute. Which means a simple majority of the House and Senate, together with the President, can change it. [1] https://constitution.congress.gov/constitution/article-3/ https://constitution.congress.gov/constitution/article-3/ [2] https://constitution.congress.gov/browse/essay/artII-S2-C2-3-1/ALDE_00013092/ https://constitution.congress.gov/browse/essay/artII-S2-C2-3...
cosmicgadget 1y ago
Tell that to all of the independent executive agencies they've created over the past century. The SCOTUS majority has very clearly stated that they are starting with an originalist analysis for everything.