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However, some arguments here on HN have started to convince me that the SCOTUS role as 'supreme' or 'final' is not really correct and that Jefferson saw this.

by graycat 13y ago

However, some arguments here on HN have started to convince me that the SCOTUS role as 'supreme' or 'final' is not really correct and that Jefferson saw this. Instead, after the SCOTUS come the voters who can tell Congress, e.g., "I don't care what the SCOTUS says. I'm a citizen and a voter, and I say that what the NSA has been doing spying on US citizens violates the Fourth Amendment, and I want you to pass a law throttling the NSA and getting them honoring the Fourth Amendment." And if such a law is not enough, then the citizens can amend the Constitution. It will be nice if some plaintiff with standing to sue brings a case before the SCOTUS and wins. E.g., maybe a class action on behalf of all 120 million or so Verizon customers who had their telephone metadata grabbed by the NSA. Apparently Google is bringing a case.

anigbrowl 13y ago
That's politics and not law. The GP post was clearly contemplating a higher court not a different part of the body politic.
- graycat 13y ago
  In https://news.ycombinator.com/item?id=6000791 is > (as the court is the last defender of the constitution) and in part I was responding to that, and other claims, that the SCOTUS is the 'last word' or some such. And recently there is a Jefferson quote on one of the related threads here on HN where Jefferson in effect says that the SCOTUS judges are no less corrupt, etc. than people in other branches of government. The conclusion is that, really, the last word and too often the crucial word on what is constitutional has to be the voters who tell Congress what to do and/or push through a constitutional amendment. So, I was trying to be realistic and correct about the real role of the SCOTUS in protecting, say, the Fourth Amendment and not to push politics.
saraid216 13y ago
Effectively, no judgement is ever really final. This is because, in a democracy, we must constantly acknowledge that our judgement could be wrong. Separation of powers, as you correctly describe it, manifests that acknowledgement by providing an avenue to contradict every action. Congress can pass a stupid law, but the President can refuse to sign it and the SCOTUS can deem it unconstitutional. The President can sign a stupid order, but Congress can impeach him. SCOTUS can make a stupid decision, but the President can refuse to acknowledge it and Congress can rewrite the rules. It's not easy in any case, and there are a lot of hoops to jump through. Generally speaking, each branch declines to take their nuclear option by acknowledging the implicit threat available and compromising beforehand. Obamacare and DOMA are both recent and useful case studies for this interplay; ignore the content and the rhetoric and just look at the mechanics of what each entity did and when and why.
ensignavenger 13y ago
Yeah, but if the People get a law passed to say what they want, then the Attorney General declines to defend/enforce it, and then Supreme Court rules that the People don't have standing.

by graycat 13y ago

anigbrowl 13y ago

That's politics and not law. The GP post was clearly contemplating a higher court not a different part of the body politic.

graycat 13y ago
In https://news.ycombinator.com/item?id=6000791 is > (as the court is the last defender of the constitution) and in part I was responding to that, and other claims, that the SCOTUS is the 'last word' or some such. And recently there is a Jefferson quote on one of the related threads here on HN where Jefferson in effect says that the SCOTUS judges are no less corrupt, etc. than people in other branches of government. The conclusion is that, really, the last word and too often the crucial word on what is constitutional has to be the voters who tell Congress what to do and/or push through a constitutional amendment. So, I was trying to be realistic and correct about the real role of the SCOTUS in protecting, say, the Fourth Amendment and not to push politics.

saraid216 13y ago

Effectively, no judgement is ever really final. This is because, in a democracy, we must constantly acknowledge that our judgement could be wrong. Separation of powers, as you correctly describe it, manifests that acknowledgement by providing an avenue to contradict every action. Congress can pass a stupid law, but the President can refuse to sign it and the SCOTUS can deem it unconstitutional. The President can sign a stupid order, but Congress can impeach him. SCOTUS can make a stupid decision, but the President can refuse to acknowledge it and Congress can rewrite the rules. It's not easy in any case, and there are a lot of hoops to jump through. Generally speaking, each branch declines to take their nuclear option by acknowledging the implicit threat available and compromising beforehand. Obamacare and DOMA are both recent and useful case studies for this interplay; ignore the content and the rhetoric and just look at the mechanics of what each entity did and when and why.

ensignavenger 13y ago

Yeah, but if the People get a law passed to say what they want, then the Attorney General declines to defend/enforce it, and then Supreme Court rules that the People don't have standing.