Senator Ron Wyden sent a letter to the wealthy conservative donor Harlan Crow’s lawyer after records showed undisclosed flights between Hawaii and New Zealand with the Supreme Court justice in 2010.
There really doesn’t seem to be any limit to the amount of bribery going on.
Or just reject judicial review. The constitution doesn’t give the supreme court the power to invalidate laws, only to be the court of last appeal for court cases.
They just invented that power for themselves. Next time they assert that the executive branch via the EPA lacks authority to regulate the environment, just assert that you don’t accept the fabricated power they gave themselves and continue to regulate things as Congress delegated to them.
Sure there is. Someone who has been damaged by the law takes it to court, and the court decides in their favor, and the penalty for violating the law doesn’t apply to them. They don’t veto the law, they just decide the cases brought to them.
That’s different from the judiciary having a veto power they granted themselves. They have the power to decide cases, not the power to strike down a law.
Hell, the constitution even makes it explicit that Congress can pass a law restricting what cases can be appealed to the supreme court in the first place.
If the constitution intended for them to decide the validity of laws, why would it include a clause allowing Congress to pass a law the supreme court can’t review?
If they were supposed to have that power, why wasn’t it out in the constitution? Why was this check left entirely implied while the others were spelled out?
Why did a variety of the framers of the constitution say that it was a terrible idea?
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. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
— Thomas Jefferson
[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.
— a less notable constitutional delegate, but weirdly portentious, on why judicial review should not be included.
Unfortunately not in the way that they did. They would not have been able to have invalidated all laws blocking abortion, but they would be able to set precedent which held that cases involving abortion should be decided in favor of the abortion seeker.
So they could have decided Roe, but it would have been just the case, not the constitutional question.
This is not strictly what everyone means when they talk about ending judicial review.
Some interpret it as “the courts can only interpret the law as written, not it’s constitutionality”.
I disagree with that and think that the court naturally needs to be able to consider multiple laws that apply to a case, and the Constitution is one of those laws.
It’s the “executive branch, you can’t do that” part, where they prevent the law from being enforced. The law remains the law, and the only thing the courts can do is rule on the case.
I try to be consistent with my interpretation and extension of how things would play out, even when it’s an outcome I’m not as fond of. Worst case scenario I need to change my opinion because it leads to an outcome I find intolerable.
I’ve been reflecting on your answer and I keep returning to one point…
In your example the rule in favor of the abortion seeker. As a principled and partial matter, how do these differ from today?
Is your argument that states can and maybe should keep laws around after they’ve been ruled demonstrably against the Constitution? If so, wouldn’t justice only be granted with those with the means to appeal to SCOTUS?
Despite the possibility of tone sounding argumentative, it’s not. I think I’m missing something here and I’m trying to figure it out. Thread is old enough I suspect it’s just the two of us here anyhow.
Totally happy to have a conversation, particularly since I also have conflicted feelings on the question. :)
So the way review works now, the Court can find a law unconstitutional, which sets a “do not enforce” precedent. The can also hear a case involving executive action, and find an order or act unconstitutional and force the executive to stop.
Neither is explicitly in the constitution, and there’s a lot of documentation by the founders about if it should or shouldn’t be.
Totally abolishing judicial review would mean the courts would only be able to rule on the law as written and decide court cases without determining the constitutionality of said laws.
I don’t think that makes much sense, since deciding questions of law requires interpreting applicable laws, and the Constitution is one of them.
It would also leave Congress to decide if their own actions were constitutional, which isn’t great, but also isn’t too different from the supreme court, with the perk of public accountability via elections.
I’m more in favor of a reduced judicial review, where the courts wouldn’t have the power to restrain the executive or legislative branches, but would have the power to decide cases, set precedent, and determine constitutionality of laws, but not “categories” of law.
In the case of Roe, it would have played out that the Texas law would be decided against Texas, but that wouldn’t generalize to invalidating Mississippis similar law. Precedent carries weight, but not the same weight as striking down or invalidating a law.
It cases like “Ohio vs EPA” (Ohio sued the EPA because the EPA said that air pollution that leaves your state is subject to interstate regulation, and set a plan for reducing those emissions. The court ruled that reducing emissions would cause irreparable harm to the states being forced to curtail emissions) the Court would be able to decide the case, but they would not be able to order the executive branch to restrict or change how they execute the clean air act as directed by Congress.
This would have the effect of increasing the number of court cases. Also of making it more difficult to stop an executive whose interpretation of a law with delegated congressional authority is wonky.
It would lessen the courts authority to do things like establish corporate personhood, establish money as speech, or decide the president is (largely) immune from prosecution.
It’s a mixed bag. Historically the courts have done much to advance individual liberties and a general progressive sense of justice. But they have also, in deeper history and more recently, done much to hinder it.
The opinion of (some of) the framers of the constitution that entrusting effectively unaccountable power in the trust that a small group of people will remain unbiased, nonpartisan, and objective for the duration of a lifetime appointment is choosing a kind of oligarchy is compelling.
We spend a lot of time as a country hoping that we have a “good” court, and worrying about what they might change about our society in their next ruling, with very little prospect of being able to influence or overrule that decision.
In a democratic nation, people should not have to say “oh, our legal standards for abortion access have suddenly changed, we better find a way to work around the ruling until a new court can flip it” rather than trying to clarify or pass a law, remove the people who misrepresented our wishes in the next election, or take the ruling as a new precedent and not a definitional shift in our legal structure.
There are good arguments for a largely unassailable court that’s not beholden to public opinion.
The only other way to make them not an effective oligarchy is to reduce their power.
Anytime power rests with one or a few, you’ll have good and bad decisions, depending on the quality of the ruler. Reducing their power reduces both, but it shifts it to more democratic systems, which at least we have feedback on.
At some point while writing this I got an increasingly bad headache and went rambly. Sorry about the wall of text, but hopefully it’s an interesting read at least. 😉(Pretend it’s not a wink but smile with a migraine wince)
Or just reject judicial review. The constitution doesn’t give the supreme court the power to invalidate laws, only to be the court of last appeal for court cases.
They just invented that power for themselves. Next time they assert that the executive branch via the EPA lacks authority to regulate the environment, just assert that you don’t accept the fabricated power they gave themselves and continue to regulate things as Congress delegated to them.
Except then there’s nothing to stop unconstitutional laws
There isn’t anything to stop unconstitutional laws now. What’s the difference?
Sure there is. Someone who has been damaged by the law takes it to court, and the court decides in their favor, and the penalty for violating the law doesn’t apply to them. They don’t veto the law, they just decide the cases brought to them.
That’s different from the judiciary having a veto power they granted themselves. They have the power to decide cases, not the power to strike down a law.
Hell, the constitution even makes it explicit that Congress can pass a law restricting what cases can be appealed to the supreme court in the first place.
If the constitution intended for them to decide the validity of laws, why would it include a clause allowing Congress to pass a law the supreme court can’t review?
If they were supposed to have that power, why wasn’t it out in the constitution? Why was this check left entirely implied while the others were spelled out?
Why did a variety of the framers of the constitution say that it was a terrible idea?
— Thomas Jefferson
— a less notable constitutional delegate, but weirdly portentious, on why judicial review should not be included.
Then does it have the ability to decide Roe?
I understand my question starts at the wrong point. I’m asking how far you’d extend your point.
Because I find it interesting and perhaps feasible.
Unfortunately not in the way that they did. They would not have been able to have invalidated all laws blocking abortion, but they would be able to set precedent which held that cases involving abortion should be decided in favor of the abortion seeker.
So they could have decided Roe, but it would have been just the case, not the constitutional question.
This is not strictly what everyone means when they talk about ending judicial review.
Some interpret it as “the courts can only interpret the law as written, not it’s constitutionality”.
I disagree with that and think that the court naturally needs to be able to consider multiple laws that apply to a case, and the Constitution is one of those laws.
It’s the “executive branch, you can’t do that” part, where they prevent the law from being enforced. The law remains the law, and the only thing the courts can do is rule on the case.
I try to be consistent with my interpretation and extension of how things would play out, even when it’s an outcome I’m not as fond of. Worst case scenario I need to change my opinion because it leads to an outcome I find intolerable.
In general I prefer a policy
I’ve been reflecting on your answer and I keep returning to one point…
In your example the rule in favor of the abortion seeker. As a principled and partial matter, how do these differ from today?
Is your argument that states can and maybe should keep laws around after they’ve been ruled demonstrably against the Constitution? If so, wouldn’t justice only be granted with those with the means to appeal to SCOTUS?
Despite the possibility of tone sounding argumentative, it’s not. I think I’m missing something here and I’m trying to figure it out. Thread is old enough I suspect it’s just the two of us here anyhow.
Totally happy to have a conversation, particularly since I also have conflicted feelings on the question. :)
So the way review works now, the Court can find a law unconstitutional, which sets a “do not enforce” precedent. The can also hear a case involving executive action, and find an order or act unconstitutional and force the executive to stop.
Neither is explicitly in the constitution, and there’s a lot of documentation by the founders about if it should or shouldn’t be.
Totally abolishing judicial review would mean the courts would only be able to rule on the law as written and decide court cases without determining the constitutionality of said laws.
I don’t think that makes much sense, since deciding questions of law requires interpreting applicable laws, and the Constitution is one of them.
It would also leave Congress to decide if their own actions were constitutional, which isn’t great, but also isn’t too different from the supreme court, with the perk of public accountability via elections.
I’m more in favor of a reduced judicial review, where the courts wouldn’t have the power to restrain the executive or legislative branches, but would have the power to decide cases, set precedent, and determine constitutionality of laws, but not “categories” of law.
In the case of Roe, it would have played out that the Texas law would be decided against Texas, but that wouldn’t generalize to invalidating Mississippis similar law. Precedent carries weight, but not the same weight as striking down or invalidating a law.
It cases like “Ohio vs EPA” (Ohio sued the EPA because the EPA said that air pollution that leaves your state is subject to interstate regulation, and set a plan for reducing those emissions. The court ruled that reducing emissions would cause irreparable harm to the states being forced to curtail emissions) the Court would be able to decide the case, but they would not be able to order the executive branch to restrict or change how they execute the clean air act as directed by Congress.
This would have the effect of increasing the number of court cases. Also of making it more difficult to stop an executive whose interpretation of a law with delegated congressional authority is wonky.
It would lessen the courts authority to do things like establish corporate personhood, establish money as speech, or decide the president is (largely) immune from prosecution.
It’s a mixed bag. Historically the courts have done much to advance individual liberties and a general progressive sense of justice. But they have also, in deeper history and more recently, done much to hinder it.
The opinion of (some of) the framers of the constitution that entrusting effectively unaccountable power in the trust that a small group of people will remain unbiased, nonpartisan, and objective for the duration of a lifetime appointment is choosing a kind of oligarchy is compelling.
We spend a lot of time as a country hoping that we have a “good” court, and worrying about what they might change about our society in their next ruling, with very little prospect of being able to influence or overrule that decision.
In a democratic nation, people should not have to say “oh, our legal standards for abortion access have suddenly changed, we better find a way to work around the ruling until a new court can flip it” rather than trying to clarify or pass a law, remove the people who misrepresented our wishes in the next election, or take the ruling as a new precedent and not a definitional shift in our legal structure.
There are good arguments for a largely unassailable court that’s not beholden to public opinion.
The only other way to make them not an effective oligarchy is to reduce their power.
Anytime power rests with one or a few, you’ll have good and bad decisions, depending on the quality of the ruler. Reducing their power reduces both, but it shifts it to more democratic systems, which at least we have feedback on.
At some point while writing this I got an increasingly bad headache and went rambly. Sorry about the wall of text, but hopefully it’s an interesting read at least. 😉(Pretend it’s not a wink but smile with a migraine wince)
Which laws has this supreme court invalidated?
https://constitution.congress.gov/resources/unconstitutional-laws/
The specifics of which laws have been overturned and when are largely immaterial to of it’s something they’re even allowed to do in the constitution.