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[P]
Does the US Supreme Court Work?

By brandtpfundak in Op-Ed
Wed Oct 11, 2000 at 10:34:17 PM EST
Tags: Politics (all tags)
Politics

While driving home from work today I heard a report on NPR talking about the U.S. Supreme Court deciding whether or not to allow people to sue states under the Americans with Disabilities Act (story here.) After listening to some of the transcripts of the hearing today and taking into account other recent Supreme Court decisions (namely their rejecting the fast tracking of the Microsoft case) I started wondering if the Supreme Court indeed was working the way it was intended.


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My problem with the Supreme Court is this. Of all of our Federal governing bodies, they are the only ones who are not elected by the general populace. Instead they are appointed by the President, who in turn has his appointment approved by the U.S. Senate (both of which are elected by the populace in some respect.) All appointments are for life, unless of course the Justice decides to retire (or resign.) As a judicial body, the U.S. Supreme Court has final say on all Constitutional matters. If a law is deemed unconstitutional it is struck dead--the U.S. Congress must creatively figure out a way around it or amend the Constitution.

Now I am sure for many of you, what I have just listed is well known to you. I would argue, however, that perhaps this arrangement gives the U.S. Supreme court too much power. The U.S. Supreme court, as it stands now, is sort of judicial oligarchy whose decisions can not be questioned by the legislative or executive branches. The structure of the judicial branch implies that the founding fathers believed that the only people who would understand the constitution were elected officials and justices appointed by elected officials. That seems hardly democratic.

What do all of you think? As it stands, the justices of the U.S. Supreme Court reflect the ideological legacy of previous presidential administrations. As a younger U.S. voter, I have a problem with a judicial body that is ideologically congruent with administrations I was too young to vote for. Perhaps I am overreacting, but I think that we should worry about the power of the judicial branch when other voters tell me they are voting in the next presidential election with the Supreme Court in mind.

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Does the US Supreme Court Work? | 32 comments (25 topical, 7 editorial, 0 hidden)
Separation of Powers (3.66 / 6) (#4)
by skim123 on Wed Oct 11, 2000 at 06:31:16 PM EST

I think the Founding Fathers did a good job setting up the Supreme Court. Realize that they were trying to balance the power of the government into these three separate branches - executive, judicial, and legislative. The reason court justices are appointed for life is simple... imagine that, say, every five years they had to be reviewed and reappointed by Congress (or the President, or both). Such concerns could, quite arguably, influence their decisions on the bench. If they know the current pres is pro-life, a justice who is up for "re-election" by the pres that year may vote against his legal stance/views on something like Roe v. Wade in hopes of currying the president's support.

The U.S. Supreme court, as it stands now, is sort of judicial oligarchy whose decisions can not be questioned by the legislative or executive branches

Not so. The judicial branch interprets the Constitution... the legislative branch can alter the Constitution (although it needs a fuck-load of votes to do so... 3/4ths if I remember correctly). So, if the Supreme Court were to go off the deep end on interpretting the Constitution, Congress could alter the document itself, making it more explicit so such an interpretation would be impossible.

The structure of the judicial branch implies that the founding fathers believed that the only people who would understand the constitution were elected officials and justices appointed by elected officials. That seems hardly democratic

Well, we're anything but a democracy. This country was setup as a Republic, where a small group of representatives make the decisions, as opposed to all of the citizens en masse.

Does the Supreme Court have a lot of power? Yes, hell yes (hence the word Supreme in the title!). Does it work? I dunno... I think so. I think it is imperative that justices be appointed for life. Also, some court needs to have final say... otherwise we would have literally endless appeals!

Money is in some respects like fire; it is a very excellent servant but a terrible master.
PT Barnum


Re: Separation of Powers (4.50 / 2) (#19)
by _Roadkill on Wed Oct 11, 2000 at 11:33:59 PM EST

You are half right on the part that Congress can alter the Constitution by an amendment, but a fuck-load of votes ain't gonna cut it. You need a double fuck-load: one from Congress, and one from the states.

According to Article V of the U. S. Constitution, there are two phases that an amendment must go through to be added to the Constitution. The first phase can either be:

  1. Passing a bill through Congress that has a 2/3 majority in *each* house, or
  2. 2/3 of the states call a convention that creates the amendment
The former is the usual way that amendment proposals are created. The latter IMO was put in there to give the states the power to change the Constitution in case something really bad happens to the Federal Gov't (I'm thinking like if Congress gets too power hungry, or there is a disaster that wipes out Congress, etc.)

Once a proposed amendment passes the first phase, it has to be ratified by 3/4 of the states, either by majority vote in their respective legislatures, or majority vote by a state convention created specifically for ratifying the amendment. Again, the former is the way its usually done. and the latter is IMO put in there in case something happens to the state gov'ts.

I thing the founding fathers were wise in coming up with this way to change it. A constitution should be set in stone, but not hard enough that it cannot be changed with a majority of voices approving the change.

Amatuers built the Ark, Professionals built the Titanic.

[ Parent ]
Re: Separation of Powers (none / 0) (#25)
by aphrael on Thu Oct 12, 2000 at 06:19:54 PM EST

2/3 of the states call a convention that creates the amendment ... The former is the usual way that amendment proposals are created. The latter IMO was put in there to give the states the power to change the Constitution in case something really bad happens to the Federal Gov't (I'm thinking like if Congress gets too power hungry, or there is a disaster that wipes out Congress, etc.)

Note that by the rules which governed the country under the Articles of Confederation, the process by which the Constitution was adopted was illegal. I've always viewed the constitutional convention clause as a strange way of legitimizing the Constitutional Convention --- it's not legal under existing rules, but it would be legal under the rules we're trying to adopt.



[ Parent ]
Thanks for the good info! (none / 0) (#32)
by skim123 on Sun Oct 15, 2000 at 01:22:42 AM EST

Thanks for the info, it's been too long since my last civics class! :-)

Money is in some respects like fire; it is a very excellent servant but a terrible master.
PT Barnum


[ Parent ]
(4.66 / 9) (#6)
by Mendax Veritas on Wed Oct 11, 2000 at 06:45:07 PM EST

First off, the Court does not "reflect the ideological legacy of previous presidential administrations" in any meaningful sense. A justice appointed by a Republican president does not necessarily tend to cast votes that Republicans like. Any examination of the voting records of the current Court will make this fairly obvious. (For example, Sandra O'Connor was appointed by Reagan, or most conservative post-WW2 president, and yet her votes tend to be fairly centrist on most issues. And, if I recall correctly, Nixon appointed one of the more liberal justices of recent decades, though I forget whether that was Stevens, White, or Marshall.) Additionally, quite a number of Court decisions each year are made unanimously or 8-1, which is hard to explain if one insists on thinking of the justices as "liberals" (appointed by Democrats) and "conservatives" (appointed by Republicans).

You seem to be suggesting that the Supreme Court should be democratically elected, which seems moderately insane to me. The reason that justices are appointed for life, rather than elected for a finite term, is to minimize the influence of politics on the Court. Of course, in recent decades, considerable politics has gone into the confirmation process, but at least justices don't have to tour the country promising all things to all people the way presidential candidates do, and once a justice is confirmed, he can afford to speak his mind honestly without worrying about re-election. Additionally, the voting public of the US has enough trouble making sensible decisions about Presidents and Congresspeople. In contrast, the established system of presidential nomination followed by congressional confirmation has generally produced a pretty high-quality Supreme Court.

If you want to get a more complete, balanced view of the Supreme Court's activity, you might want to subscribe to Cornell Law School's mailing list for Supreme Court decisions. (See here.) For every case the Court decides (but not including ones where they simply turn away the case without comment), you get a brief summary of the majority opinion, and they tell you which justices agreed with the decision, and which didn't. Having subscribed to this list for the last two years, I have learned quite a bit about how the Court works and how the justices think, and my respect for the Court has improved considerably.

Re: (2.50 / 2) (#14)
by aphrael on Wed Oct 11, 2000 at 08:00:30 PM EST

And, if I recall correctly, Nixon appointed one of the more liberal justices of recent decades, though I forget whether that was Stevens, White, or Marshall.)

None of the above --- it was Harry Blackmun (who wrote the Roe v. Wade decision. Stevens was appointed by Ford, White (a conservative) by Kennedy, and Marshall by Johnson.

If you want to get a more complete, balanced view of the Supreme Court's activity, you might want to subscribe to Cornell Law School's mailing list for Supreme Court decisions. (See here.)

Cornell's website gives the full text of decisions as well, as does the supreme court's website.



[
Parent ]
Another Example: Earl Warren (2.00 / 1) (#28)
by brotherhayashi on Fri Oct 13, 2000 at 05:37:44 PM EST

IIRC, Earl Warren, an extremely liberal Chief Justice from the early 1950s to the late 1960s, was appointed by extremely conservative Eisenhower, who later regretted his decision.



[ Parent ]
But that's the way it's SUPPOSED to be (4.37 / 8) (#7)
by sbeitzel on Wed Oct 11, 2000 at 06:47:05 PM EST

Please understand, the American founders had a distrust of the masses, and I can't say I blame them. An individual may be expected to be reasonable and rational, but the bigger a group of humans is the less likely it is to act intelligently. You've seen, I'm sure, the saying about the IQ of a committee.

Yes, the Supreme Court is an oligarchy. It changes slowly. With the exception of the time during Franklin Roosevelt's presidency/reign, it has also been a fairly small group. The small numbers and long period of turnover are counterbalances to the comparatively humongous numbers and short period of turnover in the legislative and executive branches. (Yes, there are Senators who've been in office longer than I've been alive...but not many.)

I think that it's good to have the Supreme Court insulated a bit. They don't rule on every law; that's not their purpose. They are there to make sure that the Congress and the President don't go redefining the U.S. of A. without going through the proper process of constitutional amendment. If we didn't keep them insulated, do you reckon we'd still have drinking fountains for "whites only"? I think so.

It's true that the justices lag the elected officials by a few years. But then, there are age limits on the offices of President and Senator as well, and let's face it: if you're too young to have voted for Reagan, then you're young enough to be the child or perhaps grandchild of whomever we elect next go-round. I was in college when George Bush won against Michael Dukakis, and I remember feeling distinctly unrepresented by a President older than my grandfather. Now, twelve years later, I'm older and I know a lot less. I think the real point of our political system is to allow change, but to allow it slowly. The system can respond to the will of the people, but there are checks in place to make sure it doesn't change overnight into something unrecognizable. And as I age into a fuddy-duddy, I find that more and more comforting.

Re: But that's the way it's SUPPOSED to be (none / 0) (#23)
by ethereal on Thu Oct 12, 2000 at 02:04:24 PM EST

With the exception of the time during Franklin Roosevelt's presidency/reign, it has also been a fairly small group.

It's the same size now that it was after Roosevelt, isn't it? My understanding is that the President can add justices to the court, but cannot remove them. Roosevelt was accused of "court-packing", since he increased the originally 5- or 7- member panel to 9 justices in the hopes that he could gain a majority on the bench and thus defend some of his programs which were being struck down by the Supreme Court. I don't recall that this strategy worked particularly well for him, though.

--

Stand up for your right to not believe: Americans United for Separation of Church and State
[ Parent ]

Re: But that's the way it's SUPPOSED to be (none / 0) (#24)
by aphrael on Thu Oct 12, 2000 at 06:17:58 PM EST

Roosevelt was going to increase the number of justices from 9 to 11. His plan was defeated by the Senate. However, at about the same time that this was going on, the Court dropped the use of the 'substantive due process' doctrine to overturn Congressional regulations (things like minimum wages, overtime laws, etc) that had encountered significant political opposition; this is usually viewed by historians as being directly related to the court-packing plan.



[ Parent ]
Its working as designed (4.33 / 9) (#8)
by funkman on Wed Oct 11, 2000 at 06:47:10 PM EST

Yes the Supreme court has lots of power because they have a lifetime term. But it is a necessary "evil". It allows each justice to not fall victim to politics and influences from special interests or lobbyists. This allows them to focus on whether a law is constitutional or not. But the Supreme Court may not strike down any law. They may only strike down a law when the law is presented as a court case and the case is brought to trial, and that all of the lower courts have tried the case first. What also makes the Supreme Court interesting is when they strike a law down, (I believe) they strike the entire law down. Just not a part of the law but the entire law being questioned. Once a law is struck down, congress can rewrite and pass the law in a toned down manner that the Supreme Court may approve of. (Of course after it goes through all the lower courts first.) Each opinion by the justices will give Congress the guidance on why the law was unconstitutional so they may revise the law accordingly.

But the Supreme court does not have ultimate power. They may be impeached, a constitutional amendment may be passed, and more justice can be added to the courts to balance the power in the court. FDR tried the latter and failed, but it can be done.

What is also beautiful about the court is because of the lifetime term you can get a true mix of conservatives and liberals because the president changes from term to term and not every president gets to choose a new justice. Jimmy Carter never got the luxury of picking a Supreme Court justice.

Yes, but... (4.28 / 7) (#9)
by trhurler on Wed Oct 11, 2000 at 07:01:35 PM EST

that is the whole idea. If you look, you'll see that the Supreme Court makes the "right" choices given a strict interpretation of the Constitution probably 70-95% of the time depending on what period of history you examine. That is not to say that it makes popular choices; often they are highly controversial, but that's what the Constitution is there for: to preserve proper government even in the face of popular resentment of some consequence of that government. And in fact, the Court does make mistakes - sometimes very bad ones. For instance, any business with more than 15 employees is considered to be engaged in interstate commerce, thus making it open to any and all federal regulations. Not only is this not what the interstate commerce clause was intended for, it isn't even compatible with the wording of that clause.

The examples you pick are illuminating: the decision not to fast-track the Microsoft case was not only correct, but it was obviously correct. Antitrust law only allows such a fast track when the government can show to a very high standard of evidence that it is necessary; all the government did in the Microsoft case was whine and beg. The decision regarding the ADA was correct also; if the Court had the proper case at hand, it might well throw the entire law out as the unconstitutional disaster that it is. Far too many people want the law to bend to accomodate "common sense" or "compassion." That is not what law is for, and the very nature of the job of the Supreme Court is why we don't elect the justices; their job CANNOT be a popularity contest if they are to do it properly.

If you consider the interstate commerce clause mistake, both of these cases would never have existed; without that mistake on the part of the Court, neither antitrust law nor the ADA would even exist. I'm sure you'll say that is evidence of the correctness of the decision, since you apparently think the ends justify the means, but those of us who think the law should be an objective set of rules that apply equally to everyone and protect the rights of the people rather than catering to special interest groups think that such things are VERY bad, regardless of the "practical" outcomes.

--
'God dammit, your posts make me hard.' --LilDebbie

Re: Yes, but... (2.00 / 1) (#15)
by aphrael on Wed Oct 11, 2000 at 08:14:00 PM EST

Far too many people want the law to bend to accomodate "common sense" or "compassion." That is not what law is for

I have no problem with laws which accomodate common sense or compassion. What I object to is attempting to use a position whose job is to interpret what is written in such a fashion as to change what is written, which I think a lot of the political arguments surrounding the supreme court are trying to do.

[ Parent ]

Re: Yes, but... (none / 0) (#16)
by aphrael on Wed Oct 11, 2000 at 08:17:13 PM EST

A minor nitpick:

You say: For instance, any business with more than 15 employees is considered to be engaged in interstate commerce, thus making it open to any and all federal regulations. Not only is this not what the interstate commerce clause was intended for, it isn't even compatible with the wording of that clause.

Article I Section 8 Clause 3 of the US Constitution says:[The Congress shall have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

I don't have the grounding in either the federalist papers or in the case where the supreme court changed its interpretation of this clause to argue what the clause was intended for, but I don't see how it is incompatible with the wording per se.



[ Parent ]
Re: Yes, but... (none / 0) (#22)
by trhurler on Thu Oct 12, 2000 at 01:41:38 PM EST

There are two grounds on which current interpretation is incorrect. First of all, the power to regulate interstate commerce is NOT a blanket power to regulate every aspect of companies engaged in it; it is the power to regulate the act of commerce itself, and was intended only to prevent states from erecting trade barriers amongst themselves. Secondly, it is simply not true that every business with more than 15 employees is engaged in interstate commerce of any kind whatsoever.

Harry Browne, the current Libertarian candidate(I don't endorse the party without some reservations, but I do endorse Harry Browne,) when asked if he has a "litmus test" for Supreme Court justices, gave a very, very good answer. He said that he would ask them, "What is the meaning of the words "Congress shall make no law"?" In addition, I would ask them "What is the meaning of the words "interstate commerce?"" (If either of these references is unclear, I strongly suggest reading the Constitution, complete with amendments. It doesn't take very long at all, and it is quite an experience to compare what the Constitution says with what the federal government does today - most of our current bureaucrats and many of our elected officials should be in prison for treason.)


--
'God dammit, your posts make me hard.' --LilDebbie

[ Parent ]
I like it. (3.83 / 6) (#10)
by WinstonSmith on Wed Oct 11, 2000 at 07:01:45 PM EST

Some quotes:

If a law is deemed unconstitutional it is struck dead--the U.S. Congress must creatively figure out a way around it or amend the Constitution.

and

The U.S. Supreme court, as it stands now, is sort of judicial oligarchy whose decisions can not be questioned by the legislative or executive branches.


I think its good that the Supreme Court is the final say on what is constitutional. Otherwise, fundamental questions would go unanswered and go around in circles forever. Also, according to the quotes above, there is a remedy that the Congress can apply -- by re-writing the law or ammending the Constitution.

These aren't normal everyday questions being answered by The Court. These are fundamental questions of constitutional law that are brought up by real cases. Nobody just walks in and says "So, what do you guys think about abortion?". The questions arise out of real cases. That case MUST have an ending. Letting the Congress decide that would never provide that.

Its funny how this comes up. For the first 25 or so years of our country the Supreme Court was seen as the weak branch of government, without even a proper meeting place.

Where the blame really lies ... (4.75 / 8) (#13)
by aphrael on Wed Oct 11, 2000 at 07:57:25 PM EST

I think the problem has more to do with how the press covers, and politicians talk about, the supreme court, than it does with the supreme court per se.

The functional role of any court above the trial level is to do two things: (1) determine what the law is, that is to say, what those words written down over there mean, and (2) determine if the action under consideration was consistent with the determination. This is, and should be, by nature, an apolitical process; the question is not what the law should be, but what it is.

When taken to the constitutional level, this is a convoluted process. (A) what does the constitution mean? (B) What does the law in question mean? (C) Is the law in question consistent with the Constitution? This ends up being a fairly esoteric debate, because of two things: (1) it is understood in legal circles that it would be bad if the answer to questions A and B was constantly changing, so the court must give weight to what it has said in the past in answer to those questions; (2) it is no more true that the average non-lawyer is competent to answer the question "what does this law mean" than it is true that the average non-programmer is competent to answer the question "what does this chunk of code mean?"

The latter point is *extremely* important. The division of legislative/executive/judicial powers in the US is based upon the assumption that the people, through the legislature, decide what the law should be, and the judiciary interprets what the law is. There are two checks on this: someone who clearly is misinterpreting ("I know that says red, but it means blue") can be impeached for doing so, and professional ethics (which are fairly strong among judges) act as a constraint.

Unfortunately, press coverage of the supreme court is often result-oriented, rather than process-oriented. That is to say, when the court strikes down a law, the coverage reports that the law was stricken, but never really analyses *the rationale*. That's a political argument akin to saying: "the programmer said that you can't do [x]" when what is really going on is that you can't do [x] this way.

A case in point: the Supreme Court struck down California's primary election system, which had one ballot with the candidates of multiple parties (you voted for one; the top vote-getter in each party became that party's nominee) as violating the right of party members to free association. The argument was that by requiring members of the republican party to allow members of the socialist party (for example) to help select their nominee forced them to associate with people they didn't want to. The court *strongly hinted* that there were other ways to achieve the same end that wouldn't have constitutional problems. The press in California didn't explain the rationale, or the hints that there were other solutions; it got played up as the supreme court trampling on California's popular election system. (Again, a political argument in response to a technical decision).

What makes this worse is that nobody actually reads the decisions, so nobody has even the beginning of a basis for understanding what's going on ... they just know they don't like the results.



Re: Where the blame really lies ... (5.00 / 1) (#26)
by SEAL on Thu Oct 12, 2000 at 08:44:38 PM EST

The press, or at least those dealing in written media, tend to cover the entire debate, decision, and ramifications. If you go home late at night and see a 5 minute blurb about a Supreme Court decision on the news, then sure, you'll probably just hear the result.

Most of the time when I read an article, though, it explains the issue at hand. Even without reading the legalese, I can get a pretty good idea of why the issue was Constitutionally questionable, and why the Supreme Court ruled the way it did. Most news sources also include a few lines from the dissenting justices, if the vote was split.

Now local politicians are another story. Once a Supreme Court decision gets handed down, such as your example, they'll try to spin it. Of course this has no effect on the law but it may change people's attitudes towards it. That's what politics is all about. But the information is there for those who want it. If you're looking to point the finger, point it at the lazy Americans who want their news spoon-fed to them MTV style.

I think the Supreme Court has been remarkably objective over the years. Most of their decisions were correct, IMO, even though I may not have personally agreed with the law. Their entire job relies on keeping a professional distance from normal politics. Since they are approved by a bi-partisan group, they are somewhat removed from "business as usual" in Washington. Lifelong terms are a GOOD thing because it's the only branch of government that has this. This was intentional since it insulates the justices from special interest groups (i.e. you're not going to lose your job if you make unpopular, but correct decisions).

Best regards,

SEAL

It's only after we've lost everything that we're free to do anything.
[ Parent ]

It's better than the alternative.... (3.25 / 4) (#18)
by Hillgiant on Wed Oct 11, 2000 at 08:39:30 PM EST

I live in Texas, here we elect judges. Let me tell you, there are few things (IMHO) in this world more disgusting than a judge making campain commercials. I DO NOT WANT A JUDGE WITH STRONG CONVICTIONS! Even if I agree with those convictions. Ideally every decision on law in a court of law is based on two things: the constitution and all prior decisions by that court. So, court justices have an even stronger sense of legacy than the president. (Pop-quiz, what was Taft's legacy? Give up? Come on it wasn't that long ago.) When a justice writes a decision, they have to not only write it with the present case in mind, but also justify it to future generations of justices.

-----
"It is impossible to say what I mean." -johnny

That's not the biggest problem (3.00 / 1) (#20)
by Pseudonym on Thu Oct 12, 2000 at 12:53:04 AM EST

A bigger problem (and it's not just true of the US) is the high cost of using the legal system.

Wrong laws affect everyone, rich or poor. But it seems that only those rich enough to afford the right kind of barrister can challenge a law which affects them adversely. You have to really need to change it. You need to expect to lose a lot of money, and take a lot of time out from your employment to get an unconstitutional law struck down. To make it worse, in practice you need to go through a string of lower courts first before the hjghest court in your country will even hear it.

The disparity is most noticable in the US where big money runs the shadow government. It's very easy for wrong laws to get in, and said big money has no problem with spending big money defending it. In countries with more regulation (e.g. most of Europe and Australia) this is still not so big a problem. Here in Australian a bigger problem is that the government simply makes stupid decisions and our constitution, while very big on what government is and what it's allowed to do, is not very big on "we the people", so laws are rarely found to be unconstitutional.


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Who said the Supreme Court is most powerful? (4.00 / 2) (#21)
by PresJPolk on Thu Oct 12, 2000 at 08:10:56 AM EST

There's nothing in the Constitution that says the Supreme Court is the final interpreter of the Constitution. If the Executive and Legislative branches happen to disagree with the court, then there is nothing stopping them from ignoring it.

That's the way it should be. To give one branch final say is to throw out the concept of separation of powers. The US government would be little better than that of Iran, where the elected leaders are subordinate to the unelected theocracy.

Supreme Court Justices have life tenure to keep them free of political pressures. However, making their power dependent on the respect of the other branches keeps it from being out of control. Franklin Roosevelt gradually pressured the court into agreeing with him, and Andrew Jackson denied the court's authority. After the Marshall court ruled against Georgia and in favor of the Cherokee indians, Jackson refused to support the ruling, saying "John Marshall has made his decision. Now let him enforce it."

The Supreme Court did! (none / 0) (#27)
by brotherhayashi on Fri Oct 13, 2000 at 05:34:56 PM EST

In Marbury vs. Madison during the Jefferson administration, the Supreme Court established that it had the power of judicial review: it could strike down federal laws, namely, part of the Judiciary Act of 1789 that allowed Marbury to ask the court for a writ of mandamus against Secretary of State James Madison.

In Fletcher vs. Peck around the same time, the court established that it had the power to strike down state laws as well, namely a Georgia state legislature act that nullified the sale of 35 million acres in the Yazoo valley to land speculators.

So, the Supreme Court is the final authority on the meaning of the Constitution, because it says so. How's that for circular logic?



[ Parent ]
Marbury v. Madison (none / 0) (#31)
by PresJPolk on Sat Oct 14, 2000 at 05:13:22 AM EST

Why don't you look up how many years and years it took after Marbury v. Madison, for the Supreme Court to dare strike down another Federal law.

And also think about this: If Marshall had upheld Marbury's appointment, do you really think that the Jefferson administration would have gone along with it?

Marbury v. Madison established the new political status quo more than it established judicial review.

[ Parent ]
Impeachment (3.00 / 1) (#29)
by brotherhayashi on Fri Oct 13, 2000 at 05:43:36 PM EST

Supreme Court justices aren't stuck on the bench until they retire or die off; they can always be impeached. Also, the Senate confirmation process can be a nightmare for extremely liberal or conservative potential justices; witness the example of Robert Bork.

Also, as someone else has said, the Constitution can and has been ammended to reverse Supreme Court decisions. The 11th, 14th, and 16th ammendments did just that.



Who is the final arbitar of Constitutionality? (3.00 / 1) (#30)
by Louis_Wu on Sat Oct 14, 2000 at 01:07:55 AM EST

The structure of the judicial branch implies that the founding fathers believed that the only people who would understand the constitution were elected officials and justices appointed by elected officials.
I don't think so. The Supreme Court may be the final arbitars of which laws will stand or fall, but I don't think that it was assumed to be the only place where understanding of the Constitution resided.

While I haven't finished the Federalist Papers, the text of the Constitution itself seems to say that it is written to be read by everyone, and that everyone can judge for themselves whether certain laws are consitutional. The populace cannot directly change federal law, but it can vote in new representatives who will.

I think that this sort of long term check is the real limit on the power of the Supreme Court. No matter what branch of government is under consideration, that branch wants more power. If the total amount of power is limited, then the branches must fight each other for each little bit of power. But if the total amount of power that the government can have is NOT limited, then each branch merely needs to work to increase its own power-base, while paying only limited attention to the other branches.

If the Supreme Court were the final arbitar of Constitutionality, then government would grow hideously out of control. But if the people can elect new representatives, the power of government will rest in the people, in the long run. The new senators will be careful about who they confirm to the Supreme Court, the new President will only appoint judges she thinks the people and the senators will approve of, and the representatives and senators will not submit or pass laws which are seen by the people as unconstitutional. The only concern I see is if the people come to depend upon the government.

Government has grown hideously out of control, and people have come to depend upon government. We have problems. But we have the vote, the power to change our government, slowly, but surely. (Leave Shirley out of this. ;)

Louis_Wu
"The power to tax is the power to destroy."
John Marshal, first Chief Justice of the U.S. Supreme Court

Does the US Supreme Court Work? | 32 comments (25 topical, 7 editorial, 0 hidden)
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