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Old 05-24-2017, 07:56 AM
Tom Terrific Tom Terrific is offline
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Limits on Supreme Court's powers

I have been reading the GQ thread about judicial review and it reminded me of a longheld question. Just who has the power to rein in the supreme court? Liberals and conservatives alike over the years have complained about an activist court. Well, who can overrule the edicts of the supremes?

I really don't care about any actual cases, I am looking for legislative or executive powers that could come to bear. Would it take a constitutional amendment? Personally I think that might be the answer.
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Old 05-24-2017, 08:08 AM
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Originally Posted by Tom Terrific View Post
Well, who can overrule the edicts of the supremes?
There are several checks and balances on the Supremes, but there's nothing in place to directly overrule a SC decision. They are appointed by the President and confirmed by the Senate, so there's your first check. If the court rules that a law is unconstitutional, then new laws can be written that conform, or constitutional amendments can be passed via congress and the states. Finally, the House and Senate always have the ability to impeach individual justices for pretty much any reason they choose.
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Old 05-24-2017, 08:17 AM
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Congress always has the upper hand; a majority of the House and two-thirds of the Senate may remove any federal judge. Acting in concert with the President, they may replace the entire court in a week.

Two-thirds of each House and three-fourths of the state legislatures can also nullify Court decisions by means of amendment to the Constitution. This is, to take one example, how we have a national income tax. Article 1, Section 2, Clause 3 required that direct taxes be apportioned (assessed in ratio to states' population), and an income tax was clearly not. Congress had passed an income tax, which the Supreme Court struck down as violative of the Constitution. (Pollock v. Farmers' Loan & Trust).

In response, the Congress passed and the states ratified the Sixteenth Amendment, which provided that Congress had the power to lay and collect taxes on incomes, from whatever source they came, without apportionment among the states.
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Old 05-24-2017, 08:26 AM
Chronos Chronos is online now
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A lot of what the court decides isn't based on the Constitution, just on ordinary laws passed by Congress. If the court decides that something isn't consistent with the law, and Congress doesn't like that, they can just pass a new law to make it consistent
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Old 05-24-2017, 08:31 AM
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A lot of what the court decides isn't based on the Constitution, just on ordinary laws passed by Congress. If the court decides that something isn't consistent with the law, and Congress doesn't like that, they can just pass a new law to make it consistent
Correct. To take one recent high-profile example, the Hobby Lobby decision rested on the federal Religious Freedom Restoration Act, not the First Amendment, and indeed would have produced a different result under existing First Amendment precedent. So to "overturn," the Hobby Lobby decision would require only a new law passed by Congress.
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Old 05-24-2017, 08:33 AM
John Mace John Mace is online now
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Originally Posted by Chronos View Post
A lot of what the court decides isn't based on the Constitution, just on ordinary laws passed by Congress. If the court decides that something isn't consistent with the law, and Congress doesn't like that, they can just pass a new law to make it consistent
That's a good point, but I'm not sure "consistent" is the best word to use. The Court interprets the law a certain way, and if Congress thinks that interpreting is wrong, they can pass a new low. For example, if Congress passes a law that says: "Made in American means that at least 50% of the parts in a gadget are sourced from the United States". But then the Courts say "parts" doesn't apply to sub-assemblies. That is, all the parts might come from the US, but the sub-assembly is put together in Mexico. Congress can then change the law to specify that "subassemblies" count as a "part".

Last edited by John Mace; 05-24-2017 at 08:33 AM.
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Old 05-24-2017, 08:36 AM
watchwolf49 watchwolf49 is offline
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The courts cannot write laws ... that's a pretty serious limit on their power ...

I don't know if this is an explicit rules or if it's just habit ... but courts do go into great detail about how they judge a case ... so they will specifically say which part of the law is unconstitutional and exact why ... and I believe there's a dep't in our State government who job is to notify the legislature about these issues ...

Last edited by watchwolf49; 05-24-2017 at 08:40 AM.
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Old 05-24-2017, 08:42 AM
Chronos Chronos is online now
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Quote:
Quoth John Mace:

The Court interprets the law a certain way, and if Congress thinks that interpreting is wrong, they can pass a new low.
Oh, Congress passes a new low quite frequently.
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Old 05-24-2017, 08:45 AM
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Oh, Congress passes a new low quite frequently.
Ouch.
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Old 05-24-2017, 08:50 AM
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Congress can do something called jurisdiction stripping, which is less cool than it sounds. It means removing the supreme court from the appeals process of a given law. It can only do this in cases that do not involve a state and another state or foreign country.
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Old 05-24-2017, 08:59 AM
Tom Terrific Tom Terrific is offline
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So, when I read that the president or congress has been stymied by the Supreme Court, they normally have a recourse that they can use to get their way. It may be too difficult to do or politically imprudent, but there almost always is another way.
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Old 05-24-2017, 09:55 AM
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So, when I read that the president or congress has been stymied by the Supreme Court, they normally have a recourse that they can use to get their way. It may be too difficult to do or politically imprudent, but there almost always is another way.
The President and Congress acting together? Absolutely.
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Old 05-24-2017, 09:58 AM
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Congress can do something called jurisdiction stripping, which is less cool than it sounds.
Yeah, Jim's bachelor party turned out a lot more boring than expected. I'll never make that mistake again!
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Old 05-24-2017, 12:33 PM
Really Not All That Bright Really Not All That Bright is online now
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In addition to the legal mechanisms that have been discussed already, Congress and the executive can essentially ignore SCOTUS if they want to. The court has very little enforcement power.

There's also a more important legal limitation on SCOTUS' power - itself. The court self-imposes numerous restrictions, some of which are derived from the Constitution (e.g., standing, deference to political branches) and some of which are mostly made up.

Last edited by Really Not All That Bright; 05-24-2017 at 12:34 PM.
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Old 05-24-2017, 02:28 PM
John Mace John Mace is online now
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Is there anything preventing the court from acting sua sponte if the court wishes? I mean, anything other than the court itself not wanting to.
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Old 05-24-2017, 02:48 PM
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Originally Posted by watchwolf49 View Post
The courts cannot write laws ... that's a pretty serious limit on their power ...
Well they can, as in the cases of Roe v. Wade and Miranda. The congress can just write new laws that override those too.
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Old 05-24-2017, 02:54 PM
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There's also a more important legal limitation on SCOTUS' power - itself. The court self-imposes numerous restrictions, some of which are derived from the Constitution (e.g., standing, deference to political branches) and some of which are mostly made up.
Like stare decisis which is huge in SCOTUS rulings except when they choose to ignore it.
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Old 05-24-2017, 04:07 PM
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There's one significant limitation on the courts that we haven't discussed.

The courts can't originate a case. And without a case, there is no ruling.

The president can violate the Constitution, Congress can pass a law which is clearly unconstitutional, individual states could literally go to war with each other. But if no one were to contest the action in the proper federal or state court, a judge wouldn't be able to rule on the law or the action.

Last edited by kunilou; 05-24-2017 at 04:08 PM.
  #19  
Old 05-24-2017, 04:40 PM
DSYoungEsq DSYoungEsq is offline
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Is there anything preventing the court from acting sua sponte if the court wishes? I mean, anything other than the court itself not wanting to.
The Supreme Court cannot act sua sponte in the sense of issuing an opinion when there is no case or controversy already in front of it.
Quote:
Originally Posted by United States Constitution, Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
This precludes advisory opinions.
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Old 05-24-2017, 05:27 PM
Hari Seldon Hari Seldon is offline
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One other thing they can do is enlarge the court. Roosevelt tried that and that was a bridge too far for congress. But suddenly the court decided that maybe the New Deal was constitutional after all.
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Old 05-25-2017, 08:23 AM
Really Not All That Bright Really Not All That Bright is online now
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The Supreme Court cannot act sua sponte in the sense of issuing an opinion when there is no case or controversy already in front of it. This precludes advisory opinions.
Well, according to SCOTUS it does. But there's really nothing in the text of the clause which prohibits advisory opinions; in fact, use of the term "controversy" suggests that the framers were distinguishing between existing cases and potential ones.
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Old 05-25-2017, 08:24 AM
igor frankensteen igor frankensteen is offline
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I keep hearing or reading people claiming that the Supreme Court can create laws, and that's just plain false.

The complaint about "activist courts" and "activist judges" always come from people who simply don't like that the court ruled against them, AND made clear WHY they ruled against them, but they disagree with the decision.

The most common and basic way this shows up, is where someone LIKES that the Court interpreted things like the General Welfare parts of the Constitution, when it means it's cool to build federally funded interstate highways, and give businesses a cheaper way to interact. But those same people blanch when the exact same clauses are used to say that it's also okay for the Federal government to help people who they DON'T happen to like, or to stop them from persecuting people who they don't like.
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Old 05-25-2017, 09:03 AM
TriPolar TriPolar is offline
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Originally Posted by igor frankensteen View Post
I keep hearing or reading people claiming that the Supreme Court can create laws, and that's just plain false.

The complaint about "activist courts" and "activist judges" always come from people who simply don't like that the court ruled against them, AND made clear WHY they ruled against them, but they disagree with the decision.
Once again, the court can effectively create law as in the case of requiring Miranda warnings or the trimester framework for abortions. It's not the same as legislating but it does effectively create new laws by establishing processes and procedures not found elsewhere.
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Old 05-25-2017, 10:33 AM
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Originally Posted by puddleglum View Post
Congress can do something called jurisdiction stripping, which is less cool than it sounds. It means removing the supreme court from the appeals process of a given law. It can only do this in cases that do not involve a state and another state or foreign country.
Has this ever happened?

I can't imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn't just rule it un-Constitutional.

Maybe I will start a GD thread to discuss.

Regards,
Shodan
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Old 05-25-2017, 11:12 AM
Really Not All That Bright Really Not All That Bright is online now
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Has this ever happened?

I can't imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn't just rule it un-Constitutional.

Maybe I will start a GD thread to discuss.

Regards,
Shodan
Happens frequently. What doesn't happen - because it is likely prohibited by the Due Process Clause - is Congress insulating its actions from judicial review entirely. What it normally does instead is vest judicial authority in an executive branch tribunal - an administrative hearing office - with appeal to the regular judiciary available at some point. For example, Social Security disability appeals are heard by administrative law judges, who are not Article III judges but employees of the executive branch.
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Old 05-25-2017, 11:23 AM
Acsenray Acsenray is offline
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Limits on Supreme Court's powers

Quote:
Originally Posted by igor frankensteen View Post
I keep hearing or reading people claiming that the Supreme Court can create laws, and that's just plain false.


Quote:
Originally Posted by watchwolf49 View Post
The courts cannot write laws ... that's a pretty serious limit on their power ...

The sentence "The court can/cannot write/create laws" is pretty much meaningless in our common law system and leads to endless misunderstanding.

Yes, it's true for certain definitions of "create" and "law," but if you're talking about the real scope of power of a court in out system, those definitions are not useful.

A court cannot "enact statutes." That's what the legislature gets to do.

A court cannot promulgate regulations, initiate prosecutions, or otherwise exercise executive power.

But courts in our system "make law" all the time. They have to. Our legal and governmental system would just shut down if they didn't.

The entire common law system is based on the assumption of judges making law.

Last edited by Acsenray; 05-25-2017 at 11:23 AM.
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Old 05-25-2017, 11:44 AM
Fotheringay-Phipps Fotheringay-Phipps is online now
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Happens frequently. What doesn't happen - because it is likely prohibited by the Due Process Clause - is Congress insulating its actions from judicial review entirely. What it normally does instead is vest judicial authority in an executive branch tribunal - an administrative hearing office - with appeal to the regular judiciary available at some point. For example, Social Security disability appeals are heard by administrative law judges, who are not Article III judges but employees of the executive branch.
This seems to be conflating two separate concepts.

The first concept you raise is "Congress insulating its actions from judicial review". You say they can't do this "entirely", implying that they can insulate their actions from review by the SC specifically. I understood puddleglum to be saying something along these lines.

SS appeals being heard by ALJs has - to my understanding - nothing to do with this. It may well be that you can't generally appeal a ruling by an ALJ to the SC. But if you were challenging the ruling based on a challenge to the SS law itself, you could most definitely go to the ordinary courts, culminating in the SC. So the Congress has not "insulated its actions from judicial review". The rulings of a guy who rejected the initial SS application may have been insulated from judicial review, unless the ruling conflicts with some other law, but that's not the same as the law itself being insulated from judicial review.
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Old 05-25-2017, 01:47 PM
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Previous thread on insulating laws from judicial review:
What does this provision of the US Constitution mean?
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Old 05-25-2017, 02:47 PM
DSYoungEsq DSYoungEsq is offline
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Originally Posted by Really Not All That Bright View Post
Well, according to SCOTUS it does. But there's really nothing in the text of the clause which prohibits advisory opinions; in fact, use of the term "controversy" suggests that the framers were distinguishing between existing cases and potential ones.
On the contrary, "controversy" is a MORE limited term, as it is only applicable to actions filed in civil matters. I am aware of no contemporary indication that the clause in question ever meant "controversy" to include the possibility of hypothetical conflicts. Are you?
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Old 05-25-2017, 02:52 PM
DSYoungEsq DSYoungEsq is offline
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Has this ever happened?

I can't imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn't just rule it un-Constitutional.

Maybe I will start a GD thread to discuss.

Regards,
Shodan
Allow me to introduce to you the case of Ex parte McCardle.

Allow me to acquaint you with a famous quote by Justice Felix Frankfurter:
Quote:
Originally Posted by National Insurance Co. v. Tidewater Co., 337 U.S. 582, 655 (1949)
Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred.
Yeah, it happens.

Last edited by DSYoungEsq; 05-25-2017 at 02:52 PM. Reason: Closed tag
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Old 05-25-2017, 03:01 PM
Shodan Shodan is offline
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Herewith a thread in GD to discuss.


Oyez, oyez, oyez, God save the United States and this honorable messageboard. Let all who want to debate/nitpick/make jokes draw near and be heard.

Regards,
The Honorable Shodan, LL Bean, BYOB, LS/MFT
  #32  
Old 05-26-2017, 09:43 AM
Dana Scully Dana Scully is offline
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Wouldn't it take a Constitutional amendment?
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Old 05-26-2017, 10:35 AM
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Originally Posted by DSYoungEsq View Post
Allow me to introduce to you the case of Ex parte McCardle.

Allow me to acquaint you with a famous quote by Justice Felix Frankfurter:

Yeah, it happens.
On the other hand, the result of taking appellate jurisdiction away from the Supreme Court would not be that Acts of Congress would be immune from judicial review; rather, it would mean that judicial review would still take place but end at a lower level of the hierarchy of courts (U.S. District Courts or Courts of Appeal). These could still strike down an Act of Congress as unconstitutional. The consequences would be nasty: A risk of inconcistent application of the law across the country - the same statute could be considered valid in some judicial districts but not in others. The job of the Supreme Court is to prevent precisely such things from happening (at least in the long run - they do in the short run, as long as the Supreme Court has not yet ruled on an issue).

And the second consequence, related to the first one: the probability rises that a controversial statute is found unconstitutional by some court somewhere. Even a hypothetical rogue Congress intent on abusing its powers to shield its statutes from judicial review could find these consequences so unappealing (pun intended) that it would shy away from taking the Supreme Court's appellate jurisdiction away.
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  #34  
Old 05-26-2017, 02:53 PM
DSYoungEsq DSYoungEsq is offline
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Actually, that's not necessary, either. Congress doesn't have to create a judicial appeals process. It could easily create a process which limits you to the result you get in the trial court. It could then strip the trial court of the ability to determine the constitutionality of statutes.

Of course, at some point in all this, the system probably breaks down. There's a good reason none of this has happened, even in the most hyper-partisan political atmospheres.
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Old 05-26-2017, 03:22 PM
Elendil's Heir Elendil's Heir is offline
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Here's Wiki on jurisdiction stripping, including five notable recent examples: https://en.wikipedia.org/wiki/Jurisdiction_stripping

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Originally Posted by Hari Seldon View Post
One other thing they can do is enlarge the court. Roosevelt tried that and that was a bridge too far for congress. But suddenly the court decided that maybe the New Deal was constitutional after all.
Congress can also shrink the size of the Supreme Court; the number of justices is set by statute, not by the Constitution. When the Radical Republican-dominated Congress didn't want President Andrew Johnson (with whom it was fighting on Reconstruction) appointing anyone to the court, it simply reduced the size of the court by attrition when several justices died or retired during his term. When U.S. Grant took office in 1869, Congress increased the size of the court again, and it's remained at nine (the Chief Justice and eight Associate Justices) ever since.
  #36  
Old 05-26-2017, 03:38 PM
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Actually, that's not necessary, either. Congress doesn't have to create a judicial appeals process. It could easily create a process which limits you to the result you get in the trial court. It could then strip the trial court of the ability to determine the constitutionality of statutes.
I doubt that would work. All the case law on the power of the judiciary (including courts below the Supreme Court) to scrutinise statutes for constitutionality would remain intact. I would presume that this case law woulde continue to be regarded as good precedents, since it was derived directly from the constitution.
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Old 05-27-2017, 12:07 AM
Elendil's Heir Elendil's Heir is offline
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There is also caselaw that every litigant is entitled to at least one level of appellate review. SCOTUS picks its own cases, by and large, and hears and rules upon only a tiny fraction of all the cases that are filed with it. But the U.S. courts of appeals are open to all.
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Old 05-27-2017, 07:24 AM
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IANAL - but as I understand it, the constitutionality of a law can't be blocked from being disputed in the Supreme Court. So presumably, whatever law congress passes limiting appeal jurisdiction can be appealed on those grounds.

However - Congress does have the general right to set who can hear appeals, and once the issue of constitutionality is settled once in the SCOTUS, then all further appeals would be moot, unless someone comes up with a novel argument why the law would be unconstitutional.

As Schnitte mentions - I seem to recall one of your constitutional rights is the right to due process of law. If SCOTUS has defined due process of law as including the basic fairness of the option of appeal (review), which I seem to recall is current law, then deliberately blocking any appeal at all would be unconstitutional.

Last edited by md2000; 05-27-2017 at 07:25 AM.
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Old 05-27-2017, 12:50 PM
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Originally Posted by Elendil's Heir View Post
There is also caselaw that every litigant is entitled to at least one level of appellate review. SCOTUS picks its own cases, by and large, and hears and rules upon only a tiny fraction of all the cases that are filed with it. But the U.S. courts of appeals are open to all.
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IANAL - but as I understand it, the constitutionality of a law can't be blocked from being disputed in the Supreme Court. So presumably, whatever law congress passes limiting appeal jurisdiction can be appealed on those grounds.

However - Congress does have the general right to set who can hear appeals, and once the issue of constitutionality is settled once in the SCOTUS, then all further appeals would be moot, unless someone comes up with a novel argument why the law would be unconstitutional.

As Schnitte mentions - I seem to recall one of your constitutional rights is the right to due process of law. If SCOTUS has defined due process of law as including the basic fairness of the option of appeal (review), which I seem to recall is current law, then deliberately blocking any appeal at all would be unconstitutional.
It would help if either or both of you actually cited precedent (cases) supporting your assertions.

Here is an article from 2013 which argues for finding a right of appeal as a part of due process. In that article, the author notes that the Supreme Court has never held that there is a right of appeal as a part of basic fairness (due process). Indeed, it has more than once held that there is no right to an appeal.

The Right to Appeal
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Old 05-27-2017, 07:47 PM
Tom Tildrum Tom Tildrum is offline
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Originally Posted by DSYoungEsq View Post
In that article, the author notes that the Supreme Court has never held that there is a right of appeal as a part of basic fairness (due process). Indeed, it has more than once held that there is no right to an appeal.
There is always a right to petition the Supreme Court for discretionary review of constitutional issues via cert., however, including directly from the trial court if no appeal is available. Thompson v. City of Louisville, 362 U.S. 199 (1960).
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Old 05-27-2017, 08:33 PM
DSYoungEsq DSYoungEsq is offline
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There is always a right to petition the Supreme Court for discretionary review of constitutional issues via cert., however, including directly from the trial court if no appeal is available. Thompson v. City of Louisville, 362 U.S. 199 (1960).
No. The opinion by the Supreme Court of the United States in Thompson did not address this question. It is simply a case where certiorari was filed despite there being no state appellate process of which the petitioner could first avail himself. But no one argued that he couldn't file for certiorari, and thus we do not know if the Court would hold that certiorari must be allowed by Court rule or federal statute.

See the opinion in Thompson v. City of Louisville.
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Old 05-27-2017, 10:18 PM
Elendil's Heir Elendil's Heir is offline
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There is also caselaw that every litigant is entitled to at least one level of appellate review. SCOTUS picks its own cases, by and large, and hears and rules upon only a tiny fraction of all the cases that are filed with it. But the U.S. courts of appeals are open to all.
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Originally Posted by DSYoungEsq View Post
It would help if either or both of you actually cited precedent (cases) supporting your assertions....
McKane v. Durston (1894), 153 U.S. 684. State courts have the right to grant appellate review at their discretion.

Abney v. United States (1977), 431 U.S. 651, 656. The right to appeal in a criminal case is established by statute.

Halbert v. Michigan (2005), 125 S.Ct. 2582. A defendant has the right to appointed counsel in order to pursue leave to appeal from a guilty or no contest plea.

State v. Butts (1996), 112 Ohio App. 3d 683. Following a guilty verdict, the defendant agreed not to appeal in exchange for dismissal of a specification alleging a prior aggravated felony conviction. The right to appeal may be voluntarily waived.

State v. Ashworth
(1999), 85 Ohio St. 3d 56, 64. "...[A] defendant cannot waive this court's review of his death sentence, though he can waive review of his conviction."
  #43  
Old 05-27-2017, 10:24 PM
Elendil's Heir Elendil's Heir is offline
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And see the opening paragraph and citations here: http://digitalcommons.law.yale.edu/c...ext=fss_papers
  #44  
Old 05-28-2017, 03:41 AM
Schnitte Schnitte is offline
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Quote:
Originally Posted by DSYoungEsq View Post
It would help if either or both of you actually cited precedent (cases) supporting your assertions.
Marbury v Madison itself is a precedent supporting the claim I made before. I don't find anything in it which suggests that only the Supreme Court has the power to scrutinise statutes for constitutionality and strike them down if found unconstitutional; it assigns that function to the judiciary in general. And the language of the case makes it very clear that this function is derived directly from the constitution.

Conclusion? If Congress took away appellate jurisdiction from the Supreme Court, the lower courts would still continue to exercise judicial review over statutes for constitutionality. Nothing short of a constitutional amendment could abolish that.
  #45  
Old 05-28-2017, 10:34 AM
DesertDog DesertDog is online now
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Quote:
Originally Posted by Really Not All That Bright View Post
In addition to the legal mechanisms that have been discussed already, Congress and the executive can essentially ignore SCOTUS if they want to. The court has very little enforcement power.
US Marshals, while part of the executive branch, work for the judicial branch.
Quote:
Originally Posted by wiki
The Marshals Service is attached to the Judicial branch of government, and is the enforcement arm of the federal courts.
While they are chiefly used for the transport of federal prisoners and apprehension of federal fugitives (like this documentary) are there any regulations preventing SCOTUS or the lower federal courts from using them to enforce their decisions?
  #46  
Old 05-28-2017, 02:32 PM
igor frankensteen igor frankensteen is offline
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Once again, the court can effectively create law as in the case of requiring Miranda warnings or the trimester framework for abortions. It's not the same as legislating but it does effectively create new laws by establishing processes and procedures not found elsewhere.
No. I realize that it is a subtle distinction, and a difficult one to understand without an actual effort, but the court did NOT write law in cases such as Miranda v. Arizona. What they did, was they declared that the Constitution ALREADY REQUIRED that certain things be done. That is not at all the same as creating a new law.
  #47  
Old 05-28-2017, 04:43 PM
Elendil's Heir Elendil's Heir is offline
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SCOTUS even has its own police force, but I've never heard of them being used to enforce the judgments of the court. it's just too small a group of officers for that, and it's not their job.

https://en.wikipedia.org/wiki/Supreme_Court_Police
  #48  
Old 05-28-2017, 04:45 PM
aldiboronti aldiboronti is offline
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Quote:
Originally Posted by Tom Terrific View Post
So, when I read that the president or congress has been stymied by the Supreme Court, they normally have a recourse that they can use to get their way. It may be too difficult to do or politically imprudent, but there almost always is another way.
Quote:
Originally Posted by Bricker View Post
The President and Congress acting together? Absolutely.
Does this imply that the President and Congress, acting independently of each other, do not have such a recourse? I'm thinking of course of the current President's attempts to bar immigration from certain countries. If SCOTUS blocks him for instance is Trump powerless without Congress to do anything about it?

Last edited by aldiboronti; 05-28-2017 at 04:45 PM.
  #49  
Old 05-28-2017, 11:44 PM
Tom Tildrum Tom Tildrum is offline
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Quote:
Originally Posted by DSYoungEsq View Post
No. The opinion by the Supreme Court of the United States in Thompson did not address this question. It is simply a case where certiorari was filed despite there being no state appellate process of which the petitioner could first avail himself. But no one argued that he couldn't file for certiorari, and thus we do not know if the Court would hold that certiorari must be allowed by Court rule or federal statute.

See the opinion in Thompson v. City of Louisville.
Respectfully, I think you're misreading Thompson. The Court expressly stated that the basis for cert. was the existence of a constitutional issue. Nothing more, end of story. And that's my point -- the existence of a constitutional question is, in and of itself, a sufficient basis for Supreme Court review. The posture and procedural history thus don't matter.

You're postulating that there might be a future case in which different arguments would cause the Court to add additional criteria to the availability of cert., but it's always possible that a future case will change the law, and that doesn't stop us from treating the Court's current construction of the law as good law.

As I see it, after Thompson (and Cooper), the burden is now on you. Show us case law or any other authority saying that there can exist a constitutional question that the Supreme Court cannot resolve if it chooses.
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