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Old 06-01-2019, 08:27 AM
Aeschines is offline
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Why not just have Congress vote on 5-4 Supreme Court splits?


Liberal here. I think the Supreme Court is pretty much discredited garbage as an institution at this point, at least insofar as it is the court that decides, often in arbitrary ways, what the law of the US is. The right hates it, the left hates it, and I can't say either side is wrong.

Here's the thing: anytime the SC spits 5-4 on an issue, it is nothing less, nothing more than a legislature of 9 people. One side has a legal argument, and so does the other.

Thus, I ask: Why not just have Congress vote on which to keep? Isn't that more democratic? Whichever side it picks, there will be a neatly written legal argument in its favor.

Now, personally, I think the SC should be abolished and we should look for a truly democratic way of deciding on policy, but our government as a whole is as this point too dysfunctional to get another done. But for starters, wouldn't the above be a good idea? Why or why not?

Thanks!
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Old 06-01-2019, 08:36 AM
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Because I don’t want the likes of Louis Ghomert, Duncan Hunter, Devin Nunes, Steve King, etc. overturning a ruling in which the “liberal” side won 5-4. I’m sure conservatives wouldn’t want a 5-4 overturn of Roe vs Wade to be subsequently overturned by Nancy Pelosi and AOC, even if I think that would be the correct result. It would basically be one step on the way toward making tyranny of the majority the law of the land.
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Old 06-01-2019, 09:18 AM
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Because I don’t want the likes of Louis Ghomert, Duncan Hunter, Devin Nunes, Steve King, etc. overturning a ruling in which the “liberal” side won 5-4. I’m sure conservatives wouldn’t want a 5-4 overturn of Roe vs Wade to be subsequently overturned by Nancy Pelosi and AOC, even if I think that would be the correct result. It would basically be one step on the way toward making tyranny of the majority the law of the land.
To me that sounds like you're saying that we should outsource democracy to this 9-person legislature because we can't trust our 400-something-person legislature.

And how is a 5-4 split not a "tyranny of the majority" anyway?

We've gotten to the point in the US where neither side wants to lose so we're making due with complete stagnation. Meanwhile, any real move forward or backward is decided by the SC. It ain't a good system.
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Old 06-01-2019, 09:20 AM
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Because it would be a total violation of the principle of separation of powers.

The politicalization of the process of appointing the Supremes, which has lead to all these 5-4's, has already gone way too far in that direction. We can't fix that problem by making it worse.
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Old 06-01-2019, 09:23 AM
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Liberal here. I think the Supreme Court is pretty much discredited garbage as an institution at this point, at least insofar as it is the court that decides, often in arbitrary ways, what the law of the US is. The right hates it, the left hates it, and I can't say either side is wrong.

Here's the thing: anytime the SC spits 5-4 on an issue, it is nothing less, nothing more than a legislature of 9 people. One side has a legal argument, and so does the other.

Thus, I ask: Why not just have Congress vote on which to keep? Isn't that more democratic? Whichever side it picks, there will be a neatly written legal argument in its favor.

Now, personally, I think the SC should be abolished and we should look for a truly democratic way of deciding on policy, but our government as a whole is as this point too dysfunctional to get another done. But for starters, wouldn't the above be a good idea? Why or why not?

Thanks!
So you are saying that you believe in close cases the foxes should get to control what happens to the hens?

From a more legalistic view, your proposal seems to fail to comprehend what it is that is being decided in these 5-4 votes. It also makes no differentiation when the vote is on a case coming to the Court regarding some state action, as opposed to some federal action. Why should the Congress get to say whether what California or Kansas does is a violation of the Constitution? And what happens if, like now, Congress is split between one house that is controlled by one party and the other house by the other party?

I mean, seriously, let's actually think this one through...
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Old 06-01-2019, 09:27 AM
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.. But for starters, wouldn't the above be a good idea? Why or why not?

Thanks!
No, because the senate is run by a bunch of republicans with no respect for the law, the constitution, or basic human dignity.

Last edited by bobot; 06-01-2019 at 09:28 AM. Reason: space
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Old 06-01-2019, 09:56 AM
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The SCOTUS comes to a majority decision 5-4 and it is somehow invalid? They do end up with ties sometimes, I can understand that a tie-breaker of some kind would make sense. What reason is there to turn to the Congress or anyone else when there is a decision?
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Old 06-01-2019, 09:59 AM
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No, because the senate is run by a bunch of republicans with no respect for the law, the constitution, or basic human dignity.
I agree with you. We in essence don't have a functioning government any more.
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Old 06-01-2019, 10:01 AM
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The SCOTUS comes to a majority decision 5-4 and it is somehow invalid? They do end up with ties sometimes, I can understand that a tie-breaker of some kind would make sense. What reason is there to turn to the Congress or anyone else when there is a decision?
I get what you're saying, but why should SCOTUS *vote* in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn't. In the case of such a vote, the court is not acting as a court but as a legislature.
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Old 06-01-2019, 10:11 AM
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I get what you're saying, but why should SCOTUS *vote* in the first place.
Because that's the role of the judiciary. What makes you think there is or should be a clear path forward with respect to the law? It's never been that way.
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Old 06-01-2019, 10:11 AM
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I get what you're saying, but why should SCOTUS *vote* in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn't. In the case of such a vote, the court is not acting as a court but as a legislature.
So why have more than one justice? Or why does just a 5-4 split require another body to make the decision? Why is an 8-1 split any different?

We need the court, faults and all, because the congress doesn't do their job in the first place.

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Old 06-01-2019, 10:49 AM
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So why have more than one justice? Or why does just a 5-4 split require another body to make the decision? Why is an 8-1 split any different?

We need the court, faults and all, because the congress doesn't do their job in the first place.
Not really. Most cases arrive because the world is more complicated than can be bright-lined in a piece of legislation. Deciding what things are like other things is the function of the court, and often involve making comparisons that have to be built of fragile towers of logic. The Constitution makes these ambiguities even worse because the founders knew that they were constructing only a framework onto which laws would be grafted reflecting their times. (Which is why originalism is a religion that no human should believe in.)

Cases go through lower courts, with the bright legal minds on them often splitting their vote, to district courts, where the bright legal minds on them not only split their votes but often come to conclusions that are opposite to those of other district courts, and reach the Supreme Court to find that their bright legal minds don't agree with one another. Legislatures, no matter how able or careful or precise in their wordings, can't fix this reality, especially not in a world that is constantly changing in a million ways.

Are we in an unusual period in which five of the justices are conservative and four of them liberal? Certainly. Will this hold forever? Absolutely not. The world, as I emphasized, is constantly changing. The court's makeup will change as well. But those future courts will be subject to the same challenges that courts have always faced.
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Old 06-01-2019, 11:09 AM
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Not really. Most cases arrive because the world is more complicated than can be bright-lined in a piece of legislation. Deciding what things are like other things is the function of the court, and often involve making comparisons that have to be built of fragile towers of logic. The Constitution makes these ambiguities even worse because the founders knew that they were constructing only a framework onto which laws would be grafted reflecting their times. (Which is why originalism is a religion that no human should believe in.)

Cases go through lower courts, with the bright legal minds on them often splitting their vote, to district courts, where the bright legal minds on them not only split their votes but often come to conclusions that are opposite to those of other district courts, and reach the Supreme Court to find that their bright legal minds don't agree with one another. Legislatures, no matter how able or careful or precise in their wordings, can't fix this reality, especially not in a world that is constantly changing in a million ways.

Are we in an unusual period in which five of the justices are conservative and four of them liberal? Certainly. Will this hold forever? Absolutely not. The world, as I emphasized, is constantly changing. The court's makeup will change as well. But those future courts will be subject to the same challenges that courts have always faced.
You're right about that. I just get pissed at congress for not following up on some cases with better law. They use court decisions as an excuse to let issues continue to be batted around in the courts instead of creating constitutional laws to settle the issues.

However, as you say, that is not the majority of cases, most are those esoteric questions of law that arise from the ambiguity of language and an evolving ever more complicated world.

And as long as the SCOTUS sticks it's nose into hot button political issues I'd prefer they weren't closer to unanimity in their decisions.

Last edited by TriPolar; 06-01-2019 at 11:14 AM.
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Old 06-01-2019, 11:16 AM
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Board maintenance timed me out:

Just adding that I'd rather see close decisions in some tough cases.
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Old 06-01-2019, 11:29 AM
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I get what you're saying, but why should SCOTUS *vote* in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn't. In the case of such a vote, the court is not acting as a court but as a legislature.
Law is not a precise science like mathematics. Reasonable jurists can disagree about how the law should be applied in a certain case, and a great many times it is not along the conservative/liberal divide.

The criticism of the Court as nothing more than a legislature is typically levied by conservatives when liberals "invent" new rights out of whole cloth. That is a subject for another thread, but your proposal would simply affirm that idea that judges really aren't applying the law, but their own personal preferences.

If that is the case, then you are right, we really don't need courts adjudicating constitutional or statutory issues, but I don't think we've gone that far yet except in a case here or there.
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Old 06-01-2019, 01:19 PM
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Besides, let's point out that in many cases, really poor Supreme Court decisions have been handed down with large majorities. Plessy v. Ferguson, 163 U.S. 537 (1896) was a 7-1 holding, the lone dissenter being Justice J. M. Harlan. Dred Scott v. Sandford, 60 U.S. 393 (1857) was a 7-2 holding, the dissenters being McLean and Curtis, JJ. Buck v. Bell, 274 U.S. 200 (1927) was an 8-1 decision, the lone dissenter being Justice Butler, who didn't even write an opinion explaining his opposition, perhaps because the majority opinion was written by Justice Oliver Wendell Holmes, Jr. (those of you who don't recognize this decision: it allowed Virginia to forcibly sterilize the "unfit", including those considered intellectually disabled).

So just because a decision goes 5-4 doesn't mean it's a bad decision; just because the ruling is almost unanimous doesn't mean it's a good one.
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Old 06-01-2019, 04:52 PM
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Here's a few decisions that still resonate, and the SC votes:

Roe v. Wade (abortion) 7-2

Brown v. Board of Education of Topeka (school desegregation) 9-0

Miranda v. Arizona (accused's right to a lawyer) 5-4

Nixon v. United States (impeachment and trial of a federal officer is solely the power of Congress) 9-0, but with four separate opinions; not to be confused with -

United States v. Nixon (limiting the power of executive privilege aka, "the tapes") 8-0

Engel v. Vitale 6-1 and Abington School District v. Schempp 8-1 (prayer in public school)

New York Times v. United States (the "Pentagon Papers") 6-3

Citizens United v. Federal Election Commission (campaign spending by organizations) 5-4

Was Roe a "better" decision than Miranda because it had a bigger majority? How about Brown? It was unanimous.

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Old 06-02-2019, 11:18 AM
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Cases go through lower courts, with the bright legal minds on them often splitting their vote, to district courts, where the bright legal minds on them not only split their votes but often come to conclusions that are opposite to those of other district courts, and reach the Supreme Court to find that their bright legal minds don't agree with one another.
Right, I think the first problem is the portrayal of courts and judges as having any kind of firm grip on things. The second is what, if anything, to do about that.
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Old 06-02-2019, 11:21 AM
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I appreciate the educational posts here. Thank you.
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Old 06-04-2019, 08:09 AM
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Does anybody really think the Court is doing a worse job than Congress? I'd rather SCOTUS pass laws, to be honest, and let the congressfolk beg for money, which they're actually good at.
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Old 06-04-2019, 12:22 PM
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Does anybody really think the Court is doing a worse job than Congress? I'd rather SCOTUS pass laws, to be honest, and let the congressfolk beg for money, which they're actually good at.
Well, let's keep in mind that the Supreme Court of the United States HAS managed some real clinkers over time. And, of course, some of what are considered bad decisions in retrospect were quite popular at the time, at least with one faction of American politics.
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Old 06-05-2019, 12:42 PM
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I think a better thing to do would be to require a 6-3 majority or better to establish precedent.

Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there's no national precedent. The bigger questions are punted until another case where enough justices can agree.

At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment.

It would also make decisions more stable over time, which I think is generally something that's good for a court system, even if it sometimes comes at the expense of justice.
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Old 06-06-2019, 12:44 PM
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I think a better thing to do would be to require a 6-3 majority or better to establish precedent.

Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there's no national precedent. The bigger questions are punted until another case where enough justices can agree.

At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment.

It would also make decisions more stable over time, which I think is generally something that's good for a court system, even if it sometimes comes at the expense of justice.
There is no requirement that ANY Supreme Court decision act as "precedent". It's not written down in any rule, it's not in the Constitution, it's not part of any law. The "rule" of stare decisis is nothing more than the common sense application of the idea that re-litigating issues when the same result will occur makes no sense, and re-litigating issues with the result in unpredictable results would be even worse (as you noted). If the Supreme Court decides today that Vipples are unconstitutional under the Fourteenth Amendment in a case decided 5-4, then there is no good reason for District Courts to proceed as if that isn't "precedent" they should/must follow, because it's entirely likely, if not certain, that if they ignore the precedent, their ruling won't be over-turned 5-4 at the Supreme Court again.

And the court can be just as political a creature with 6-3 or 7-2 votes. See Roe v. Wade.
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Old 06-06-2019, 02:12 PM
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I think a better thing to do would be to require a 6-3 majority or better to establish precedent.

Basically, treat a 5-4 decision like a tie. The lower court decision stands, which means that the actual parties to the case get closure, but there's no national precedent. The bigger questions are punted until another case where enough justices can agree.

At least some of the increasing politicization of the court is due to the fact that a single vote is awfully important. Requiring a larger consensus on the court would reduce the extent to which every single appointment is treated as an absolute do-or-die moment.

It would also make decisions more stable over time, which I think is generally something that's good for a court system, even if it sometimes comes at the expense of justice.
So Obergefell can marry another man, but nobody else can have a SSM? That makes little sense.
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Old 06-07-2019, 07:39 PM
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Why not simply burn the Constitution, and allow a king to take power, and rule by decree?
Why not simply have www.vote.gov and require a majority for any action by government?
Half the people who are legally eligible to vote do not do so. In local elections the number is closer to three quarters.
When they are very lucky, republics and democracies get the government they deserve. The rest of the time they get to pay for whatever government chooses to spend their money.

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Old 06-08-2019, 11:39 AM
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You're right about that. I just get pissed at congress for not following up on some cases with better law. They use court decisions as an excuse to let issues continue to be batted around in the courts instead of creating constitutional laws to settle the issues.
Which is a fair point -- ideally, if the judiciary strikes down some law or administrative provision, the thing to do would be for the legislative and executive to come up with a new, better, more carefully prepared law/regulation that meets constitutional muster and addresses the defect in the prior one (which is not the same thing as legislative trolling to force the issue over and over again). But then that would mean actually going on the record voting for some compromise other than the facile campaign slogan, easier to go "if only the activist judges did not stop us!"

And yes, if the issue is tough and divisive you should expect to see a divided court, it's not always bloody obvious what's the right answer. And as cited above, some historic clunkers and aberrations passed by very comfortable margins and some triumphs of justice just squeaked by. Now, from my POV a close decision should serve as a signal to the political branches that they should tread lightly on that issue, and that is not what they do because, again, easier to campaign on "One more seat or it's the End Of Freedom!!!"

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Old 06-11-2019, 06:34 PM
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So Obergefell can marry another man, but nobody else can have a SSM? That makes little sense.
That's what would have happened if one of the five justices who voted in his favor had recused themselves for some reason.

So, maybe it doesn't make sense, but it's already an outcome of the system when there isn't a general agreement among the court.
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Old 06-12-2019, 12:26 PM
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That's what would have happened if one of the five justices who voted in his favor had recused themselves for some reason.

So, maybe it doesn't make sense, but it's already an outcome of the system when there isn't a general agreement among the court.
Not true.

The Obergfell case was an appeal from the determination of the Sixth Circuit Court of Appeal that same gender marriages could be barred constitutionally. But prior rulings in the Fourth, Seventh, Ninth, and Tenth Circuits had determined such state laws unconstitutional. Had the Supreme Court been unable to reach a determination on the appeal (say, by 4-4 split), then the Sixth Circuit would still have been bound by the upheld ruling they had issued. So states in the Sixth Circuit could have barred such marriages, but the rulings from the other circuits would have remained valid precedent in those circuits, precluding states in those circuits from barring such marriages. For circuits without a decision, no precedent would exists, so state laws barring same gender marriage would have continued to be valid unless/until tested in them.

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Old 06-12-2019, 02:43 PM
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Sorry, my answer was sloppy, and thank you for providing the correct facts.

My point was: there is a thing that happens when there is an evenly split decision, which is that some cases are decided and some are not, but there is no national precedent established. The state of the law is in limbo.

I think that same thing should happen when there is a 5-4 decision.
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Old 06-12-2019, 07:23 PM
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Sorry, my answer was sloppy, and thank you for providing the correct facts.

My point was: there is a thing that happens when there is an evenly split decision, which is that some cases are decided and some are not, but there is no national precedent established. The state of the law is in limbo.

I think that same thing should happen when there is a 5-4 decision.
But the whole point is that that's completely ignoring the rationale for stare decisis. It's not about someone having a "rule" that governs what to do with Supreme Court decisions (or any other decision). It's about simply avoiding the futility and unpredictability of constantly re-litigating an issue that's already decided. It's an extension of the principles of res judicata and collateral estoppel.

Let me ask you this: do you think that a Court of Appeals panel decision that goes 2-1 should be lacking precedential value? What about an en banc decision that splits so that the majority have just one vote more? How far does this concept go? Do you realize just how much extra litigation would occur if this concept was implemented?
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Old 06-13-2019, 07:46 AM
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I get what you're saying, but why should SCOTUS *vote* in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn't. In the case of such a vote, the court is not acting as a court but as a legislature.
Acting as the the legislature, who votes on bills handed to them by lobbyists, without having read, reasoned, and understood such bills?

The Court doesn't just blithely sit around the table like an HOA board and call for a show of hands. The members are scholars, and they understand law. They write out long opinions justifying their positions, citing precedents, citing the laws as written.

We certainly deserve a Supreme Court that can filter through the nonsense that comes from our House of Representatives. (I know, the Senate has to pass bills, too, but they're generally not as stupid as the House).
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Old 06-13-2019, 10:27 AM
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We certainly deserve a Supreme Court that can filter through the nonsense that comes from our House of Representatives. (I know, the Senate has to pass bills, too, but they're generally not as stupid as the House).
All bills have to be passed by both the House and the Senate, with exactly the same language. If a bill is passed with different language in the two, it goes to a conference committee that hammers out a compromise and then the revised, identical bill goes back to both houses. If again passed, it is that bill that becomes law.

I'm not sure how you figure out from that what language in what bills is the responsibility of one house over the other.
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Old 06-13-2019, 11:58 AM
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But the whole point is that that's completely ignoring the rationale for stare decisis. It's not about someone having a "rule" that governs what to do with Supreme Court decisions (or any other decision). It's about simply avoiding the futility and unpredictability of constantly re-litigating an issue that's already decided. It's an extension of the principles of res judicata and collateral estoppel.
People re-litigate anyway any time there's a one-justice change in the court and they think they can have a new test case.

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Let me ask you this: do you think that a Court of Appeals panel decision that goes 2-1 should be lacking precedential value? What about an en banc decision that splits so that the majority have just one vote more? How far does this concept go?
It applies only to SCOTUS.
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Old 06-13-2019, 07:56 PM
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I'm not sure how you figure out from that what language in what bills is the responsibility of one house over the other.
Easy. Because you can see the House bills and Senate bills before the enrolled bill is passed forward for signature.
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Old 06-13-2019, 11:23 PM
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People re-litigate anyway any time there's a one-justice change in the court and they think they can have a new test case.
Name me a 5-4 case that was "re-litigated" the minute there was a one-vote switch.
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Old 06-14-2019, 04:33 PM
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Name me a 5-4 case that was "re-litigated" the minute there was a one-vote switch.
Wasn't a third case just filed against that Colorado bakery?
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Old 06-14-2019, 04:39 PM
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To clarify my point which I've realized isn't obvious (since I know that Colorado v. Masterpiece Cakeshop wasn't a 5-4 decision): People will relitigate anything at conflict constantly. I'm not convinced that they would do so more with my proposed change.
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Old 06-14-2019, 05:55 PM
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Originally Posted by Balthisar View Post
Easy. Because you can see the House bills and Senate bills before the enrolled bill is passed forward for signature.
OK, I'm very impressed that you take it that far.

Can you provide some examples of stupidity in the House that is not matched by the Senate?
  #39  
Old 06-14-2019, 09:49 PM
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Originally Posted by iamthewalrus(:3= View Post
To clarify my point which I've realized isn't obvious (since I know that Colorado v. Masterpiece Cakeshop wasn't a 5-4 decision): People will relitigate anything at conflict constantly. I'm not convinced that they would do so more with my proposed change.
What gets litigated after a decision isn't a "re-litigated" case. What happens is people start trying to fill in the blanks, or chip away at the precedent set. We've seen that over the decades with Roe v. Wade, where the basic rule (based on trimesters) has been nibbled at, and blanks spaces filled in.

Re-litigating the case would mean literally taking the same facts and asking for a different decision on the law. That almost never happens because, you know, stare decisis, collateral estoppel, and res judicata.
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Old 06-16-2019, 11:06 PM
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Re-litigating the case would mean literally taking the same facts and asking for a different decision on the law.
Now it's my turn: give me an example of two cases with the same facts

It seems to me that what would happen in a case that was literally the same facts is that the various appellate courts would do what they do and the Supremes wouldn't grant cert. You'd get regional precedents but not nationwide precedent. And then when the composition of the court changed then maybe they'd grant cert to the next one that showed up.

In actuality, though, no two cases have the same facts. There's always enough of a difference that if there's a new justice who wants to overturn precedent, then there's a plausible claim that this new case is enough different from the previous one that it can be heard.
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Old 06-18-2019, 01:48 AM
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By the way, today the Supreme Court gave us some really good examples of exactly why messing around with stare decisis is a dangerous idea. Thank-you to Clarence Thomas, J., for making the point eloquently (though, of course, he was trying to make the complete opposite point!).

Justice Thomas argues for making stare decisis less rigorous.

Fortunately, the Supreme Court isn't having any; sends wedding cake case back to Oregon to re-examine in light of recent Supreme Court holding

Oh, and they refuse to do what Thomas, J. wants in the double jeopardy case
  #42  
Old 06-20-2019, 12:02 PM
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Originally Posted by DSYoungEsq View Post
By the way, today the Supreme Court gave us some really good examples of exactly why messing around with stare decisis is a dangerous idea. Thank-you to Clarence Thomas, J., for making the point eloquently (though, of course, he was trying to make the complete opposite point!).

Oh, and they refuse to do what Thomas, J. wants in the double jeopardy case
Thomas joined the majority on that case, so I'm not sure you can make a good claim that the court did something he didn't want to do.

I tend to agree with Thomas on this. Stare decisis is a useful value for a court to consider, because you don't want the decisions of the court to whipsaw around as the composition changes. Courts should be conservative (in the legal sense, not the partisan sense) and avoid rapid changes.

But at some point you have to be willing to buck past precedent because it's wrong. Otherwise we'd still be stuck with Dredd Scott and Bowers v. Hardwick. Where Thomas and I differ is that he thinks that originalism means that the 9th Amendment means nothing, and any unenumerated right is worthless.
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Old 06-20-2019, 01:37 PM
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Thomas' point was that the Court's enumerated rationale for eventually discarding a previously established point of law is too restrictive. We know that the court will, at times, overturn precedent; Brown v. Board of Ed. is one such example. But Thomas wants to discard a previous decision anytime a majority of the court thinks that the prior decision is "wrong". This is a dangerous concept. It would completely politicize the Court, in a way that we are already perilously close to experiencing. What is "wrong" to Thomas may be different from what is "wrong" to Ginsberg, for example. If the court moves from correcting obvious error to correcting apparent error, we lose the certaintude of stare decisis. This is not a good thing.

For example, stare decisis is pretty clearly the only reason that Roe v Wade exists still in any form.
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