Technically no. A Supreme Court decision can be overridden by a Constitutional amendment. The Dred Scott decision, which said black people do not have legal rights, was overridden by the Fourteenth Amendment. The Pollock decision, which said that taxes on income were illegal, was overridden by the Sixteenth Amendment.
I’ll grant that amending the constitution is a difficult process but this discussion is about an unlikely hypothetical scenario.
One issue is whether every Republican would embrace a coup that primarily benefits Donald Trump. There are plenty of Republicans who would unite on the idea of turning America into an absolute monarchy but then fall out over the question of who gets to wear the crown.
The Supreme Court knows that if it makes some totally outlandish ruling like “All Democrats must be Zyklon-B’d,” it would lose all legitimacy and nobody would ever heed it. But if it keeps pushing the envelope on a hundred subtle rulings and boils the frog, then the Trump faction/right wing could very much enact things because they now have the weight of law and “legitimacy” - it would be the Democrats disobeying the law, not them. And to the casual observer who doesn’t follow politics in detail, it WOULD look like the Trump/right wing is correct, since they technically are in fact upheld by SCOTUS.
If you thought January-6 was bad, then just wait until you see what Trumpers do when they actually have the law on their side, not against them.
There’s the other branch of government to consider as well.
Look, what the court could say is unbounded, and what they can get away with is nearly unbounded. But all of the 6-vote Republican majority prefer to have a plausible veneer of constitutional legitimacy, and of those, all but 2 will energetically preserve it. (Note I’m not talking about preserving the intent of the Constitution, just the appearance of constitutional legitimacy). They know that when the court’s actions effectively make the military a 4th branch of government, checks and balances flow from the barrel of a gun. No SCOTUS justice wants to end their career at the end of a rope just because they ceded power to an unpredictable institution that they don’t control.
That’s why I say that SCOTUS’s actions will be more of a slow-drip to gain control of institutions that have democratic legimacy. They’ll keep their thumb on the scale to keep power tilted toward Congressional Republicans. This will let them undermine independent institutions via oversight, and permit great influence over elections.
Their end goal is to avoid anything that looks like them starting a civil war. They aim to capture all 3 branches of government without firing a shot and then cement permanent control, and then subjugate the blue states until the blue states to something that could be construed as a civil war. The Republicans don’t want to start a civil war; they want to provoke one and then end it.
Sure, but those are in regimes that have already stabilized. When there’s an active war and in the immediate aftermath, I suspect that there would be at least a fairly decent chance that the Supremes end up on the wrong side of the barrel of a gun, even if they were on the right political side. Sort of like how the Reign of Terror eventually turned on Robespierre. In other words, it wouldn’t be the end of the SCOTUS, but there’s a good chance it would be the end of the current justices.
@GailForce Let me wildly overpraise this theoretical by saying it has a 0.00000000001% chance of occurring. There. Not zero.
So what do you want us to do about it? Take up arms and storm the Supreme Court building? Kidnap some wives and children and hold them for ransom? Vote for Biden in November?
That last is the only reasonable response. But it’s utterly superfluous. You are talking to a crowd of Democrats.
If all you want is to have people talk you off your ledge, you’ve succeeded. The real world isn’t going to form ranks and march into Washington at the release of a decision full of dicta. Trump, in fact, would hate this decision. The people in power would laugh and tell him to try to enforce it and laugh more when he can’t and laugh when he cries in ALL CAPS about how mean they are to him. Unless you’re a secret double agent playing five-dimensional Jenga this is probably not the result you’re looking for.
So what is the point? What does this add to the current mountains of opprobrium about the Supreme Court that can already be found here and everywhere else Dems congregate? Why this faux Gish gallop of nonsense? Really, why?
Without reading any reply so far* , I would guess from abroad that this is the precise scenario the 2nd amendment was intended for: you (generic US-you; you the People with capital C) would have to start an insurrection.
Though probably some clever lawyers have given some tecnical solutions to the all-powerful-Supreme-Court hypothesis, so perhaps it takes a bit more than just (hu… just?) a Supreme Court runnning amok to trigger an insurrection against injustice.
* And I think I won’t read any for a while, I fear they may be too depressing.
My thoughts exactly. Civil wars are not exactly neat and tidy affairs. And it’s apparent that the current Republicans are not exactly all on the same page and seem to be quite fond of purity tests. And some of them are batshit insane.
The current justices would have to calculate the odds (win or lose) of finishing up swinging from a lamp post.
I’ve read the thread but don’t have the stamina to enter deeply into this discussion.
I just want to say that as extreme as the OP sounds, there are things that have happened-- indeed, that are now the norm– that were unthinkable 10 years ago.
The real solution – something more concrete and lasting than “vote for Biden” – is to amend the Constitution. Just as the Civil War produced the 13th, 14th and 15th amendments, the Trump era should produce a set of amendments that make sure this never happens again. Define “emoluments” to include business interests. Fix the text of the impeachment clause to better define what’s impeachable (not “high crimes and misdemeanors”). Fix the elector vote counting process. Explicitly state that the president can be indicted while in office for crimes committed before or during his term – excluding “official duties” but list what those are, and aren’t.
What stops the Supreme Court from doing something like that? The fact that there’s probably a line somewhere past which enough people will say, “You know what? We’re not enforcing that.” At some point, the Court would no longer be interpreting the Constitution, but instead would be rewriting it.
It’s just a matter of “choosing the right moment,” as once it happens, the Supreme Court is, for all intents and purposes, powerless. It’s similar to the filibuster in the Senate; there’s a lot of talk about getting rid of it, but once you do and your side then loses control, what happens next?
Sure, but amending the Constitution is well-nigh impossible. The bar is set so high as to be intentionally near-impossible to meet.
In the aftermath of a civil war that was touched off by the Supreme Court going absolutely nuts, some things become more possible than they are right now.
Of course, there’s no guarantee that the same people will win, so who knows what amendments will be adopted?
The unspoken premise of the OP is that the court is being backed up by a congressional faction strong enough to block any counter-measures. At that point the question simply becomes whether ala’ Germany 1933 enough people in high places are in favor of overturning constitutional democracy in favor of a dictatorship. FWIW I don’t think that the SC has the influence to unilaterally impose such a regime. And despite the constant interpretation on this board of recent Supreme Court rulings being politically or ideologically motivated, I don’t think the Justices are handing done ad hoc decisions; I think they’re following a (small-c) conservative judicial philosophy.
Right; that’s why it’s only been done 27 times.
I would assume the President has immunity for acts performed under his duties as president.
In other words, if the President orders some ships to patrol the Gulf and somebody get hurt due to that- he cant be sued, since that is within his listed duties as President.
Which will not happen during the current political climate.
Correct.
The last substantive amendment was in 1971, the 26th-The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Note that was over 50 years ago, and prior to the polarization of the GOP.
Getting the sorts of amendments we need to modernize and dictator-proof our current constitution will only happen after one of two scenarios:
A civil war, or a near civil war, that scares the shit out of absolutely everyone on the Left and the Right. And probably destroys a hell of a lot of people’s lives and livelihoods.
A period spent under a true totalitarian police state or kleptocratic corrupto-state that convinces even the folks who currently lean authoritarian that authoritarianism is too dangerous to even wish towards, much less actually implement.
The war is the quicker but less certain way to get there. Lotta ways for that to go horribly wrong for the Good Guys.
OTOH, if other country’s examples are studied, you’ll find a backslide into totalitarianism, and especially into doctrinal True Believer totalitarianism as opposed to plain old Big Man totalitarianism, normally takes 50 to 100 years to recover from.
Sleep tight America; we’re headed right there.
IMHO the 26th Amendment was a mere tweak- adjusting the voting age by a couple of years. I would say that the last truly substantive amendment was the 24th in 1964, which banned poll taxes.
There is a third- the Dems get a super majority in both houses.
Three years and adding younger voters changed the demographics a lot.
And a supermajority in 2/3rds of the state legislatures. That’s 34 states.
And maintain that lock on the whole two-level legislative machinery of the country for I bet 6 years. Maybe 8 if we assume typical Big Tent Democrats and the need to deal with their 4 disparate and warring lunatic fringes as well as their mainstream folks.
That’s a tall order, Sir. A very tall order.
In essence, my two scenarios are the ones that I think would deliver a national electorate and 50 states’-level electorates able in turn to deliver the legislative majorities you correctly describe as necessary.