# Accusing SC Justices of partisanship and prejudice. Isn't that hyperbole? **URL:** \ **Category:** Politics & Elections\ **Tags:** trump\ **Created:** [July 21, 2024, 7:04pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550 "2024-07-21T19:04:18Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![anny\_m](https://avatars.discourse-cdn.com/v4/letter/a/96bed5/32.png) [@anny\_m](https://boards.straightdope.com/u/anny_m)\ **Post date:** [July 23, 2024, 5:57pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/61 "2024-07-23T17:57:17Z")
> [@Lumpy](#): > > As far as I can tell, many people simply consider it self-evident that _ **of course** _ abortion is a liberty; and that therefore no judgement otherwise could possibly be the result of a good faith reading of the law. Not upholding abortion was evil according to this standard. You write this as if to say people _shouldn’t_ consider it self-evident that abortion is a liberty. I’ll say flatly that of course abortion is a liberty. Bodily autonomy is the most basic right of all. (Many, if not nearly all, legal scholars would agree.) So yes, not upholding abortion was evil. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 23, 2024, 7:29pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/62 "2024-07-23T19:29:09Z")
I’ll just say that this self-evident fact somehow escaped the notice of lawmakers and judges from the first anti-abortion law in America until 1973. Until then regulating abortion– and contraception, sexual behavior, obscenity, and morality in general– was considered a legitimate part of the police power of the state. ETA: frankly, somewhere around 1960 or so we needed a constitutional amendment that explicitly overturned morality laws. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [July 23, 2024, 7:47pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/63 "2024-07-23T19:47:17Z")
> [@Aeschines](#): > > Good questions… that our founders never considered. Judicial review was a power arrogated by the court in [Marbury v. Madison - Wikipedia](https://en.wikipedia.org/wiki/Marbury_v._Madison). I share your frustration with current Court but on this point I disagree. Article III expressly provides that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The Constitution does not use the precise term “judicial review,” but it follows that “appellate jurisdiction, both as to law and fact,” confers the authority to interpret the law (which includes the Constitution) and conclude when statutes and regulations exceed Constitutional bounds. > [@Aeschines](#): > > I’m not a lawyer so I will leave the solution to others, but we clearly need some kind of safety valve on judicial review, as the current court demonstrates by overturning precedent like it’s nothing and making up new law out of whole cloth. The Constitutional safety valve is the authority of Congress to except the Court’s appellate jurisdiction. Simple majorities in the House and Senate could do so. However, that won’t happen if a majority of Americans elect anti-democratic authoritarians to positions of power who have no interest in limiting the Court’s jurisdiction but rather in promoting the Court’s power grab. Put simply, the real safety valve is the ballot box. > [@Aeschines](#): > > What would we do if the court decided, “Donald Trump is uniquely immune, and we declare him president for life with dictatorial powers”? Because they are not far from that. Impeach? Expand the court? The GOP would be hopping with glee and refusing to participate in any solution. A revolution would be _necessary_ at that point. There are currently zero practical limits or checks on their power. That would be a coup (ETA for clarity: by the Court). ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 23, 2024, 7:47pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/64 "2024-07-23T19:47:19Z")
> [@Lumpy](#): > > I’ll just say that this self-evident fact somehow escaped the notice of lawmakers and judges from the first anti-abortion law in America until 1973. Okay, and? You could fill a book with basic human rights that American law makers thought were the purview of the legal system. Until 1954, where Black people get to sit on a bus was considered to be a legitimate part of the police powers of the state, too. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 23, 2024, 7:53pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/65 "2024-07-23T19:53:21Z")
> [@Lumpy](#): > > ETA: frankly, somewhere around 1960 or so we needed a constitutional amendment that explicitly overturned morality laws. Right. We currently need a lot of amendments and changes, but we all know that can’t happen any more because the amendment process is too cumbersome, etc. That’s one reason why we have, in a very unhealthy way, come to depend on the SC for getting any change done in the country. Now that we have a mad fascist majority court, a lot of bad changes are happening. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 23, 2024, 7:59pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/66 "2024-07-23T19:59:28Z")
> [@Ulysses](#): > > The Constitution does not use the precise term “judicial review,” but it follows that “appellate jurisdiction, both as to law and fact,” confers the authority to interpret the law (which includes the Constitution) and conclude when statutes and regulations exceed Constitutional bounds. Fair enough, but I can only suppose the intent was not to give the Court such power as to create a bunch of stuff that isn’t in the Constitution at all, whether bad (Dredd Scot, Dobbs), good (Brown), or debatable (Roe). (I think Roe was a good result in terms of treating women fairly but bad in terms of the political acrimony it engendered, which has no sign of abating even now.) > [@](#): > > Put simply, the real safety valve is the ballot box. It’s not good enough and certainly not fast enough, especially if the court makes radical changes as with the immunity decision that could empower one side over the other. > [@Aeschines](#): > > That would be a coup (ETA for clarity: by the Court). Right. And there is currently no way to counter it. I mean, we’re in a SC takeover _right now,_ and I don’t think they’re done yet. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [July 23, 2024, 8:09pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/67 "2024-07-23T20:09:14Z")
Of course it wasn’t “self evident” to _them;_ they were the ones _doing_ the oppression and abuse, not the ones suffering it. You might as well expect slave owners to acknowledge the obvious immorality of slavery. If they even thought about it, it was probably to gloat about it. ---
**Author:** ![Steven\_Maven](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steven_maven/32/3272_2.png) [@Steven\_Maven](https://boards.straightdope.com/u/Steven_Maven)\ **Post date:** [July 23, 2024, 8:14pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/68 "2024-07-23T20:14:40Z")
> [@China\_Guy](#): > > Fact check me, but didn’t every conservative justice during the confirmation hearings state something to the effect that Roe V Wade was settled case law? That also is my recollection. If you are correct, could they be impeached for perjury? ---
**Author:** ![Akaj](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/akaj/32/145_2.png) [@Akaj](https://boards.straightdope.com/u/Akaj)\ **Post date:** [July 23, 2024, 8:16pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/69 "2024-07-23T20:16:24Z")
> [@Steven\_Maven](#): > > could they be impeached for perjury? They can be _impeached_ for anything the House decides is impeachable. The hard part is getting 2/3 of the Senate to _convict_. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 23, 2024, 8:22pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/70 "2024-07-23T20:22:26Z")
> [@Aeschines](#): > > It’s not good enough and certainly not fast enough, especially if the court makes radical changes as with the immunity decision that could empower one side over the other. There’s no way to set up a system of democratic government that can survive a population that doesn’t want democracy. If you put another check on the power of the supreme court, then all you’ve done is change which institution the authoritarians will target for capture. Instead of the Supreme Court saying, “Presidents have immunity,” you have the Supreme Court saying, “Presidents don’t have immunity,” and the Supreme Court Review Board saying, “No, this decision is wrong, the President _should_ have immunity,” and then you’re right back at square one. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 23, 2024, 8:36pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/71 "2024-07-23T20:36:31Z")
> [@Miller](#): > > Instead of the Supreme Court saying, “Presidents have immunity,” you have the Supreme Court saying, “Presidents don’t have immunity,” and the Supreme Court Review Board saying, “No, this decision is wrong, the President _should_ have immunity,” and then you’re right back at square one. Congress should be deciding that kind of thing, and/or Congress and the states when it comes to amendments. That’s why I said that Congress should be able to choose the dissenting opinion. Hell, if these august paragons of legal knowledge and experience can’t agree on something, why do the five justices get to be right just because they have one more august paragon? It’s ridiculous when you think about it. Congress should be that review board. Now, how that would work is up for debate. Perhaps a decision would stand unless there were a 2/3 vote against it, etc. Maybe that’s a bad idea, but we need a better way to rein in a corrupt, radical court. I don’t think any possible solution would put us back to square one. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 23, 2024, 8:43pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/72 "2024-07-23T20:43:57Z")
> [@Aeschines](#): > > Judicial review was a power arrogated by the court in [Marbury v. Madison - Wikipedia](https://en.wikipedia.org/wiki/Marbury_v._Madison). What exactly was it envisioned that the Supreme Court DO, if not rule on the constitutionality of laws? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 23, 2024, 8:45pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/73 "2024-07-23T20:45:54Z")
> [@Aeschines](#): > > That’s why I said that Congress should be able to choose the dissenting opinion. Okay, so what’s the check on Congress passing unconstitutional legislation, then? If Congress passes a law that says, “The US is a Christian nation, everyone in it must be Christian.” Eight justices say, “Hell no,” but one justice says, “Actually, yes.” Congress chooses the dissenting opinion, and now everyone has to pray to Jesus every day. > [@Aeschines](#): > > Congress should be that review board. Now, how that would work is up for debate. The whole point of the supreme court is that it is the review board _for Congress_. > [@Aeschines](#): > > Now, how that would work is up for debate. Perhaps a decision would stand unless there were a 2/3 vote against it, etc. We already have a process where, if 2/3rds of Congress disagrees with the court, they can overturn the decision. It’s called a Constitutional amendement. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 23, 2024, 8:54pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/74 "2024-07-23T20:54:38Z")
The problem with giving a legislature the authority to overrule the judicial system is that this well was thoroughly poisoned in England/Britain during the Sixteenth and Seventeenth centuries, and the USA inherited the backlash against this. To the point where (eta) the Declaration of Independence denounced the attempt by the Crown to make judges’ salaries dependent on the Crown’s good graces(/eta); and the federal constitution thought it necessary to explicitly ban _ex post facto_ laws and bills of attainder. While the judiciary may be swayed by the power of partisan factions to appoint justices who are sympathetic to their causes, an independent judiciary is thereafter almost completely free from power politics. Justices can– and have– proven singularly ungrateful for their appointments. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [July 23, 2024, 9:02pm UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/75 "2024-07-23T21:02:45Z")
> [@Aeschines](#): > > Fair enough, but I can only suppose the intent was not to give the Court such power as to create a bunch of stuff that isn’t in the Constitution at all, whether bad (Dredd Scot, Dobbs), good (Brown), or debatable (Roe). (I think Roe was a good result in terms of treating women fairly but bad in terms of the political acrimony it engendered, which has no sign of abating even now.) I almost entirely agree. Where I disagree is that I think Roe articulates a fundamental right (i.e. bodily autonomy) and logically follows from several Constitutional principles. > [@Aeschines](#): > > It’s not good enough and certainly not fast enough, especially if the court makes radical changes as with the immunity decision that could empower one side over the other. But it’s really all we’ve got. If you or I or someone else gets to be the authoritarian arbiter of where government power ends and individual rights begin that’s, well, authoritarian and not democratic. > [@Aeschines](#): > > Right. And there is currently no way to counter it. I mean, we’re in a SC takeover _right now,_ and I don’t think they’re done yet. I agree the Court is engaged in a power grab but I think there are ways to counter it. Start with the ballot box. Next step is limiting the Court’s jurisdiction. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [July 24, 2024, 12:13am UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/76 "2024-07-24T00:13:58Z")
> [@Steven\_Maven](#): > > That also is my recollection. If you are correct, could they be impeached for perjury? A careful examination of their statements indicates they were stating opinions, not facts, so probably not within the legal definition of perjury. That said: > [@Akaj](#): > > They can be _impeached_ for anything the House decides is impeachable. The hard part is getting 2/3 of the Senate to _convict_. 100%. Impeachment is a political process. Not a legal process. > [@Miller](#): > > There’s no way to set up a system of democratic government that can survive a population that doesn’t want democracy. This 1000%. I sometimes wonder if Plato may have had it right in _The Republic_. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 24, 2024, 12:21am UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/77 "2024-07-24T00:21:47Z")
> [@Miller](#): > > Okay, so what’s the check on Congress passing unconstitutional legislation, then? If Congress passes a law that says, “The US is a Christian nation, everyone in it must be Christian.” Eight justices say, “Hell no,” but one justice says, “Actually, yes.” Congress chooses the dissenting opinion, and now everyone has to pray to Jesus every day. That is a very good point! But I would counter: What if the _Supreme Court_ declares we are a Christian nation, and there is no practical remedy for that? > [@](#): > > The whole point of the supreme court is that it is the review board _for Congress_. Which is needed. But then there is no review board for the SC itself? > [@](#): > > We already have a process where, if 2/3rds of Congress disagrees with the court, they can overturn the decision. It’s called a Constitutional amendement. I think you missed a step: ratification by 3/4 of the state legislatures. It’s an insurmountable requirement in the modern era. We in essence are incapable of amending the constitution at present. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 24, 2024, 12:22am UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/78 "2024-07-24T00:22:55Z")
Interesting points, thank you. ---
**Author:** ![Aeschines](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aeschines/32/16251_2.png) [@Aeschines](https://boards.straightdope.com/u/Aeschines)\ **Post date:** [July 24, 2024, 12:26am UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/79 "2024-07-24T00:26:27Z")
> [@Ulysses](#): > > I almost entirely agree. Where I disagree is that I think Roe articulates a fundamental right (i.e. bodily autonomy) and logically follows from several Constitutional principles. I’m with you, mostly, but the right to bodily autonomy would, I would think, grant one the ability to ingest any substance one likes (drugs), engage in medically assisted suicide, etc. etc. > [@](#): > > But it’s really all we’ve got. If you or I or someone else gets to be the authoritarian arbiter of where government power ends and individual rights begin that’s, well, authoritarian and not democratic. But what if the court acts in an undemocratic way, as they demonstrably have in recent years? What counters that? > [@](#): > > I agree the Court is engaged in a power grab but I think there are ways to counter it. Start with the ballot box. Next step is limiting the Court’s jurisdiction. I don’t think it’s good enough, inasmuch as the SC can issue a flurry of decisions while democratic processes are too slow in comparison. A corrupt and radical court, as we have now, has only the advantage in such a situation. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [July 24, 2024, 12:36am UTC](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550/80 "2024-07-24T00:36:26Z")
> [@Aeschines](#): > > I’m with you, mostly, but the right to bodily autonomy would, I would think, grant one the ability to ingest any substance one likes (drugs), engage in medically assisted suicide, etc. etc. The Supreme Court (in more reasonable times) articulated the strict scrutiny test for fundamental rights. Restrictions on bodily autonomy should thus need to be narrowly tailored to further a compelling government interest. We could debate the specific application of that test to drug use and suicide but I hope you take my point that there are limits to rights. > [@Aeschines](#): > > But what if the court acts in an undemocratic way, as they demonstrably have in recent years? What counters that? The will of the people through the electoral process. Democracy itself is the best (and perhaps only) counter to anti-democratic acts. Congress could limit the Court’s jurisdiction. Or expand the Court. Among other legislative options. On the other hand, and this is I know a frightening statement, but if a majority of citizens want fascist authoritarianism, that’s what they’ll get. > [@Aeschines](#): > > I don’t think it’s good enough, inasmuch as the SC can issue a flurry of decisions while democratic processes are too slow in comparison. A corrupt and radical court, as we have now, has only the advantage in such a situation. To the extent the people concede that advantage, yes. But the Court is a Constitutionally-constrained branch of government just like the Executive and Legislative branches. Elections have consequences. ETA: Great discussion. Thanks for keeping it cordial given we’re probably 99% on the same page here. [Previous page](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550.md?page=3) [Next page](https://boards.straightdope.com/t/accusing-sc-justices-of-partisanship-and-prejudice-isnt-that-hyperbole/1004550.md?page=5)