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.
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.
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.
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.
That would be a coup (ETA for clarity: by the Court).
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.
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.
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.)
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.
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.
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.
That also is my recollection. If you are correct, 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.
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.
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.
What exactly was it envisioned that the Supreme Court DO, if not rule on the constitutionality of laws?
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.
The whole point of the supreme court is that it is the review board for Congress.
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.
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.
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.
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.
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.
A careful examination of their statements indicates they were stating opinions, not facts, so probably not within the legal definition of perjury. That said:
100%. Impeachment is a political process. Not a legal process.
This 1000%. I sometimes wonder if Plato may have had it right in The Republic.
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?
Which is needed. But then there is no review board for the SC itself?
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.
Interesting points, thank you.
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 what if the court acts in an undemocratic way, as they demonstrably have in recent years? What counters that?
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.
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.
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.
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.