28 USC § 2241 - Power to grant writ
Each Justice has the power to grant a writ of habeas corpus. While meeting with his attorney, the attorney could present the Justice with a petition to grant himself (or himself and the other four) *habeas.
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And, as Ravenman and brazil84 have pointed out, I by no means believe that any such writ would be taken seriously.
And I would contend that the reason a rogue Supreme Court would be ignored is that it would have no legal basis for its actions.
If a rogue Congress tried to order a general to attack Bermuda, Congress would be ignored, too. Not because the military has a aesthetic distaste for Congress, or like Bartleby the Scrivener, the military would prefer not to; but because Congress has no legal authority to order such things.
The problem with this argument is that the Supreme Court is (at least in theory) the ultimate arbiter of what American law says. If Ravenman says that the Constitution says “X” and the Supreme Court says that the Constitution says “Y,” then, at least in theory, Y will prevail.
Actually Congress could do so, at least in theory: The first step would be to impeach and remove from office the president, vice-president, and all federal judges and to appoint the Speaker of the House as president (who could then appoint friendly federal judges). There is a theoretical legal basis for all of this.
So I suppose one could ask the question – could a majority of Congress act with legal impunity? And I think that the answer is “no” for the same reason as with the Supreme Court.
But there has to be a law in place for them to rule on. They just can’t make completely arbitrary decisions. If the Constitution doesn’t give the Supreme Court original jurisdiction in homicide cases, then a Supreme Court ruling that said they did would be invalid.
Says who? What if they wrote an opinion stating that based upon the separation of powers (complete with cites) only the judicial branch controls what goes on in the courthouse, and based upon (more cites) the pneumbras of the constitution state that the evolving standards of decency demand that under due process the legislative branch cannot interfere with the right to judicial privacy inherent in the common law of England from the Magna Carta (more cites out of context) that the Supreme Court has original jurisdiction over those matters. (Big Breath). And oh, btw, case dismissed in the lower courts and arrest warrants issued for those officials who brought it to trial.
What is the procedure to say that what the Supreme Court says is “illegal”? The only way is what others are saying: Ignore them and do what you want anyways. That was what some were thinking from the early days of the republic.
As I said before, they can say whatever they want to. They could declare that it’s unconstitutional for anyone not to wear their underwear outside their clothes. But that wouldn’t have any basis in law.
Plus, these whacko rulings would quickly lead to impeachment. The justices responsible for undermining the separation of powers could be disposed of very quickly.
I agree that Congress and the President wouldn’t allow such a thing to stand. But at some point, they would have to say that the Supreme Court is not the final arbiter of law in the United States and reverse 210 years of precedent.
What if the Justices are impeached but before conviction rule that impeachment of Supreme Court Justices is unconstitutional, and issue arrest warrants for congressmen who voted for impeachment?
Who decides what SCOTUS decisions have a “basis in law”? Obviously open murder and defiance has no basis in law. Maybe I think that legal abortion in all states or unlimited campaign financing has no “basis in law”? By what procedure, other than ignoring the Court, does one enforce something that allegedly doesn’t have this legal basis.
Everyone is rightfully saying that such a ruling by the Court wouldn’t be enforced. But I don’t understand this elevated way of thinking that such a ruling would be invalid only because it has no legal foundation. The Supreme Court says what the law is. See Aaron v. Cooper.
In theory, the Supreme Court could rule that “impeachment,” as provided for in the Constitution, does not apply to Supreme Court justices. As noted above, the Supreme Court is (at least in theory) the ultimate arbiter of what American law says. If Ravenman says that the Constitution says “X” and the Supreme Court says that the Constitution says “Y,” then, at least in theory, Y will prevail.
(And again, in practice such a ruling would likely be ignored.)
The whole concept that the Supreme Court is “final arbiter of law” only really applies to areas where we’ve collectively said “we’re okay with that.” There is nothing in the Constitution that gives them this power. That means that in extraordinary situations if the executive and legislature chose to ignore a Supreme Court ruling they felt to be unconstitutional it’d be no more legally incorrect than the Supreme Court was in staking out judicial review for itself in Marbury v. Madison. The Supreme Court’s power is poorly fleshed out by the text of the constitution, we’ve let them fill in the blanks to a degree.
But to say that the Congress couldn’t ignore an unconstitutional SCOTUS decision would be about the same as saying that the SCOTUS couldn’t appropriate the power of judicial review for itself. Meaning, it’s a constitutional argument with no clear answer for which only customs can actually provide an answer.
There have been several cases where the Congress has exercised its court stripping power to deny the SCOTUS appellate jurisdiction over certain cases. In all the cases I’m aware of, the court when ruling on the case basically said, “all we can do is note that the Congress has stripped our power to hear this case, and as it is duly a power of the legislature we can say no more on the matter.” The court did this because it knew if it tried to fight with the legislature something “really bad” would happen to it. Those were situations where the Congressional majorities involved could easily have impeached all of the justices, or appointed 10 more new justices to overrule the existing ones on everything, or done various other things the SCOTUS would not like (for example they could have made them go back to riding circuits for so many months out of the year or etc.)
The real SCOTUS knows the boundaries of its customary powers. A fictional SCOTUS that did not would meet the same fate that the real SCOTUS knew waited for them if they violated those boundaries.
And if the Court went bonkers, they would.
Again, they don’t get to shout law into thin air. They can only rule on cases that are brought before them in the proper manner.
The Court is quite easy to ignore. What more is needed?
But every scenario in this thread is about the Court moving outside the law. If I say that in such a hypothetical the Court would not be obeyed, how do you challenge that? Your only rejoinder - you and others - is to insist, “but the whole world would bow down to their supremacy no matter what crazy things they said and did.” You’re not arguing a nuance here. You’re saying that the Supreme Court could launch a coup to overturn the government and get away with it just because they have robes. I say, nuts.
Justice William O Douglas, in 1975. After he suffered a stroke, but still continued to serve as a Justice, the other 8 decided to postpone consideration of all cases that were tied 4-4, where he would be the deciding vote*. It was said that they put considerable pressure on him to retire, but as this was ‘unofficial’, there isn’t a cite for that. But at the next term, when he continued to act as a Justice, and tried to participate in conferences of the Justices, they did send him a formal letter teling him that as he was retired, his services to the Court had ended.
See https://en.wikipedia.org/wiki/William_O._Douglas.
*Some of this may have been because the Court was turning conservative with Nixon & Ford appointees, and his vote would have won these cases to the liberal side.
I don’t think anyone in this thread disagrees with that.
Who decides what is the “proper manner”? In theory, it is the courts themselves. And in theory, the Supreme Court is the highest court.
I think you are misunderstanding the disagreement here. I don’t think anyone in this thread disputes the point that the Supreme Court would be ignored if it went crazy. The question is whether there are theoretical legal reasons why the Supreme Court could not act with impunity. The answer is that according to current Constitutional law, there are not.
You talk about the Supreme Court “moving outside the law.” Who would be deciding that the Supreme Court has moved outside the law? The president? Congress? What would be their legal justification for doing so?
I really think you need to read the Constitution.
Even if that could happen, what would prevent the other branches of the government from packing the court with additional justices to overrule them?
Having 9 justices is a matter of tradition, but there is nothing that establishes that limit in the constitution.
What exactly is in the Constitution that I am missing?
Also, do you agree that if Ravenman says that the Constitution says X, and the Supreme Court says that the Constitution says Y, then Y will prevail, at least in theory?
You’re representing that the Supreme Court has a trump card to overrule all the checks and balances ingrained into the Constitution. It’s not one or a couple things that you’re missing, you’re missing the entire big picture and fixating only on the court’s role to interpret the constitutionality of laws – which isn’t in the text of the Constitution, of course.
If Congress passed a law increasing the number of Justices to 19, in theory the Supreme Court could strike down that law as being unconstitutional.
You might protest that there is nothing in the Constitution specifically prohibiting court packing, but keep in mind that there is nothing specifically prohibiting states from banning abortion either.
You might also point out that the Supreme Court would simply be ignored. And you would probably be right. But that’s the difference between theory and practice.
In theory or in practice?
I don’t understand your point. Do you dispute that at least in theory, the Supreme Court is the ultimate arbiter of the Constitution?
No, the Supreme Court can’t go around willy-nilly ruling laws unconstitutional. That isn’t legal.
The courts have no power to determine their jurisdiction or composition. That’s the job of Congress.
The courts have no role in the impeachment process. That, again, is a legislative power.
Your entire argument is out of line with the facts of what the Constitution says, how the government runs, the power of the other branches, and a dozen other problems. You might as well be posting that the Supreme Court can take over the country because CJ Roberts’ only weakness is kryptonite, but he’s secretly signed a court order requiring all krptonite to be blasted into space. You keep saying various things “in theory,” but I suggest that you start amending your posts with the disclaimer that your views have no relation to this universe or reality in general.