Assuming that’s true, it follows that it’s wrong to say that Congress would simply impeach the justices; or pack the court; or strip them of jurisdiction; or any of the other seemingly legal solutions which have been proposed.
I’m not sure what you mean by “magic,” but perhaps it’s worth noting that attempted coups by government actors and constitutional crises happen on a regular basis.
Again, assuming that’s true, it confirms what I’ve been saying all along – which is that the when people make theoretical arguments about why the Supreme Court could not act with legal impunity, – for example that they would not have jurisdiction, or that their jurisdiction could be stripped, or that the Court could be packed, and so on – such arguments are incorrect.
So it does not undercut my position in the slightest.
If the Supreme Court issued a ginned up order to release someone from local custody, I’m sure that Sheriff Joe, of all law enforcement people I am aware of, would be the most strident in calling BS. Who knows what the various officers of the state of Arizona would do or how the process would work, but I would expect that the state would take vigorous action to reject a writ that has no basis in the Constitution, legal precedent, or facts.
And if the state of Arizona did reject an unlawful order by the Supreme Court, what, exactly, is the Supreme Court going to do to enforce that order? Seeing as how Congress would probably begin an immediate investigation of the extraordinary actions ordered by the Supreme Court to place its justices out of the reach of local law enforcement, I would expect that Justice O’Connor would be impeached within a very short period of time after not only killing people but instigating a coup against the Constitution, the federalist principles of our government, and the basic framework of criminal justice extending back hundreds of years.
With the greatest of exasperation, I repeat: let’s get real here.
“Extraordinary claims require extraordinary evidence”, you’re making an extraordinary claim here–that the Supreme Court could act with legal impunity. The Supreme Court has been ignored several times in history, nothing happened. Supreme Court justices have been impeached, they’ve been forced to resign.
Since you’re hung up on the concept of theory, imagine your hypothetical rogue supreme court. The President says “no, this is crazy” he orders the FBI, who report to the President and no office of the Judicial branch, to arrest all of the Supreme Court justices and put them under 48 hour detention in sealed confinement where they cannot be heard or seen.
The President declares that he is suspending the writ of habeas corpus, as he has determined a coup has been launched by the nine justices of the supreme court.
While the justices are locked away, unable to be seen or heard, no one can know what they are doing and they cannot know what we are doing. The President then gives a speech and asks Congress to remove them from office. Very shortly, the House impeaches them, and the Senate votes to remove each of them from office. They are then released. At that point they are not legally Supreme Court justices, so how they choose to interpret impeachment, or how they choose to rule on anything is null and void. Prior precedent establishes that when new justices have been sworn in, prior justices are ignored–this happened when Justice Douglas retired and tried to still participate in the court’s activities.
Under what legal theory would anything done in this hypothetical be unlawful? Answer: It wouldn’t.
The whole reason people, including other branches of the government, would not accept a Supreme Court taking on the robes of a dictator is that they would be undermining the rule of law. That isn’t theoretical. In fact, I’m beginning to think you don’t know what “theoretical” means.
I agree. The factual answer to the question in the OP is that in the real world the rogue justices would immediately be jailed, impeached, and removed from office. One might posit other theoretical outcomes, but these would be so unlikely to be effectively impossible.
I don’t think such a fanciful hypothetical can even be debated effectively. Since responses are going to be based mainly on opinion rather than argument, this is probably better suited to IMHO than GD.
To me, that’s the extraordinary claim (the Andrew Jackson
[quote]
(Worcester v. Georgia - Wikipedia) is not germane, for instance). I think rather that our political system has basically has always obeyed the Court and adapted to any decision. Even in the event of some outlandish Black Swan ruling, I think our country would strive mightily to achieve some formal sort of obedience while allowing existing processes, such as impeachment, to play out.
Well, I think “incorrect” is too strong; we are dealing with hypotheticals here, and my example was admittedly far-fetched. I would say rather that the assumptions behind such arguments are harder to think through than they may seem on the surface. I note, for instance, that I was simultaneously twitted by one person for being too rational and told by another to “get real,” and that Colibri says that he agrees with Exapno and then goes on to disagree with him.
Where I think Exapno and I are differing is in the difficulty of drawing a line between real court decisions and “magic” – there isn’t any red light that goes on over the Justices’ head to announce that they’re going rogue. Our gut reaction tells us that there’s a difference between the Justices finding a right to abortion or corporate personhood in the Constitution and them finding a right to judicial immunity from criminal prosecution, but what is that difference?
Remember that the Supreme Court recognized/created absolute immunity from civil liability for judges in connection with their judicial actions, even when those actions entirely depart from established process and substantive law. In Stump v. Sparkman, the Court held that a judge could not be sued for damages for ordering a girl to be sterilized, even though he never opened a case, afforded no notice or process, and cited no law. To date it has not extended that liability to criminal prosecution – a judge can’t throw a gavel at someone and escape assault charges – but in light of Stump, I think it’s hard to say that it’s completely unimaginable that the Court might afford immunity to a judge from criminal liability as well (at least for acts committed while on the job). Murder scenarios like mine or the OP’s are of course outre, but what about lesser crimes? Why is it not assault for a judge to order Bobby Seale to be bound and gagged, while it would be assault to order him to be clubbed with a truncheon?
Take the procedural element out of my hypothetical, and assume that O’Connor was convicted in due course and filed and briefed her habeas application properly. Now it’s a properly-papered per curiam order freeing a former colleague without explanation. Can we explore whether the sheriff has to obey that order, or is that a “magical” scenario?
If you say “of course it’s magic, the Justices would never issue a nepotistic ruling like that,” then take murder out of the story. The plaintiff/petitioner is a corporation in which seven Justices own big chunks of stock. Its case is widely regarded as weak to the point of insubstantial, but those seven Justices refuse to recuse themselves, and they issue a ruling in the plaintiff’s favor that means a lot of money for the company. Is that self-dealing a “rogue” decision, and can the defendant accordingly refuse to pay the judgment?
Is that still too magical? Then suppose it’s only one judge who’s invested in that company, and he’s part of a 5-4 ruling in its favor. (What if he only bought the stock after the Court agreed to hear the case?) Suppose the decision is poorly reasoned and adopts weak arguments. Set aside whether the Justice is going to get impeached; can the defendant refuse to pay? Would that ruling be ignored? Or is it such ridiculous magical thinking to suppose that there might one day be one corrupt Justice, that we cannot even cogently argue over the issue?
A journey far afield begins with a single step, and sometimes those steps are interesting in themselves.
Such arguments require one to pick and choose what procedures and precedents will be followed. Which makes no sense. Actually I think jtgain put it best when he pointed out that reining in a rogue Supreme Court would require overruling a hundred years of accepted precedent. Which is fine, that’s what would happen. But it’s dishonest to pretend that you are not doing so. And mistaken to believe you are not doing so.
Again it comes down to the difference between theory and practice. In theory, there is no difference. Perhaps part of the problem is that posters like Ravenman have never read or studied the many many court decisions where the courts, including the Supreme Court, have really stretched the Constitution, to put it politely, and the rest of the country has followed those decisions.
No, it would be ignored because it’s too much of a stretch.
Do you agree that according to long established and accepted precedent, if Snnipe 70E says that the Constitution says X and the Supreme Court says that the Constitution says Y, it is Y which prevails?
In my scenario, the Supreme Court is never given a chance. They are arrested individually. While individually Supreme Court justices have some limited ability to issue writs for things (like habeas–which the President suspended in this case, a power granted to him by the Constitution), they cannot make formal decisions as individuals.
Even if somehow they were able to issue an order, the FBI legally has to obey the orders of the President. There is no legal mechanism for the FBI to tell the President “no.” Since the President, and his executive branch, cannot be forced to do anything by the Supreme Court, there is no clearly demonstrated legal concept that the President would be breaking any laws by having his agents ignore a court order. In fact during the whole Watergate scandal, there was a strong likelihood that Nixon was going to ignore a Supreme Court order to release his tapes, asserting executive privilege. The reason he didn’t is because he saw the writing on the wall and knew the public outcry was already so great against him there was nothing he could do to save his Presidency. But everyone who was watching that scandal unfold felt there was a looming constitutional crisis. There is no “theoretical” solution to “does the President have to obey Supreme Court orders?”
No one doubts the ability of the Supreme Court to make decisions, but you can’t show me a single line from the Constitution that makes it clear cut that the President is barred from arresting all the SCOTUS justices–and giving his officers specific instructions to ignore any orders or commands given by the SCOTUS. Remember the FBI is an executive branch agency, they do not at all report to judicial branch officers, they report ultimately to the President. There is no legal mechanism in our constitution saying the SCOTUS can give the executive branch authorities commands.
The executive is called that because his branch executes things.
The judicial branch has the power to basically produce documents containing things like court decisions, warrants and etc. Those documents are just pieces of paper. Under our constitution the only Federal branch that has the legal authority to execute those decisions is the executive branch.
The problem with the way you are arguing is you’re asserting vast powers for one branch that are not at all supported by the Constitution, and that are instead based on how you interpret their “unenumerated” powers could be used. My counter point is that the executive also has vast powers that are not clearly spelled out in the constitution.
Nothing in my scenario I laid out is anymore “theoretically illegal” than your scenario of the SCOTUS justices exempting themselves from murder charges and things of that nature.
If we have to accept that your theories are legally correct, there is nothing at all less valid about mine: that the executive has sole authority to order executive officers to do things, and if he gave orders that made it so SCOTUS decisions could not be issued or not delivered, then it’d basically be like they were not happening at all. Show me in the Constitution where the President would be prohibited from arresting each SCOTUS member in an emergency, under his powers to quell insurrection–a power which includes his ability to suspend writs of habeas.
Even more, if the entire SCOTUS was actually in the Supreme Court building, what would stop him form surrounding it with the military and declaring it an area “in a state of insurrection” against the United States, and ordering that any person exiting the building be shot on sight? In that scenario, whatever the Supreme Court’s rulings, they could never actually be “delivered” to the executive, so how could he be bound by them? Any messengers sent with their decisions would be shot dead before they could leave the building. Meanwhile Congress would be legally removing them from power–a move they could not stop through court decisions since none of their decisions could be delivered to anyone.
Basically where you and Tom Tildrum have made a fatal error, is you’re presuming powers not spelled out in the Constitution, that only exist by custom, can be extended to logical absurdities “in theory.” If that is the case, then it opens the floodgates to “whatever I want” type magical scenarios, where the executive can order his agents to do anything because he has sole power to order executive branch agents. That is a significant power, that could easily trump the ability to bang a gavel and write out orders that could be destroyed or blocked from delivery by the martial power of the President.
The whole concept that the executive even has to obey Supreme Court decisions at all is 100% based on custom, not the law. The only actual legal enforcement mechanism for that custom is impeachment, and it’s not really clear cut that the President would be acting illegally if he simply ignored the Supreme Court entirely, at least not if we’re going based on this theoretical framework of crazy expansions of customary powers.
No, because your scenario postulated a “hypothetical rogue supreme court” being reacted to by the President. So such a Court could anticipate the President’s reaction and issue an opinion which says according to their most recent reading of the Constitution, each Justice has the power to free anyone from arrest or jail and the President lacks the power to suspend such power.
Anyway, while I am sure it is satisfying to you to attack strawmen mercilessly, I am not interested in such an exchange. I asked you to show where I had made the claim you say I made or to admit I had said no such thing and apologize.
You did neither. Of course I have never claimed that the Supreme Court could act with legal impunity. On the contrary, I have said from the very beginning of this thread that a hypothetical rogue Supreme Court would be jailed and ignored.
As I alluded to with Exapno, I prefer that people respond to what I actually say – not what they wish or imagine that I say.
I think I can actually see where the OP is coming from on this but his example is so outlandish that the answer is undebatable. The better question would be what if SCOTUS went rogue and started making bizarre and unsupportable decisions - dare we say unconstitutional. Some would argue SCOTUS already has in some or all of:
The Slaughterhouse Cases
Wickard v. Filburn
Kelo v. New London
South Dakota v. Dole
Bush v. Gore
etc.
And with the stare decisis doctrine, the fact that the Slaughterhouse Cases ruling completely disemboweled “privileges and immunities” or how Wickard (and SD v Dole) gave Congress the power to do whatever it wants despite the Tenth Amendment is allowed to form the basis of new decisions. And once SCOTUS declares something constitutional, we either need a new constitutional amendment or bitch and moan about it.
So suppose after watching Elysium (warning spoiler), SCOTUS rules that under the 14th Amendment all people in the world are American citizens or that the 4th Amendment doesn’t apply if your annual income is less than $500,000 per year or that Congressional district lines must be drawn by train lorikeets. What would happen?
I don’t play semantic games with people that cry and take their football home. No one here is denying that you’ve acknowledged “as a matter of fact” that if the SCOTUS went rogue, we’d just ignore them and remove them.
We’re actually responding to your argument, which is that “in theory, there is no legal mechanism that would allow for that without violating the constitution.” But you aren’t actually responding to those arguments either. Explain what you’re doing here again? Other than just making a fool of yourself?
These questions really aren’t that interesting. Their decisions would be ignored and they’d be removed from power.
Anyone arguing that “in theory, the SCOTUS could just block any action by declaring it unconstitutional” ignore the fact that the Constitution is the ultimate arbiter of how the three branches work not the Supreme Court. We use the Supreme Court as our “chief interpreter” but the branches are fully empowered individually to decide how to react when another branch is breaking the rules.
Ignoring a SCOTUS decisions is not only the practical outcome, it is legal and proper. There is no constitutional argument that says the legislature or the executive have to listen to any and all SCOTUS rulings. Especially since the branches themselves are the ones who would have to enforce it.
If the President ignores a SCOTUS ruling, the only legal mechanism to stop him is impeachment, and it’s unlikely his ignoring the ruling would actually constitute a crime in any case so it wouldn’t be inherently illegal–but it might be unpopular enough that he gets impeached. If the legislature was not so inclined, then oh well–the SCOTUS has no power to impeach anyone.
That is a legitimate argument and you’ve presented it well.
That is also not what we were arguing about above. Habeed presented a scenario that was clearly over any line. And it was dealt with properly in the first response from brazil84.
We diverged, I think, when some tried to go down your path to marginal and more plausible what ifs without actually spelling them out, and in fact by keeping to the original bit of nonsense as the example.
The Constitution is a framework, not a user’s manual. It cannot spell out the procedures to take in every possible scenario. The answers are not in the back. All we know for sure is that, as I said above, the three branches are co-equal and no branch has ultimate powers over the others. Ordinary problems in the gray areas are dealt with ordinarily, with compromise and negotiation and politicking. Extraordinary problems are fortunately extremely rare. In every case so far, one branch has ultimately backed down for the good of the country. That is the sum total of the theory and practice that is relevant.
What happens if one side refuses to back down? We don’t know. My opinion is that it’s ridiculous and futile to make up an arbitrary scenario and try to resolve it through logic. The best answer for Habeed was “The justices would simply be ignored and locked up.” He didn’t even bother to return to this thread. The rest of us should follow his example.
