# Does the SCOTUS make law even if it's against the Constitution? **URL:** \ **Category:** Great Debates\ **Created:** [November 16, 2022, 8:28pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053 "2022-11-16T20:28:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Clu-Me-In](https://avatars.discourse-cdn.com/v4/letter/c/dfb087/32.png) [@Clu-Me-In](https://boards.straightdope.com/u/Clu-Me-In)\ **Post date:** [November 16, 2022, 8:28pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/1 "2022-11-16T20:28:46Z")
When a member of the U.S Supreme Court follows his religious conscience to deny what one considers an indivudual right, is that unconstitutional or is whatever the majority of the SCOTUS agree on the correct interpretation of the Constitution? ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [November 16, 2022, 8:35pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/2 "2022-11-16T20:35:17Z")
> [@Clu-Me-In](#): > > When a member of the U.S Supreme Court follows his religious conscience to deny what one considers an indivudual right, is that unconstitutional or **is whatever the majority of the SCOTUS agree on the correct interpretation of the Constitution?** - That’s pretty much their function. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 16, 2022, 8:36pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/3 "2022-11-16T20:36:47Z")
The court has made some notoriously bad decisions in the past but they stood until congress makes a new law that affects it or an amendment that over rides that decision or it becomes moot (such as Japanese-American detention camps in WWII). ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [November 16, 2022, 8:38pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/4 "2022-11-16T20:38:32Z")
SCOTUS is the final arbiter of what the constitution is and says. There is literally no one who can gainsay them. Congress can make law around a ruling if that ruling is sufficiently narrow, but neither Congress nor the administration are supposed to override or disregard it. If it were to happen, it would be a constitutional crisis. Of course, as @Whack-a-Mole points out, there is the legislative mechanism to alter the explicit content of the constitution (amendment process), which could undo a ruling by making something explicitly constitutional. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 16, 2022, 8:42pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/5 "2022-11-16T20:42:08Z")
Andrew Jackson ignored the supreme court in _Worcester v. Georgia_ where the court ruled the Cherokee Indian tribe lived on land guaranteed them by treaty. Jackson sent troops in anyway and kicked the Cherokees off their land which led to the infamous Trail of Tears. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [November 16, 2022, 8:47pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/6 "2022-11-16T20:47:59Z")
Constitutional crisis, but Jackson was a strongarm and not really interested in constitutional norms (“John Marshall has made his decision, now let him enforce it”), and the people weren’t going to get exercised about a bunch of brown people getting shafted. Likewise, Lincoln’s famous arguments with Justice Roger Taney about the former’s suspension of the writ of _habeus corpus_ during the Civil War and his refusal to honor the court order restoring it. If your point is that the constitution is vulnerable to extra-constitutional force, that’s true of any form of government. Force, or the threat of it, trumps all, it you allow yourself to descend to it. The constitution doesn’t enforce itself. ---
**Author:** ![thorny\_locust](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thorny_locust/32/431_2.png) [@thorny\_locust](https://boards.straightdope.com/u/thorny_locust)\ **Post date:** [November 16, 2022, 9:38pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/7 "2022-11-16T21:38:34Z")
They’re not supposed to be “making law”. They can unmake laws, by declaring a law unconstitutional. Sometimes that has a similar effect. They’re certainly not supposed to decide in direct contradiction to the Constitution; and I don’t know that they’ve ever done so (someone here I’m sure will tell me if I’m wrong!) – declared that the government does have the right to quarter troops in citizens’ houses without consent, or that someone 24 years old and born in England can hold the office of POTUS, or that there’s no right whatsoever to free speech, or that all officeholders in the USA must be members in good standing of some specific church, for some examples. The problem is that people have wildly different ideas about what much of the Constitution means. What, precisely, is ‘the right to bear arms’? What speech, precisely, is covered under the Constitution, and does that right extend to corporations? Who, exactly, is a person entitled to Constitutional rights? And considerably so on. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 16, 2022, 9:53pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/8 "2022-11-16T21:53:38Z")
[Moderating] There’s really no discussion of this question possible within the bounds of Factual Questions. Moving to Great Debates. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [November 16, 2022, 10:27pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/9 "2022-11-16T22:27:55Z")
> [@gnoitall](#): > > SCOTUS is the final arbiter of what the constitution is and says. Well, that certainly is the prevailing legal theory amongst the Justices, and by and large the position the Court has carved out for itself, but for an alternative theory see _Departmentalism_. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 16, 2022, 11:10pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/10 "2022-11-16T23:10:02Z")
Outside commentators can make any comments they want and develop any theories that appeal to them. Occasionally, some will filter outside their bubbles into the real world. Nevertheless, in our current real world the Supreme Court is untouchable except by impeachment. However they interpret the law is what the law is. All lower courts defer to that ruling unless and until the matter is brought up again. The rules applying to lower courts do not affect the Supreme Court. They can vote based on anything they feel like; if they are not writing a decision they do not have to announce how they decided. There are no rules governing recusal. The Constitution defines some areas in which they have original jurisdiction and others in which they act as an appellate court and that’s about the only restriction except that they have to act with “good Behavior.” Justice Samual Chase was impeached in 1804. [He won acquittal in 1805](https://www.senate.gov/about/powers-procedures/impeachment/impeachment-chase.htm) by arguing that the impeachment was based on his political opinions, not his behavior. Since then the Court has been sacrosanct. It’s extremely doubtful that impeachment of a Justice for applying their religious views will ever happen. Outside that slim chance, the Supremes live up to the name. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 16, 2022, 11:22pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/11 "2022-11-16T23:22:11Z")
Lower courts are bound by Supreme Court decisions, but what exactly that means leaves some room for flexibility. They have to follow all applicable precedents, but which precedents apply? There will always be some differences of fact between cases, and a lower court could always argue that some aspect of the case before them is sufficiently different than the case the Supreme Court heard that the precedent doesn’t apply. If a lower court does decide this, then the decision is likely to be appealed, and might even be appealed all the way up to the Supreme Court… but the Supreme Court might still agree with the lower court, especially if its composition has changed since the previous decision. And until and unless such time as the appeal does win, the lower court’s decision is binding. ---
**Author:** ![Bootb](https://avatars.discourse-cdn.com/v4/letter/b/e19b73/32.png) [@Bootb](https://boards.straightdope.com/u/Bootb)\ **Post date:** [November 17, 2022, 12:08am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/12 "2022-11-17T00:08:25Z")
> [@gnoitall](#): > > SCOTUS is the final arbiter of what the constitution is and says. There is literally no one who can gainsay them. Congress can make law around a ruling if that ruling is sufficiently narrow, but neither Congress nor the administration are supposed to override or disregard it. Please show us the part of the Constitution that says that. ---
**Author:** ![slicedalone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slicedalone/32/12515_2.png) [@slicedalone](https://boards.straightdope.com/u/slicedalone)\ **Post date:** [November 17, 2022, 12:22am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/13 "2022-11-17T00:22:52Z")
I can think of situations where the Supreme Court makes a unconstitutional act legal by NOT acting. Say a person who’s 30 years old runs for President, gets nominated, wins election, the whole while under various suits, appeals, etc. up to the Supreme Court who decline to hear the case, allowing the person to be sworn in and to serve as POTUS, despite the stipulation that he/she must be at least 35 years of age. Isn’t that making law? ---
**Author:** ![UDS1](https://avatars.discourse-cdn.com/v4/letter/u/e47774/32.png) [@UDS1](https://boards.straightdope.com/u/UDS1)\ **Post date:** [November 17, 2022, 12:46am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/14 "2022-11-17T00:46:57Z")
> [@Clu-Me-In](#): > > When a member of the U.S Supreme Court follows his religious conscience to deny what one considers an indivudual right, is that unconstitutional or is whatever the majority of the SCOTUS agree on the correct interpretation of the Constitution? “Religious conscience” is a giant red herring here. It doesn’t matter what the motivation of the individual justice is; the meaning of the Constitution is the meaning expressed in Supreme Court judgments. And “what one considers to be an individual right” is also a red herring. The fact that “one” considers something to be an “individual right” has zero bearing on whether it is, or is not, a right guaranteed by the Constitution. For that you look to the text of the Constitution, as authoritatively interpreted by the Supreme Court. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [November 17, 2022, 12:47am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/15 "2022-11-17T00:47:42Z")
> Does the SCOTUS make law […] In my opinion, the SCOTUS never makes law ever. > [@Clu-Me-In](#): > > When a member of the U.S Supreme Court follows his religious conscience to deny what one considers an indivudual right, is that unconstitutional You need to define who “one” refers to (me? The Justice?) and what you mean by “individual right” (statutory right? Constitutional right? Customary right?) > [@Clu-Me-In](#): > > is whatever the majority of the SCOTUS agree on the correct interpretation of the Constitution? No. That would be the _official_ and _authoritative_ interpretation, not necessarily the correct interpretation. I decide what is the correct interpretation, thank you very much. : ) > [@slicedalone](#): > > Isn’t that making law? IMO no. > [@slicedalone](#): > > I can think of situations where the Supreme Court makes a unconstitutional act legal by NOT acting. I disagree. An act is presumed legal to begin with. > [@slicedalone](#): > > Say a person who’s 30 years old runs for President, gets nominated, wins election, the whole while under various suits, appeals, etc. up to the Supreme Court who decline to hear the case This isn’t a legislative act anyways. ~Max ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 17, 2022, 7:38pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/16 "2022-11-17T19:38:18Z")
Exactly what decision has been done that is “against the Constitution”? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [November 17, 2022, 8:12pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/17 "2022-11-17T20:12:00Z")
Whenever the Court decides a constitutional question with a recorded dissent, there’s going to be a substantial number of people who believe that the Court has issued a decision against the Constitution. (Even in a 9-0 decisions there’s likely to be a less substantial number of people who have that belief). For me, it’s probably the most persuasive reason for our acceptance of judicial rulings. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 18, 2022, 1:59am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/18 "2022-11-18T01:59:15Z")
> [@Falchion](#): > > Whenever the Court decides a constitutional question with a recorded dissent, there’s going to be a substantial number of people who believe that the Court has issued a decision against the Constitution. I have not seen many cases where the “court decided against the Constitution”. Even this recent foolishness or dumping Roe vs Wade, which altho was one of the worst decisions in recent memory- did not go against the text. Even proponents of Roe admitted it was breaking new ground. The Coach Prayer? Right to Free speech vs Establishment of Religion. Again, not happy with the decision. but it did not go against the text. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2022, 2:05am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/19 "2022-11-18T02:05:43Z")
> [@DrDeth](#): > > Exactly what decision has been done that is “against the Constitution”? If I had to pick one I would say [_Korematsu v. United States_.](https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-korematsu-v-us) Not sure how that one can be squared as constitutional. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 18, 2022, 2:22am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/20 "2022-11-18T02:22:49Z")
> [@thorny\_locust](#): > > They’re certainly not supposed to decide in direct contradiction to the Constitution; and I don’t know that they’ve ever done so The 14th Amendment explicitly stated that everyone had the right to equal protection of the law, both state and federal. There was a prolonged period when discriminatory laws were enacted which targeted black people. Several of these laws were challenged before the Supreme Court but the court did not declare them unconstitutional. [Next page](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053.md?page=2)