# 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:** 11\ **Page:** 3
**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 19, 2022, 1:27am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/41 "2022-11-19T01:27:51Z")
Unfortunately, I’d have to argue that using the letter of the law to thwart your political enemies is exactly the norm. ---
**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 19, 2022, 4:55am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/42 "2022-11-19T04:55:11Z")
> [@Exapno\_Mapcase](#): > > Unfortunately, I’d have to argue that using the letter of the law to thwart your political enemies is exactly the norm I would disagree. I don’t feel norms are what’s the letter of the law; they’re customs that have been followed. So something can be legal but not a norm, a norm but not legal, both, or neither. The Republicans’ action in 2016-2017 was not the norm over Supreme Court vacancies. There have been previous occasions when the President belonged to one party and the majority in the Senate belonged to the other. But on all of those occasions, an agreement has been reached between the parties and the vacancy was filled. ---
**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 19, 2022, 7:16pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/43 "2022-11-19T19:16:41Z")
Norms are indeed slippery. It was the norm in this country for Presidents not to run for a third term. Roosevelt’s doing so infuriated many, mostly Republicans, and upset many more. Yet he won hugely, down only a bit from his earlier runs. After Republican wins in Congress in 1946, the 22nd Amendment was passed and Republican states started ratifying it. 1948 went against them but 1950 did not and the Amendment was ratified on February 27, 1951. Cultural norms do bleed over into political norms. It was the norm for christian beliefs to be codified in laws. It was the norm to blatantly discriminate against minorities. It was the norm to hate immigrants. It was the norm to consider women as less equal than men. It was the norm that men who injured or killed their wives’ lovers were acquitted by juries. It was the norm that American Indians were not citizens, until 1924 when they were. Norms aren’t necessarily good things, any more than laws are necessarily good things. Norms are also hard to define. They fall into the “I know one when I see one category.” Absolutely, McConnell gleefully denied tradition when he held back on replacing Scalia. And his rushed confirmation of Barrett was breathtakingly hypocritical. I once wouldn’t argue about whether he broke the norms on this. Today, I’m forced to concede that the norm of political courtesy between parties has been abandoned, certainly by the Republicans if not the Democrats. Gut the other side is their only principle. The insanity of announcing an impeachment of Biden before offering an actual legal reason is a fine example. Attacking illegally hasn’t been working out so great for them. Doing so within the law, especially at the state level - see abortion, education, voter participation, religion - has, reversing a half century of the new norms. I’d like to think that this era is too unstable and extreme to last forever. Meanwhile we have to live day by day through it, harking back to the era when bare-knuckle politics was itself the norm. ---
**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 20, 2022, 12:23am UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/44 "2022-11-20T00:23:40Z")
> [@Exapno\_Mapcase](#): > > I’d like to think that this era is too unstable and extreme to last forever. I worry about where we’re heading. The Republicans are ignoring history if they think they can keep knocking the rule of law down while counting on it to remain strong enough to protect them. ---
**Author:** ![Johanna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johanna/32/8318_2.png) [@Johanna](https://boards.straightdope.com/u/Johanna)\ **Post date:** [November 21, 2022, 7:06pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/45 "2022-11-21T19:06:49Z")
> [@gnoitall](#): > > SCOTUS is the final arbiter of what the constitution is and says. There is literally no one who can gainsay them. Been thinking about this. The Chief Justice has ways to informally discipline the other 8 justices if they get out of line. But there is no one to oversee the CJ except God. I thought it was weird a few decades ago, reading that under Malaysian law the sultans were subject to no legal authority except God. This law was changed after an infamous case when a sultan beat his caddy to death with a golf club, so now sultans can be prosecuted for crimes. I _had_ thought that weird until I reflected that the same is true of our American Chief Justice. The only one in the whole government with that godlike status. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [November 21, 2022, 7:10pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/46 "2022-11-21T19:10:53Z")
> [@Johanna](#): > > Been thinking about this. The Chief Justice has ways to informally discipline the other 8 justices if they get out of line. But there is no one to oversee the CJ except God. Can’t he, plus three other Justices, be mundanely outvoted by five Justices? Can’t he, and any other Justices, be impeached and removed from office? ---
**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 21, 2022, 7:19pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/47 "2022-11-21T19:19:07Z")
I thought the Chief Justice has almost no power compared to other justices on the court. What can he/she do to chastise other justices? Do we have examples of them wielding Chief Justice power to keep others in line? (really asking) IIRC is the chief justice can say who writes the majority opinion. That’s about it. ---
**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 21, 2022, 7:30pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/48 "2022-11-21T19:30:06Z")
> [@Johanna](#): > > I thought it was weird a few decades ago, reading that under Malaysian law the sultans were subject to no legal authority except God. This law was changed after an infamous case when a sultan beat his caddy to death with a golf club, so now sultans can be prosecuted for crimes. > > I _had_ thought that weird until I reflected that the same is true of our American Chief Justice. I really don’t think that the Chief Justice is legally allowed to beat people to death. And, as has been pointed out, it takes at least 5 of them to even declare the death penalty, in general, constitutionally legal or otherwise. Rather belatedly: > [@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 (someone here I’m sure will tell me if I’m wrong!) > [@Whack-a-Mole](#): > > If I had to pick one I would say Korematsu v. United States > [@Little\_Nemo](#): > > 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 I knew people would tell me if I was wrong! ---
**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 21, 2022, 7:38pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/49 "2022-11-21T19:38:28Z")
To be fair I said @DrDeth was wrong. It’s telling that I got no response. @DrDeth is not shy about telling me why I am wrong. 🙂 ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 21, 2022, 7:45pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/50 "2022-11-21T19:45:02Z")
What was I wrong about? ---
**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 21, 2022, 7:56pm UTC](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053/51 "2022-11-21T19:56:43Z")
> [@Whack-a-Mole](#): > > It’s telling that I got no response. To be fair, it took me quite a while to get around to it. And I was also being wrong on the same subject. [Previous page](https://boards.straightdope.com/t/does-the-scotus-make-law-even-if-its-against-the-constitution/975053.md?page=2)