Does the SCOTUS make law even if it's against the Constitution?

I would say no, if they allowed this person to hold office by declining to hear the case. In such a situation, they would have the option of hearing a similar case in the future and declaring that the person is ineligible.

This is not completely theoretical. The constitutional age limit for Senators is thirty. Despite this, four men have been sworn is as Senator before they reached the age of thirty. The Supreme Court did not act to remove them from office.

But I don’t think anyone could argue that by not acting in these past situations, the Supreme Court has endorsed the legality of people under thirty becoming Senator.

Two points:

  1. as far as I know, no court challenge was brought to any of those four. The Supreme Court can’t be said to have failed to act to remove them, if the issue was never brought before them.

  2. The age requirement for the Senate might be an example of “departmentalism”, cited above by @ASL_v2.0 : that the Senate is the judge of its own constitutional requirements, and therefore it is up to the Senate to refuse to seat an under-30 person until they have qualified by reaching age 30.

Perhaps I don’t know what you mean by “against the Constitution.” If we’re imagining a situation in which the Court explicitly announces that its decision is unsupported by the Constitution and that, instead, it is enacting its own policy preferences, then sure, that’s pretty rare. The closest example I can think of probably is Korematsu – not because it was offensive and wrong (although it was) but because it was based in large part on the idea that Constitutional protections needed to give way in the face of national emergencies.

But those are pretty rare (I can’t think of any others) and, I suspect, not what the OP is talking about. Rather, when the Court concludes that the Constitutional prohibits/permits/requires a certain action, the people who disagree with that conclusion might reasonably say that the Court acted “against” the Constitution (which, in their view, does not prohibit/permit/require the action).

Possibly Wickard v Filburn. SCOTUS had numerous times said the laws expanding ICC were unconstitutional then under threat of court-packing those laws are magically constitutional.

Yeah. “SCOTUS makes law” is a standard buzz-phrase from one side of the aisle.

“One” = a human being. An American citizen. You or I.

But in some cases “one” may be a corporation based in the United States, or a human being who is not an American citizen.

I’d put Wickard in the ordinary category (the same category as most cases). By its own terms, it’s tethered to the Commerce Clause and the Fifth Amendment’s Due Process Clause.

What makes Korematsu remarkable is the fairly explicit notion that this is unconstitutional, but the constitution must give way to the whim of the executive at times of great peril. It’s a notion that’s periodically reflected in the “not a suicide pact” arguments that come up – including in the First Amendment dissent that the statement is from – but it doesn’t generally prevail on its own terms.

I don’t think it’s fair to suggest that it’s only “one side” who claim that judges are imposing their own personal policy or religious preferences at the expense of the Constitution. It just feels that way because of the most recent court terms and the current court composition. Until recently, it was more commonly expressed from the other side of the “aisle.” But really, for hundreds of years, it’s a standard buzz-phrase by anyone who disagrees (either legally or as a policy matter) with a decision of the Court.

(The phrase SCOTUS makes law doesn’t bother me, but I guess maybe it’s something of a term of art. That’s not the same thing as saying the Court is legislating which is bad and always denied by the Court.)

Exactly. The Supreme Court takes the role of final arbiter of what the Constitution says, even though the Constitution doesn’t explicitly give them that power. Somehow even textualist justices forget that.

The would you put the Gold Clause cases in this category considering that they directly contradict the Constitution’s ban on impairing contract based solely on the idea that the government has plenary power over its currency - a power so basic it does not have to be stated and can override the Constitution?

I’m also curious how something like Kelo would fit in this where SCOTUS upholds a law that clearly has no basis in the Constitution but is justified by “Constitution creep” i.e. the slow drift of definitions of terms in the Constitution similar to ICC.

Some people have said for years that because Ohio was in their eyes not properly admitted to the Union in 1803, therefore a cascading series of events, representatives, votes, court cases, etc. were not valid.

For the more than 200 years since, the answer to them has been the equivalent of “go away, you bother me.”

The issue of the Court’s supremacy has in like manner been decided since Marbury v. Madison, coincidentally also in 1803. John Marshall’s ruling made the Court the final arbiter of the Constitution. Nobody has seriously disputed that since.

“We have always done it this way” is a shaky platform on which to run the most complex legal system in history, true. Norms, however, trump precedents. Courts overturn precedent freely and often. Norms are almost never trodden on. That people here can think only of wartime decisions that violate norms is telling. (I’d add some of the antiwar and anticommunist acts in WWI as being blatantly against the First Amendment yet approved by the Court. Some Civil War decisions might also fall into that category.)

The Court has historically hewed closely to what was publicly acceptable. Sometimes they got a bit ahead, as with the Warren Court, sometimes they lagged behind, as with the Hughes Court under Roosevelt. Both provoked threats to the Court’s standing and structure, none of which materialized in practice.

McConnel and Trump didn’t violate the norms to get favorable justices on the bench. The standard procedures of nomination and confirmation were followed to the letter of the law, if not the spirit. (Note that Trump-appointed justices and lower court judges have ruled against him in his many lawsuits.)

Ironically, what people complaining about the current crop of religious decisions are demanding is not adherence to two hundred years of norms but breaking them. Nobody should believe for one nanosecond that justices interpreting law to suit their religious beliefs is something new. Any non-christian can tell you that it too has been the norm since 1803, and before. Getting that to change would be an enormous good for the country as a whole. That won’t happen overnight. As with racial equality and other societal issues, the norm itself will have to bend slowly in the general population before the Court adheres to it.

This seems to say that the Supreme Court can find almost anything constitutional or un-constitutional and be able to justify that position.

Was there ever doubt about this any time in the past two centuries?

Well, you almost provided one fourth of an answer.

When a member of the U.S Supreme Court follows his religious conscience to deny what one [(either Max_S, Clu-Me-In, any other American citizen, or any other human being)] considers an indivudual right, is that unconstitutional [?]

My answer depends on whether “one” necessarily includes me, and the meaning of individual right.

Iff I think the Supreme Court denies someone an individual right contrary to my interpretation of the constitution, I would agree that the Supreme Court’s decision is unconstitutional.


But in Marbury v Madison, the Supreme Court ruled that the Constitution gave it the power of judicial review.

Oh wait…

I’d argue that McConnell’s refusal to accept any nomination from Obama after Scalia’s death and leave a ten month vacancy in the court represents a departure from norms.

To be fair…the government has accepted that role since the day the court granted it to themselves over 200 years ago.

I think it goes to the notion that whatever the court says is, ipso facto, the actual meaning of the constitution. It is whatever the majority of justices at that moment decide it is.

As such, there can almost never be an “against the constitution.” (within some reason…see Korematsu)

It does seem to be the logical place for judicial review. It would violate the principle of checks and balances to have Congress act as the reviewer of its own legislation. So I feel the British system wouldn’t work here in America.

I agree. It makes sense. Which I think is why everyone just nodded and agreed to judicial review when the court took it in Marbury v. Madison. It goes with three separate, but equal, branches of government.