It’s really not.
Well it is, in the sense that it means that as society changes (and becomes more liberal, let’s say), then the court will eventually become more liberal as well. Rulings from the past can be overturned.
But the Supreme Court only has the power conferred on it by the Constitution. If Congress prescribes “regulations” to limit its appellate jurisdiction, it should abide by the Constitution as well.
If it doesn’t, it is certainly within the power of the President (and some would say his duty) to ignore the Supreme Court if it oversteps its authority. It’s not unprecedented. See Jackson and Lincoln.
The point is that the body ultimately responsible for defining what the powers are is the SCOTUS. I disagree the President has such a right, otherwise he could just simply ignore any decision he dislikes.
And on the other hand, if SCOTUS is the ultimate arbiter of its own powers, then it could create unlimited power for itself.
In the situation you describe when a President ignores SCOTUS, Congress is there to break the tie with impeachment proceedings.
Obviously, neither of these situations should happen except in extreme circumstances, but surely you could conceive of a situation where the President would be justified in disobeying the Court.
Oh I certainly do. After all the executive is control of the coercive elements of a state and if the Judiciary really loses its head and declares itself a God figure then the Executive would be under a duty to act. Yet, these extreme scenarios are ultimately theoretical and there will be consequences to doing them which nobody wants to see. Which is why they will not happen.
The fact of the matter is that there is no real external check and balance when it comes to the Supreme Court. Nine unelected justices are appointed for life. 20-30 year terms on the court are not uncommon. There is no requirement of reappointment after 5 or 10 years to vest the life-long appointment as we have in State court systems. Absent a “high crime or misdemeanor” justices cannot be removed. There is no mandatory retirement age.
The only real check on the power of the Supreme Court has been the Court’s limitation of its own power by not intervening in political issues more properly left to the other branches of government. This internal check on the power of the Court has slowly, but surely, evaporated.
The idea that a check and balance exists because they have to wait for someone to bring a case before them to become involved in a particular issue is, in our litigious society, laughable. The fact that they were appointed by the President and confirmed by the Senate 20 years ago is no limitation on the Court’s power now.
Justices are also aware that their decisions, even when firmly consistent with the law, ultimately depend on the public’s acceptance of the court as a legitimate institution, as the court itself has no real enforcement powers. This knowledge serves as a pragmatic check in how they craft their decisions.
The authority of the Supreme Court is also diffused between 9 (or 8, as it is now) individuals with their own views and judicial philosophies, a fact that serves as another check in the system.
There’s another check that nobody has mentioned yet–the power of the purse. If SCOTUS went off the rails, Congress could say “No more money for you.” Without money to pay the janitors, clerks, security guards, etc., the Court would have to shut down.
Great answer … Congress holds the purse strings …
Also … Congress has the right to impeach and remove from the bench any justice … and it has happened in the lower courts … that’s a pretty strong inducement for judges to stay with the law … they can be fired …
And … the President appoints and the Senate confirms each judge … perhaps it’s a crap shoot for the District Court level … but by the time these judges advance to the appellant courts, they’ve been well documented and fully vetted … we’re just not going to see crackpots get that far …
I think the arguments that run basically “But the President and Congress aren’t performing their duties to check and balance the courts” is a separate question … this is how the courts are overseen … whether they are being overseen is left to the voters …
If a Russian judge strikes down an order by President Putin, that judge is immediately and forcibly retired … I’m not saying our system is perfect, but it’s better than the Russian system …
I don’t see that anyone else noticed or mentioned it, so I will:
The fact that Justices are there for life (or until they retire voluntarily) is itself one of the “checks and balances.”
If Justices could be "fired" by one of the other branches, or have their terms set by one of the other branches, then THAT branch would have the ability to rearrange the entire court at will.
As a side benefit, the people who are selecting Justices for nomination and approval, have to think carefully about the fact that those Justices will continue to be in place after THEY leave office as well.
Overall, this thread was started due to a misunderstanding of what the whole concept of checks and balances is about. It is not intended to be, nor is it POSSIBLE for it to be, PERFECT.
If nothing else, you might benefit from imagine actual physical balances. Envision a teeter totter, perfectly balanced across the axle at it’s midpoint. If you add a two hundred pound person to one end, and want to balance him/her, you need two hundred pounds at the same distance from center at the other end…but it doesn’t have to be in the form of another single person.
All three branches can cause distortions of the government in ways which will eventually be recognized as being unconstitutional. We've seen that just recently, where Trump's Executive Order caused big messes at airports, and interfered with a lot of peoples' lives, right away. After a relatively short time, a lower Federal court stopped it, but damage (distortion) had already taken place. Whether the Supreme Court addresses this or not, a lot MORE time will pass with the existing distortions in place, as well as effective counter distortions causing confusions, until it is finally resolved.
The checks and balances are not designed to check and balance everything INSTANTLY; they are designed to do so ULTIMATELY.
And finally, the entire Constitution itself, is not perfect, and was never intended to be taken as such. Hence the built-in ability to amend it. And the “checks and balances” are also not perfect, nor should anyone expect them to be.
As I alluded to 5 year ago, who is “they”? The Justices? 9 separate people? I assure you, no President and Senate has nominated/confirmed nine Justices. Washington nominated 10 and FDR, 8. Jackson, 6. So unless you mean the founding of the nation, no, no one nominated and confirmed all the justices, and definitely not in 1997.
This kind of thinking continues the fallacious idea that the Court acts as a unitary body with single thought and purpose. You might as well say Congress was appointed 230 years ago and never again.
I think if five Scotussers want to change an important law, there will be no trouble coming up with a deep-pocketed plaintiff arranging for them to hear a case.
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As for checks and balances to the Supreme Court, since Dear Leader’s rhetoric has led the way, I think Second Amendment solutions are now on the table for discussion. Isn’t there a rumor that Scalia’s heart attack was due to over-excitement caused by the voluptuous dominatrix BAMN hired for Scalia’s Final Send-off?
Congress could also impact the court by changing the number of justices that sit on it. It could be …3 and they could impeach the ones they don’t like. It could be 100.