You have a keen sense of humor.
Which do we believe is more important:
A) innocent until proven guilty in criminal trials, requiring unanimous agreement on guilt
B) constitutional, requiring unanimous agreement on being unconstitutional
Or are these equally important? It’s the only place I can think of offhand where unanimity is required by law. Although, the analogy is not perfect. Jurors, ostensibly, are only to rule on the matter presented before them by the prosecution and defense, while justices are free to rule on the case in any way they see fit—I mean that generally they are free to come up with any reason for their ruling, they’re not bound necessarily by the oral arguments. Or is that going to be verboten, too? (And in the process will we be sure to somehow eliminate jury nullification…?)
What if we go the other way? I mean, why not presume congress is a bunch of fascists, and have the court assume unconstitutionality, and only unanimous agreement on constitutionality could succeed? It would be in the spirit of limited federal authority.
So, then you don’t think flag-burning should be considered Constitutionally protected speech?
Yes that’s correct on both accounts. The judicial branch has assumed too much power in our society, IMO. Regarding the first question I don’t see what the voting procedure in the legislature has to do with that of the judiciary. They are not the same institution.
Why does that matter? If there is honest disagreement about the constitutionality of a law then obviously it’s not clearly unconstitutional. Why shouldn’t judges defer to elected officials in such cases?
Why shouldn’t it be higher?
To be clear, the problem I’m trying to address is the move away from judicial nullification being an extraordinary act to a commonplace part of the political process. How would the proposal worsen that?
This seems to assume that the ultimate authority in legislation belongs not to the legislative branch but to the judicial branch. Putting appointed officials over the people’s representatives seems backwards to me.
I don’t see how this is so. There are plenty of unanimous decisions nowadays and presumably requiring unanimity would encourage consensus building.
Separation of powers requires that authority be split between governmental entities and not that it be neatly divided into completely separate spheres. Checks and balances work because the branches of government have their fingers in each other’s business. The appointing and confirming powers are checks on the judicial branch.
As it is I think the court is deficient in consensus-building, and I always thought that was where stability in the law comes from, so I’d like to see that. But I don’t think requiring unanimous consent gets you consensus building in all cases. You’re also allowing any justice to torpedo an agreement that overturns a law for any reason. I think your idea would encourage consensus-building in cases where consensus already happens (cases where most or all of the justices agree) and discourage it in cases where consensus isn’t going to happen (if eight of the justices agree and the ninth is inflexibly opposed, there’s nothing doing). The 6-3 proposal makes more sense in that regard. But I don’t think we need special proposals that apply only to laws being overturned.
You want to give each and every Supreme Court Justice an absolute un-appealable veto to the court’s power to declare a law unconstitutional?
No thanks.
BTW, this means (in theory) that Congress could buy one justice to backstop their legislation, and protect the justice from impeachment even if they delivered their payoffs on national TV.
There’s, literally, a whole world of variations to choose from. Just as no country has copied the US Congress/President model of democracy, no country - afaik - has followed the US model for appointing Supreme Court judges. Japan comes close - but that requires the electore to approve the appointment. Across the spectrum, in the UK it’s treated like a career promotion insomuch as fellow judges determine the appointments. Obv. all kinds of options in between.
Read the post again. I proposed that a 5-4 decision in either direction* would result in overturning the law, because it isn’t sufficient consensus that the law is indeed consitutional.
*or, in general, any less than 2/3 “uphold” vote
The ultimate authority is the Constitution. Overturning a law if it has less than a 2/3 majority saying “yes, it’s consitutional” insures that only laws that accord with that authority, beyond reasonable doubt, remain in force.
Doesn’t cut it. At some point, the people who select the judges are political, and so you’re just kicking the can down the road. Democracy is political. Removing the political from it removes the democracy.
I was thinking of consensus building as an ongoing process rather than just for crafting particular opinions. So that when the time comes when a really horrible law is passed justices are prepared to act in concert. I’m presuming the judiciary would become less political since there would be less payoff for naked partisanship. I see your point about a single stubborn justice but once you move to a 2/3 majority you are talking needing four like-minded justices to get your way sometimes instead of always needing five. That’s a big deal for individual cases of course but hardly enough to alter the partisan culture in the judiciary.
Why not? (Unlikely theories aren’t much use in evaluating proposals.)
The ultimate authority is the people themselves. But since they, like the Constitution, don’t do much legislating I think it’s safe to limit the choices to the institutions involved. Of them why shouldn’t the legislative branch have the last say in legislation? And your proposal doesn’t ensure good outcomes. Neither does mine. Neither does what we have now. There is no way to be sure. The choice is not between a perfect system and lesser ones. The choice is only in how to limit the bad outcomes.
I have no response to this. I just think it’s a great quote!
It sounds like you’re saying that the Constitution has a clear, unambiguous reading. Over 220 years of non-unanimous decisions would imply that you are wrong.
I look at SCOTUS kind of like Churchill looked at democracy - the worst possible solution, except for all of the others.
I don’t always agree with the court (less now than before), but I’m happier with them there then having the Congress/President (much less 50 state legislatures) being the major arbiters of constitutionality.
And I’m not sure how your unanimous rule would affect would lower courts could do, or how opposite opinions (back to that unambiguous thing) would be resolved.
Not really. Supreme Court justices are pros. No matter what you’ve heard from politicians and talking heads, the Supremes are really smart and they try to arrive at the correct legal conclusion. (It’s probably also worth pointing out that Scalia and Ginsburg are reportedly good friends.)
Are we looking at the same list? I count 3 separate decisions, not including separate concurrences/dissents.
I’m not saying that. I’m saying I don’t see how honest disagreement over interpretation is relevant.
I don’t agree. I would rather see authority returned to the legislature where it is amenable to popular influence.
Yes that would get sticky. The only way I can see to deal with this would be to set up a special constitutional court or to give the Supreme Court original jurisdiction.
Preetty much everything in life is political. The points are (a) it doesn’t have to be party political (b) it doesn’t have to be the choice of a single person and, (c) the appointment shouldn’t be within the realm of any body or person with already so much authority.
LIke I say, most of the rest of the world does understand that.
There is an alternative that would not be party political nor unduly politicise judge’s decisions or force them to campaign (IMO): if judges were selected from their peers. Not appointed by the current SC, not appointed by Congress, but their own peers. Democracy of the workplace.
Political but not party political? That sentence has no meaning to me. If you are political, it means you have some kind of political values or agenda or ideology or constituency. Whether that’s manifest in a party label hardly makes any difference.
I’m all in favor of the proposal.
So long, of course, as it is matched by a requirement that Congress can only pass a law by unanimous vote. After all, if there is dissension in the law-making process, it seems clear that this means the law might not work to the interests of all the people. So Congress should be forced to fix it.
Are people seeing some connection between voting in legislatures and voting in judicial panels that I’m not aware of?
You make a decision based entirely on the merits and not with reference to some collective dogma or ideology i.e. ‘this is the best person for the job’ vs. ‘this is the person who will best reflect the agenda of my political tribe’.
That’s a huge difference. It can’t be that difficult to grasp given it’s how a large chunk of the world tends to appoint senior judges.
They have to be confirmed by the Senate in the US, so it’s not just one guy. Presidents don’t usually send someone up who isn’t going to be confirmed.