After a lengthy debate that seems to swerve into all forums of the SDMB (I was amazed it stayed in GQ). I have a simple question. Just how much power does the SC have?
Do they have the power to blatantly disregard the constitution and make decisions that basically introduce new laws?
i.e. Do they have the power to demand all parents make a pilgrimage to Disney World with their kids because they somehow twisted the Constitution to require this? How far theoretically can this go?
The SC can not make new laws. Pretty much the only thing they can do is say, “this law is Constitutional, and this law is not Constitutional.”
The definition of “Constitutional” is, of course, up to the individual Justices. If a law is declared unconstitutional by the court, it’s still a law, but you could not prosecute under it because no court would recognize it as valid.
The Supreme Court also has “original jurisdiction” in conflicts between individual States, during which they act like a regular civil court. Those conflicts are not very common.
The Supreme Court has no power. It can’t pass legislation, it can’t enforce laws, it can’t arrest anyone, it can’t imprison anyone, it can’t seize property, etc. However, through precedent set during the early days of the republic, the executive and legislative branches rely on its interpretation of the constitution.
Well, to start with, we can tack Article III of the Constitution here.
Thoretically the SC cannot make new law or create new constitutional rights, however, interpretation of the law in the ever changing, murky waters of the real world can amount, in practice, to the construction of new law and newly discovered “rights” interpreted out of existing case law. None of this is surprising. The SC has to have the flexibility and power to interpret the law as it sees fit in order to function. There are times, however, IMO where they test these limits.
I think a good example of this is the Casey Martin, handicapped golfer case where the SC ruled that he had the “right” to use a cart in competition despite any PGA tour rules to the contrary. IANAL and my example may be askew in this case but it seems to me that by interpreting the ADA (or whichever applicable) case law regs and applying it to a competitive sport (which by it’s nature must discriminate between levels of physical ability) and deeming the requirement to walk without assistance discriminatory and not directly germane to the game and thus extracting a “right” to a cart for a less physically able golfer in competition they are in effect “making” law.
As an aside I did wonder if the SC as a crew of primarily 60 to 80 year olds might have had some native sympathy for Martin and his impaired mobility issues that corresponded to their votes.
Checks and balances are what our government is founded upon.
The answer to the OP is the Supreme Court has both a lot of power and almost none (at the same time).
As others have pointed out the Supreme Court interprets laws passed by Congress when they are vague and determines if some laws fall within the bounds of the US Constitution and need to be struck down altogether.
Sometimes the Supreme Court does seem to stretch a bit as they did in deducing privacy in the Constitution and determining that as a basis for a women to have a right to an abortion (Roe v. Wade). I support a woman’s right to choose wholeheartedly but even I have to admit the SCOTUS had to reach for that one.
That said the Supreme Court only has power because the other branches of government agree that it does. Back around 1830 Andrew Jackson wanted to kick some American Indians off of land the US government had given to them. The American Indians went to court and the SCOTUS agreed that the government could not forcefully remove the Indians from their land. IIRC Jackson made some comment to the effect of, “The Supreme Court made their decision, now let them try to enforce it.” At which point he sent in the troops anyway and kicked the Indians off of their land. (Note – I may have some of that wrong but I believe the gist of the story still stands.)
I don’t think a President could be so cavalier today but it does illustrate the point that the SCOTUS has no direct power.
Also, if Congress doesn’t like a ruling they can try to recraft a law to meet Constitutional muster or, in extreme circumstances, could change the Constitution itself (which is admittedly difficult to do).
Thoretically - based on Asgardian case law
Preview is our friend.
IAAL. Mole’s got it basically right (the principle, if not the story). The “let him enforce it” story is the epitome. In short, if we ever have to really find out the answer to this question, it ain’t gonna be pretty.
More technically, the rulings of the Supreme Court are to be respected by both other branches of government, subject only to their impeachment. They have zero military enforcement power but from a pure constitutional perspective the Legislature and Executive branches need to listen to what they say until/unless the sitting members are impeached or replaced (through death or resignation). This goes back to Marbury v. Madison.
The issue of whether you can just “outnumber” the current Nine by adding a few more Justices was flirted with, but never decided, in the days of FDR’s Court-Packing plan.
The USSCT has original jurisdiction given by the US Constitution as follows:
Justice Marshall in the case of *Marbury v. Madison * was the first case of interpretation of the Constitution by the SC, and that set the precedent that the SC has the power to interpet the Const. The Const. itself does not grant that power to the Court. As we all know, the Court’s interpretation of “interpretation” has been very broad. The biggest inroad has been the commerce clause. The Ct has found, until very recently, that even the slightest connection to interstate commerce is enough to allow the US Congress to pass laws that at first glance, or even a 2d or 3d glance, they don’t have the power. In only the last year or two, the Ct has stepped away from overbroad interpretation of the commerce clause.
The interpretation by the Ct is influenced by the socioeconomic conditions at the time and by the political leaning or other leanings of individual members. Thus we say so-and-so judge is conservative and so-and-so is liberal, etc. Knowing this, predictions can be made as to the final decision by the Court.
In the recent presidential election, everybody predicted a 5-4 vote for Bush since the Ct is comprised of 5 Republicans and 4 Democrats. No surprise there. Sometimes, however, a justice will surprise everyone and vote contrary to his political leanings or other leanings as gleaned by previous cases.
Now, this is a seperate question (can you see I have a little free time tonight?). I would say – theoretically – yes.
My five-year old child hires a lawyer to sue me (or names me in a declaratory judgment action) stating that she, as a child, has a right to go to Disney World.
The federal Distict Court says “hogwash”, sanctions the attorney, and dismisses the case. She appeals.
The Court of Appeals says “double hogwash”, doubles the sanction for filing a frivolous appeal, and affirms the dismissal. She appeals.
The SCOTUS reverses and renders judgment favor of my five-year-old. Unless I’m hoping for impeachment, a rebellion by some other branch of government (or the local U.S. Marshals), I’m on the phone to Continental, but quick.
It’s theoretical, you say, and ludicrous. But under the Marbury v. Madison world of the last two hundred years, that’s the way the cookie crumbles.
The fact that the SCOTUS has no “effective” power does not mean they can be legally disobeyed. In the same sense you can say the President of the US has no effective power if the military decide to not follow his orders. The whole system is based on the principle that every authority will follow the law. If that falls through, then the only ones with real power are the guys with their fingers on the trigger.
The Supreme Court of the United States is given the following power:
Now, one might ask what this really means. Several posters already have pointed out that this “power” exists only to the extent that the other branches of government allow it to exist. This is true, but all that is saying is that ANY government only has power to the extent that others let it. If, for instance, the Executive and Legislative branches ignored laws passed by Congress, then what “power” would Congress have? And if all citizens in the U.S. decided to ignore the federal government, what power would any of the branches have? None, of course.
But, obviously we didn’t go to the trouble of creating a Judicial Branch in the Constitution just to ignore what it does, so we must take at face value that the “judicial power” of the U.S. is vested in the Supreme Court and the currently established inferior courts. We also know that this judicial power is a limited power, that is, unless a case falls into one of the categories outlined in Section 2, it can’t be heard by the federal courts, and Congress can’t expand that power by legislation (Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). The Supreme Court has some limited original (trial) jurisdiction; mostly it is an appellate court.
Now, to call it an appellate court does not answer any power question, because it doesn’t establish what can be appealed to the Court. It was Marbury v. Madison that established that, at a minimum, when presented with a case that drew into question the constitutional validity of acts of the other branches, the Court had the power to determine that validity. Of course, this makes sense. If judicial power doesn’t include righting wrongs by the other branches, how, then, would those wrongs be righted? The President of the United States refused to deliver Mr. Marbury’s commission, which he was obligated by law to deliver. If Mr. Marbury couldn’t go to a court to obtain a determination that this was wrong, how would the power of the Executive be kept in check? Similarly, Congress attempted to expand the federal jurisdiction beyond the limits established in the Constitution. If the courts weren’t able to determine that this was an action beyond the powers of Congress under the Constitution, what check would there be on the power of Congress?
Of course, it isn’t the power of the Court to review constitutionality that causes people to be upset, it is the way the Court determines what the Constitution means that causes all the uproar. No one will assert with hindsight that the Court always does what it should; did the nation really have to suffer 60 years of separate but equal following Plessy v. Ferguson? Should the Court have upheld laws against bigamy despite the fact this attacked a fundamental tenet of the Mormon Church, seemingly in violation of the First Amendment? But in every controversy, it should be kept in mind that there are two sides of thought, and that the side with the majority of justices is rarely a side that has no support among the people of the country.
Thus, it would be substantially incorrect for anyone to assert that the Supreme Court has ever “blatantly disregard[ed] the Constitution.” Not that any individual has to agree with the interpretation of the meaning of the words in the Constitution adopted by the Court in any given case. Indeed, given that the Court is often divided on these issues, it would be silly to assume everyone would agree with everything it decides. But it is important to avoid the common mistake of simply labelling anything the Court does that one disagrees with as being wrong, or as making up new law, etc.
As a case in point: Casey Martin’s case is quite the logical conclusion based on the ADA’s language and the history of the statutes involved, which includes a considerable amount of decisional law based on earlier discrimination laws with identical language applicable to narrower situations. Despite the attempt of the PGA to cast the issue as control over the rules of their competitions, the legal issue in question was, simply, did the PGA fall under the category of “public accomodations” as that language has been interpreted over the years since its original use in civil rights acts of the 60’s, and, if so, would allowing Mr. Martin to use a cart fundamentally alter the nature of the public accomodation. Had the Tour’s assertions been accepted, then ANY operator of a public accomodation could successfully assert that a neccessary change to the accommodation to allow participation by a disabled person would fundamentally alter the nature of the accomodation because the operator said so, denying the very fundamental essence of judicial review. In short, the Tour wanted the Court to allow it to circumvent the ADA by asserting that the law didn’t apply to the Tour; had a hotel operator asserted that the ADA didn’t apply to require installation of ramps because that would fundamentally alter the nature of the hotel the operator would have gotten no better result than did the Tour.
This, however, is not to say that the Court had to reach the conclusion it did about whether allowing Mr. Martin to ride would fundamentally alter the “accomodation”. As Mr. Scalia so scathingly and pithily points out, a solid argument to the contrary could be reached. But seven members disagreed, and given that they included the often conservative Chief Justice, it is a bit of a stretch to say that the Court was being unreasonable in its determination, let alone re-writing the ADA.
In short, the application of the ADA to the Tour may and or may not have been forseen by Congress. But the point of the ADA, correctly understood by the Court, is to keep operators of public accomodations from using narrow interpretations and age-old prejudices to keep the disabled from full enjoyment of the accomodation. For the Tour to say that no one who can’t successfully hit good golf shots because they are disabled such as to limit their ability to walk can’t participate is the same as saying that someone who can’t go up steps because they are in a wheelchair can’t watch a movie; the disqualifying factor is the disability itself and a preconceived notion about whether such a person should be allowed access. If the Tour seeks to have a different outcome, the remedy is to have Congress write a different law, one less “kind” to the disabled.
Well according to some people, that’s exactly what’s happened. In the 19th century the Taney court (after Chief Justice Taney) handed down the infamous Dred Scott decision, which in the eyes of many critics flatly contradicted the letter of the Constitution, and was simply a rationale for the pro-slavery opinions of the majority. One quote (sorry I can’t cite) said something like “I believe that Taney would rule that Night was Day and Day was Night to uphold slavery”.
In the 20th century we had the Warren court which in the '50s and '60s handed down a number of rulings that shook government and society and are still criticized today as “judicial activism”. Certainly a large number, maybe a majority of Americans at the time saw nothing wrong with prayer in schools, outlawing abortion, or in the South, segregation, and bitterly resented what seemed like the SC overturning the public will. One the other hand, those decisions also have their supporters, enough anyway that constitutional amendments overturning them haven’t ever been passed. (The American people did eventually get tired of Prohibition, remember.)
In short, although an activist Court can swing the law in support of a minority position, they can’t flatly dictate something no one wants. I doubt for example, that a ruling that said that rich people could pay for the right to commit murder would stand for very long.
P.S. I’ve often wondered how US history might have been different if in 1960 the Warren court had ruled that the draft was illegal except after a congressional declaration of war. I wish one of those cases had come before the court.
Is the draft forbidden by the 13th Amendment?
I once read an interesting legal conundrum. Suppose Congress passed a law saying that all Supreme Court decisions required at least a six vote majority to be valid. Then suppose the Supreme Court, by a 5-4 majority, declared that law unconstitutional and invalid. Would the law be valid or not?
IANAL, but this hypothetical law sounds like a violation of the concept of Separation of Powers. I’m not learned enough to explain why.
I don’t think Congress has the power to regulate anything the SC does. Off the top of my head I can’t think of any laws that apply to them, except perhaps their salaries and procedures for appointment and confirmation.
As to the legal “conundrum”, there is none. The Court’s determination that the law violated the inherent power of the judicial branch to establish its own rules and procedures would be final. This isn’t an academic question, either, because there often occur attempts by legislatures to control courts through rule-making, financial extortion, etc. Thus, there is a well-developed body of law regarding what the legislature can and cannot do to control the judiciary.
My favorite example of this came recently in California. The Republican governor, Wilson, was fighting the Democrat-controlled state legislature over various legal reforms. To try and put pressure on the legislature and the courts, he vetoed the annual bar association dues legislation, preventing the state bar association from levying any dues. Annual dues being about $500, this won him a lot of friends. But the state Supreme Court determined that it had the inherent power to run a disciplinary program among its officers (attorneys are members of the judiciary, officers of the court), and with it the power to levy among its bar members the costs of such a program. So, we all ended up paying a reduced fee for a couple years. The whole impass ended when the state elected a new governor, who allowed the passaged into law of a dues bill reducing annual dues to about $350.
As for judicial “activism”, let’s not forget that not all such “activism” has proven undesirable. After all, Brown v. Board of Education was activism, since Plessy v. Ferguson was still the law of the land and no modification of the Fourteenth Amendment had occurred. And one of the greatest all-time examples of judicial activism occurred in Li v. Yellow Cab (1975) 13 Cal.3d 804. In that case, the California Supreme Court, split 4-3, established that contributory negligence would no longer bar recovery by plaintiffs in tort actions, despite the codification of the common law rule in the Civil Code of the state. Instead, the Court established as a judicial rule (California Common Law, if you will) that the doctrine of comparative fault would be applied to tort actions, reducing the recovery by a plaintiff in proportion to his/her actual comparative fault in causing the damages. In so doing, the Court relied on its own inherent powers to establish and develop the law, noting (correctly, I might add), that California is not a code state, but a common law state.
Now, this isn’t Constitutional activism, but it is much the same sort of thing; a lack of willingness to defer resolution of important issues to other branches of government, or to the people. The same sort of activism is inherent in such “constitutional” principles as the “exclusionary rule” of evidence, the “Miranda warnings”, etc. Not all such examples of judicial activism have been well received; indeed the activist nature of the Rose Bird court lead to the removal of three justices from the California Supreme Court in the 80’s. But if it hadn’t been for a willingness to be the leader in the fight against segregation resulting in Brown v. Board of Education, it is questionable how long it would have taken to pass the various civil rights acts which codified and extended the simple principles of fairness embodied in that decision.
The legal issue from my previous post is not whether Congress has the right to pass laws which affect the Supreme Court (it does) or whether the Supreme Court has the power to overturn unconstitutional laws (it does). The issue is when is a law unconstitutional; from the moment of its creation, or from when it is declared so by the USSC?
In the example I gave, if unconstitutional laws are always invalid and the Supreme Court is simply declaring the fact, then there never was a period when the 6-3 majority rule was valid and their 5-4 decision saying so should stand. However, if the Supreme Court has the power to make laws invalid by saying they’re unconstitutional, then the law was valid prior to their decision, in which case the 6-3 rule was in effect when their decision was made and their 5-4 majority was not sufficient to overturn the law.
So my post really does reflect on the issue of this thread; what is the power of the Supreme Court? Do laws have an inherent constitutional state and the USSC’s role is to find out what that state is? Or does the Court have the power to act arbitrarily and let a law stand by refusing to act against it?