# Limits on Supreme Court's powers **URL:** \ **Category:** Factual Questions\ **Created:** [May 24, 2017, 12:56pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338 "2017-05-24T12:56:17Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 25, 2017, 1:23pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/21 "2017-05-25T13:23:14Z")
> [@DSYoungEsq](#): > > The Supreme Court cannot act _sua sponte_ in the sense of issuing an opinion when there is no case or controversy already in front of it. This precludes advisory opinions. Well, according to SCOTUS it does. But there’s really nothing in the text of the clause which prohibits advisory opinions; in fact, use of the term “controversy” suggests that the framers were distinguishing between existing cases and potential ones. ---
**Author:** ![igor\_frankensteen](https://avatars.discourse-cdn.com/v4/letter/i/839c29/32.png) [@igor\_frankensteen](https://boards.straightdope.com/u/igor_frankensteen)\ **Post date:** [May 25, 2017, 1:24pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/22 "2017-05-25T13:24:32Z")
I keep hearing or reading people claiming that the Supreme Court can create laws, and that’s just plain false. The complaint about “activist courts” and “activist judges” always come from people who simply don’t like that the court ruled against them, AND made clear WHY they ruled against them, but they disagree with the decision. The most common and basic way this shows up, is where someone LIKES that the Court interpreted things like the General Welfare parts of the Constitution, when it means it’s cool to build federally funded interstate highways, and give businesses a cheaper way to interact. But those same people blanch when the exact same clauses are used to say that it’s also okay for the Federal government to help people who they DON’T happen to like, or to stop them from persecuting people who they don’t like. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [May 25, 2017, 2:03pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/23 "2017-05-25T14:03:56Z")
> [@igor\_frankensteen](#): > > I keep hearing or reading people claiming that the Supreme Court can create laws, and that’s just plain false. > > The complaint about “activist courts” and “activist judges” always come from people who simply don’t like that the court ruled against them, AND made clear WHY they ruled against them, but they disagree with the decision. Once again, the court can effectively create law as in the case of requiring Miranda warnings or the trimester framework for abortions. It’s not the same as legislating but it does effectively create new laws by establishing processes and procedures not found elsewhere. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 25, 2017, 3:33pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/24 "2017-05-25T15:33:09Z")
> [@puddleglum](#): > > Congress can do something called jurisdiction stripping, which is less cool than it sounds. It means removing the supreme court from the appeals process of a given law. It can only do this in cases that do not involve a state and another state or foreign country. Has this ever happened? I can’t imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn’t just rule it un-Constitutional. Maybe I will start a GD thread to discuss. Regards, Shodan ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 25, 2017, 4:12pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/25 "2017-05-25T16:12:09Z")
> [@Shodan](#): > > Has this ever happened? > > I can’t imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn’t just rule it un-Constitutional. > > Maybe I will start a GD thread to discuss. > > Regards, > Shodan Happens frequently. What doesn’t happen - because it is likely prohibited by the Due Process Clause - is Congress insulating its actions from judicial review _entirely_. What it normally does instead is vest judicial authority in an executive branch tribunal - an administrative hearing office - with appeal to the regular judiciary available at some point. For example, Social Security disability appeals are heard by administrative law judges, who are not Article III judges but employees of the executive branch. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 25, 2017, 4:23pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/26 "2017-05-25T16:23:12Z")
> [@igor\_frankensteen](#): > > I keep hearing or reading people claiming that the Supreme Court can create laws, and that’s just plain false. > [@watchwolf49](#): > > The courts cannot write laws … that’s a pretty serious limit on their power … The sentence “The court can/cannot write/create laws” is pretty much meaningless in our common law system and leads to endless misunderstanding. Yes, it’s true for certain definitions of “create” and “law,” but if you’re talking about the real scope of power of a court in out system, those definitions are not useful. A court cannot “enact statutes.” That’s what the legislature gets to do. A court cannot promulgate regulations, initiate prosecutions, or otherwise exercise executive power. But courts in our system “make law” all the time. They have to. Our legal and governmental system would just shut down if they didn’t. The entire common law system is based on the assumption of judges making law. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [May 25, 2017, 4:44pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/27 "2017-05-25T16:44:47Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Happens frequently. What doesn’t happen - because it is likely prohibited by the Due Process Clause - is Congress insulating its actions from judicial review _entirely_. What it normally does instead is vest judicial authority in an executive branch tribunal - an administrative hearing office - with appeal to the regular judiciary available at some point. For example, Social Security disability appeals are heard by administrative law judges, who are not Article III judges but employees of the executive branch. This seems to be conflating two separate concepts. The first concept you raise is “Congress insulating its actions from judicial review”. You say they can’t do this “entirely”, implying that they can insulate their actions from review by the SC specifically. I understood puddleglum to be saying something along these lines. SS appeals being heard by ALJs has - to my understanding - nothing to do with this. It may well be that you can’t generally appeal a ruling by an ALJ to the SC. But if you were challenging the ruling based on a challenge to the SS law itself, you could most definitely go to the ordinary courts, culminating in the SC. So the Congress has not “insulated its actions from judicial review”. The rulings of a guy who rejected the initial SS application may have been insulated from judicial review, unless the ruling conflicts with some other law, but that’s not the same as the law itself being insulated from judicial review. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [May 25, 2017, 6:47pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/28 "2017-05-25T18:47:34Z")
Previous thread on insulating laws from judicial review: [What does this provision of the US Constitution mean?](http://boards.straightdope.com/sdmb/showthread.php?t=809533) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 25, 2017, 7:47pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/29 "2017-05-25T19:47:35Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, according to SCOTUS it does. But there’s really nothing in the text of the clause which prohibits advisory opinions; in fact, use of the term “controversy” suggests that the framers were distinguishing between existing cases and potential ones. On the contrary, “controversy” is a MORE limited term, as it is only applicable to actions filed in civil matters. I am aware of no contemporary indication that the clause in question ever meant “controversy” to include the possibility of hypothetical conflicts. Are you? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 25, 2017, 7:52pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/30 "2017-05-25T19:52:34Z")
> [@Shodan](#): > > Has this ever happened? > > I can’t imagine a scenario where Congress, for instance, passes a law that says the Supreme Court has no appellate jurisdiction on laws about abortion, and the Supreme Court doesn’t just rule it un-Constitutional. > > Maybe I will start a GD thread to discuss. > > Regards, > Shodan Allow me to introduce to you the case of [_Ex parte McCardle_](https://en.wikipedia.org/wiki/Ex_parte_McCardle). Allow me to acquaint you with a famous quote by Justice Felix Frankfurter: > [@National Insurance Co. v. Tidewater Co.](#): > > Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred. Yeah, it happens. :eek: ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 25, 2017, 8:01pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/31 "2017-05-25T20:01:36Z")
Herewith a [thread](http://boards.straightdope.com/sdmb/showthread.php?t=827036)in GD to discuss. Oyez, oyez, oyez, God save the United States and this honorable messageboard. Let all who want to debate/nitpick/make jokes draw near and be heard. Regards, The Honorable Shodan, LL Bean, BYOB, LS/MFT ---
**Author:** ![Dana\_Scully](https://avatars.discourse-cdn.com/v4/letter/d/5daacb/32.png) [@Dana\_Scully](https://boards.straightdope.com/u/Dana_Scully)\ **Post date:** [May 26, 2017, 2:43pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/32 "2017-05-26T14:43:44Z")
Wouldn’t it take a Constitutional amendment? ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [May 26, 2017, 3:35pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/33 "2017-05-26T15:35:41Z")
> [@DSYoungEsq](#): > > Allow me to introduce to you the case of [_Ex parte McCardle_](https://en.wikipedia.org/wiki/Ex_parte_McCardle). > > Allow me to acquaint you with a famous quote by Justice Felix Frankfurter: > > Yeah, it happens. :eek: On the other hand, the result of taking appellate jurisdiction away from the Supreme Court would not be that Acts of Congress would be immune from judicial review; rather, it would mean that judicial review would still take place but end at a lower level of the hierarchy of courts (U.S. District Courts or Courts of Appeal). These could still strike down an Act of Congress as unconstitutional. The consequences would be nasty: A risk of inconcistent application of the law across the country - the same statute could be considered valid in some judicial districts but not in others. The job of the Supreme Court is to prevent precisely such things from happening (at least in the long run - they do in the short run, as long as the Supreme Court has not yet ruled on an issue). And the second consequence, related to the first one: the probability rises that a controversial statute is found unconstitutional by _some_ court _somewhere_. Even a hypothetical rogue Congress intent on abusing its powers to shield its statutes from judicial review could find these consequences so unappealing (pun intended) that it would shy away from taking the Supreme Court’s appellate jurisdiction away. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 26, 2017, 7:53pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/34 "2017-05-26T19:53:18Z")
Actually, that’s not necessary, either. Congress doesn’t have to create a judicial appeals process. It could easily create a process which limits you to the result you get in the trial court. It could then strip the trial court of the ability to determine the constitutionality of statutes. Of course, at some point in all this, the system probably breaks down. There’s a good reason none of this has happened, even in the most hyper-partisan political atmospheres. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 26, 2017, 8:22pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/35 "2017-05-26T20:22:32Z")
Here’s Wiki on jurisdiction stripping, including five notable recent examples: [Jurisdiction stripping - Wikipedia](https://en.wikipedia.org/wiki/Jurisdiction_stripping) > [@Hari\_Seldon](#): > > One other thing they can do is enlarge the court. Roosevelt tried that and that was a bridge too far for congress. But suddenly the court decided that maybe the New Deal was constitutional after all. Congress can also shrink the size of the Supreme Court; the number of justices is set by statute, not by the Constitution. When the Radical Republican-dominated Congress didn’t want President Andrew Johnson (with whom it was fighting on Reconstruction) appointing anyone to the court, it simply reduced the size of the court by attrition when several justices died or retired during his term. When U.S. Grant took office in 1869, Congress increased the size of the court again, and it’s remained at nine (the Chief Justice and eight Associate Justices) ever since. ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [May 26, 2017, 8:38pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/36 "2017-05-26T20:38:54Z")
> [@DSYoungEsq](#): > > Actually, that’s not necessary, either. Congress doesn’t have to create a judicial appeals process. It could easily create a process which limits you to the result you get in the trial court. It could then strip the trial court of the ability to determine the constitutionality of statutes. I doubt that would work. All the case law on the power of the judiciary (including courts below the Supreme Court) to scrutinise statutes for constitutionality would remain intact. I would presume that this case law woulde continue to be regarded as good precedents, since it was derived directly from the constitution. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 27, 2017, 5:07am UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/37 "2017-05-27T05:07:43Z")
There is also caselaw that every litigant is entitled to at least one level of appellate review. SCOTUS picks its own cases, by and large, and hears and rules upon only a tiny fraction of all the cases that are filed with it. But the U.S. courts of appeals are open to all. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [May 27, 2017, 12:24pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/38 "2017-05-27T12:24:23Z")
IANAL - but as I understand it, the _constitutionality_ of a law can’t be blocked from being disputed in the Supreme Court. So presumably, whatever law congress passes limiting appeal jurisdiction can be appealed on those grounds. _However_ - Congress does have the general right to set who can hear appeals, and once the issue of constitutionality is settled once in the SCOTUS, then all further appeals would be moot, unless someone comes up with a novel argument why the law would be unconstitutional. As \*\*Schnitte \*\*mentions - I seem to recall one of your constitutional rights is the right to due process of law. If SCOTUS has defined due process of law as including the basic fairness of the option of appeal (review), which I seem to recall is current law, then deliberately blocking \*any appeal at \*all would be unconstitutional. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2017, 5:50pm UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/39 "2017-05-27T17:50:20Z")
> [@Elendil\_s\_Heir](#): > > There is also caselaw that every litigant is entitled to at least one level of appellate review. SCOTUS picks its own cases, by and large, and hears and rules upon only a tiny fraction of all the cases that are filed with it. But the U.S. courts of appeals are open to all. > [@md2000](#): > > IANAL - but as I understand it, the _constitutionality_ of a law can’t be blocked from being disputed in the Supreme Court. So presumably, whatever law congress passes limiting appeal jurisdiction can be appealed on those grounds. > > _However_ - Congress does have the general right to set who can hear appeals, and once the issue of constitutionality is settled once in the SCOTUS, then all further appeals would be moot, unless someone comes up with a novel argument why the law would be unconstitutional. > > As \*\*Schnitte \*\*mentions - I seem to recall one of your constitutional rights is the right to due process of law. If SCOTUS has defined due process of law as including the basic fairness of the option of appeal (review), which I seem to recall is current law, then deliberately blocking \*any appeal at \*all would be unconstitutional. It would help if either or both of you actually cited precedent (cases) supporting your assertions. Here is an article from 2013 which argues for finding a right of appeal as a part of due process. In that article, the author notes that the Supreme Court has never held that there is a right of appeal as a part of basic fairness (due process). Indeed, it has more than once held that there is no right to an appeal. [The Right to Appeal](http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1057&context=faculty_publications) ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 28, 2017, 12:47am UTC](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338/40 "2017-05-28T00:47:42Z")
> [@DSYoungEsq](#): > > In that article, the author notes that the Supreme Court has never held that there is a right of appeal as a part of basic fairness (due process). Indeed, it has more than once held that there is no right to an appeal. There is always a right to petition the Supreme Court for discretionary review of constitutional issues via cert., however, including directly from the trial court if no appeal is available. Thompson v. City of Louisville, 362 U.S. 199 (1960). [Previous page](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338.md?page=1) [Next page](https://boards.straightdope.com/t/limits-on-supreme-courts-powers/787338.md?page=3)