# Limits on the judiciary and the "N" option play
**URL:** https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418
**Category:** Great Debates
**Created:** [May 18, 2005, 3:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418 "2005-05-18T15:29:32Z")
**Posts on this page:** 20
**Page:** 10
### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 20, 2005, 12:30am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/181 "2005-05-20T00:30:00Z")
Hm?
> [@14th Amendment](#):
>
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I am under the impression that when it says No State shall it is referring to the states not the Federal Government.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:30am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/182 "2005-05-20T00:30:03Z")
I have commented on _Brown v. Board_ in posts 137, 133, and 122 in this thread. It’s unclear to me what you’re asking that wasn’t addressed by my commentary in those posts.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 20, 2005, 12:33am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/183 "2005-05-20T00:33:57Z")
> [@Bricker](#):
>
> Thurgood Marshall’s bio made the claim – I welcome correction on the point.
>
> I think I have laid out pretty clearly how I view Brown. Is there a specific question you have?
Havn’t read the bio yet thanks for reminding me.
Where did you lay out your view on brown?
> [@askeptic](#):
>
> My point is that no one can claim that Brown is some stunning piece of jurisprudential brilliance. It was decided with little legal reasoning. They basically said Plessy is wrong. They provided no real argument. Nevertheless, does anyone here claim Brown was wrongly decided? I don’t think so. If that bit of judicial activism is OK, then Brickers arguments are reduced to I just don’t like judicial activism I don’t agree with. Which by the way is my position.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:49am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/184 "2005-05-20T00:49:58Z")
> [@Random](#):
>
> Maybe I’m missing something, but:
>
> I am not aware of any precedent that would allow judicial review of Senate rules adopted under this clear power.
Until _Reynolds v. Sims_ was decided, I’m not aware of any precedent that said a state’s legislature couldn’t be apportioned like the US Senate is: not directly mapped to population. But it turns out the Equal Protection clause forbids that for states; any scheme that dilutes the effectiveness of some citizens’ votes can run afoul of EP.
Why can’t that same reasoning be applied here?
I asked for a clear, specific statement of the doctrine that would forbid the Supreme Court’s involvement. You have answered that there is no precedent.
But every time the Court has found a new Due Process or EP right, it has created new precedent. That doesn’t seem to be a barrier.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:51am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/185 "2005-05-20T00:51:54Z")
> [@askeptic](#):
>
> Havn’t read the bio yet thanks for reminding me.
>
> Where did you lay out your view on brown?
> [@Bricker](#):
>
> I have commented on _Brown v. Board_ in posts 137, 133, and 122 in this thread. It’s unclear to me what you’re asking that wasn’t addressed by my commentary in those posts.
Brown had a record to rely on to show that the scheme adopted in Plessy did not, as a matter of law, work.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:57am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/186 "2005-05-20T00:57:36Z")
> [@Bricker](#):
>
> I believe I have been pretty good about answering questions directed my way.
>
> In return, I would like:
>
> 1. **ElvisL1ves** to answer my question about what authorities he was relying on for the proposition that textualism or originalism meant literalism.
>
> 2. Any and everyone to answer the question that started this all: what principle, or doctrine, or method of analysis prevents the Supreme Court from stepping in to the Senate filibuster fight and finding, for example, that minority senators have a due process right to filibuster? Please clearly and specifically enunciate the principle or method you feel prevents this.
No word yet from **ElvisL1ves**.
**Random** and **treis** have offered answers to my second question. The offered answers were: no precedent, and no section of the Constitution permits it. I have responded in turn to each of these, showing why I feel neither of these reasons sustain themselves when applied to other Court holdings.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 20, 2005, 12:58am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/187 "2005-05-20T00:58:15Z")
> [@Bricker](#):
>
> Brown had a record to rely on to show that the scheme adopted in Plessy did not, as a matter of law, work.
So other than Sweatt v. Painter and McLaurin v. Oklahoma State Regents, what did the court base Brown on. The court did not even try to give a legal argument. It declared segregation unconstitutional by judicial fiat. They offered no textual support.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 1:20am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/188 "2005-05-20T01:20:09Z")
> [@askeptic](#):
>
> So other than Sweatt v. Painter and McLaurin v. Oklahoma State Regents, what did the court base Brown on. The court did not even try to give a legal argument. It declared segregation unconstitutional by judicial fiat. They offered no textual support.
In fact, they DISTINGUISHED _Sweatt v. Painter_ by pointing out in the case _sub judice_, there were factual findings from the trial court that buildings, curricula, qualifications and salaries of teachers were equal. _Sweatt v. Painter_ used the _Plessey_ holding and simply pointed out that the facilities were not equal. _Brown_ said that based on the state of public education in the country, even if buildings, curricula, qualifications and salaries of teachers were equal, the actual segregation of students created an inequality.
They relied on _McLaurin v. Oklahoma State Regents_ and _Sweatt v. Painter_ for the proposition that segregation CREATED inequality:
> [@](#):
>
> > [@](#):
> >
> > . . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.
>
> Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
>
> > [@](#):
> >
> > Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.
This is not an inferential leap. It is a finding supported directly by the record before the court.
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 20, 2005, 1:37am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/189 "2005-05-20T01:37:54Z")
> [@Bricker](#):
>
> Until _Reynolds v. Sims_ was decided, I’m not aware of any precedent that said a state’s legislature couldn’t be apportioned like the US Senate is: not directly mapped to population. But it turns out the Equal Protection clause forbids that for states; any scheme that dilutes the effectiveness of some citizens’ votes can run afoul of EP.
>
> Why can’t that same reasoning be applied here?
Again I don’t think there is anyway to answer besides that it can’t. In both of the cases you have cited so far as examples the Court gave a clear line of reasoning why the laws violated Due Process. In \* Roe v. Wade \* it found there was no basis for outlawing first-trimester abortions and in \* Reynolds v. Sims \* it found there was no basis for weighting one vote 30 times greater than another. There simply is not a reason why the Senate changing its debate rules falls under Due Process.
Your question is akin to asking why can’t the judiciary find the drinking age unconstitution becuase it found that corporations have the right to make political donations. The first amendment simply does not apply in that situation despite the Court finding rights in its pneumbra. Similairly the 14th amendment and the 9th amendment simply do not apply to Senate debate rules.
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 20, 2005, 2:10am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/190 "2005-05-20T02:10:31Z")
> [@Bricker](#):
>
> No word yet from **ElvisL1ves**.
>
> **Random** and **treis** have offered answers to my second question. The offered answers were: no precedent, and no section of the Constitution permits it. I have responded in turn to each of these, showing why I feel neither of these reasons sustain themselves when applied to other Court holdings.
I think I offered more than “no precedent”. I cited the direct language that allows the Senate to set its own rules. Other than perhaps **Marbury** itself, can you cite a Supreme Court case that used a penumbra or similarly attenuated basis for setting aside a power so clearly delegated to one of the other two executive branches?
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### Author:  [@Random](https://boards.straightdope.com/u/Random)
#### Post date: [May 20, 2005, 2:20am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/191 "2005-05-20T02:20:22Z")
Urf. Ignore the word executive in that last reply.
I’ll check back in later, after I see how PLATO empire is doing.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 12:10pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/192 "2005-05-20T12:10:39Z")
> [@Random](#):
>
> I think I offered more than “no precedent”. I cited the direct language that allows the Senate to set its own rules. Other than perhaps **Marbury** itself, can you cite a Supreme Court case that used a penumbra or similarly attenuated basis for setting aside a power so clearly delegated to one of the other two executive branches?
OK. “No precedent” and, arguably, a direct contradiction in the language of the constitution, as opposed to simply no clear permissive language.
There are a raft of cases that do violence to acts of Congress, but I agree with your point above: so far as I can recall, there’s never been a case in which the Court has ignored a power clearly assigned to another branch of government - apart from **Marbury**.
I think this answers the OP.
In all honesty, I believe it’s a narrow zone of comfort, since it leaves all sorts of power available to the judiciary, and as a matter of wise public policy, I believe that framework is … unwise.
But this does answer the question I raised in the OP. Thank you.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 20, 2005, 12:47pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/193 "2005-05-20T12:47:04Z")
**Random:**
> [@](#):
>
> No. Words have to be read with some context in mind. It’s fairly compelling (from what occurred immediately after Chisholm) that this language was not meant to abrogate sovereign immunity. The Constitution was adopted and ratified in the 1787-1790 period. The Chisholm opinion was handed down in 1793. General outrage immediately followed - the states never meant Article III to abrogate their immunity. The 11th amendment was quickly adopted and ratified by the necessary 3/4 of the states by 1795. The state legislators who approved the 11th amendment didn’t exactly have to pore over dusty documents to figure out the intent of those who adopted the Constitution - those state legislatures in 1795 would have included many (if not most) of the people who had voted to ratify the Constitution only a few years before.
C’mon. You’re telling me it’s not reasonable to believe that the Framers – who, I think we can all agree, chose their words carefully – meant “all cases in law and equity arising under this Constitution [and] the laws of the United States” when they said “all cases in law and equity arising under this Constitution [and] the laws of the United States”? When, later in the same paragraph, they make a clear statement abrogating state sovereign immunity as regards federal jurisdiction in another manner? Seems like plain meaning if ever there was.
(And, again, I agree that the states have generalized sovereign immunity…but to the extent you have to reach outside of the constitutional language for inferences in support of the proposition, and to the extent that the plain language, if anything, _contradicts_ the proposition, it demonstrates the shaky foundation of textualism as a unitary method of jurisprudence.)
Another question, for **Bricker** and **Random** : The courts have interpreted Section 5 of the 14th Amendment to abrogate state sovereign immunity from citizen suit in certain circumstances. Do you agree with this?
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 20, 2005, 12:55pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/194 "2005-05-20T12:55:27Z")
**Me:**
> [@](#):
>
> You know that Scalia joined the majority opinion in Seminole Tribe, right?
**Bricker:**
> [@](#):
>
> Sure. I would have, too, because we cannot unravel a hundred years of precedent overnight. I wouldn’t overturn _Griswold_, either… too many cases rely on it now.
>
> But I would stop current cases from following the same logic in stretching innovations any further.
Um…do you realize that _Seminole Tribe_ overturned _Pennsylvania v. Union Gas Co._, 491 U.S. 1 (1989), to revert to the (incorrect, to you) holding in _Hans_? Are you saying that Scalia joined _Seminole Tribe_ in contravention of his textualist jurisprudence, for the sake of restoring respect to historical precedent?
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 20, 2005, 1:31pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/195 "2005-05-20T13:31:58Z")
> [@Bricker](#):
>
> No word yet from **ElvisL1ves**.
You may have heard of real life, haven’t you?
If you can explain how the answer you seek would truly enlighten this thread, you might get one. But I don’t coddle those who throw tantrums rather than support their own positions. If you can’t make your case yourself, and so far you haven’t, you need to reconsider if there even is one. Here’s what you have, though:
> [@Bricker](#):
>
> One jump away from the text isn’t terrible. Two, three, four jumps away from the text and you’re in unacceptable territory.
What a resoundingly eloquent statement of ultimate principle that is. Do tell us more about your hatred of flexibility of interpretation. Or, better yet, don’t bother, unless you’re enjoying the laughter.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [May 20, 2005, 1:41pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/196 "2005-05-20T13:41:39Z")
**Bricker** :
1. Why was the 15th amendment necessary-- ie, why didn’t the 14th cover the right to vote?
2. If Congress were to consider an amendment to explicitly grant the SCOTUS the power the court gave itself in _Marbury_, can you recommend some wording that would put boundaries on that power in a way you would find acceptable?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 2:53pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/197 "2005-05-20T14:53:54Z")
> [@Gadarene](#):
>
> [Um…do you realize that _Seminole Tribe_ overturned _Pennsylvania v. Union Gas Co._, 491 U.S. 1 (1989), to revert to the (incorrect, to you) holding in _Hans_? Are you saying that Scalia joined _Seminole Tribe_ in contravention of his textualist jurisprudence, for the sake of restoring respect to historical precedent?
Actually, to my shame… no, I didn’t read Seminole Tribe when it was first mentioned here, and I didn’t recall it on my own at all – it being a bit outside my usual area of interest.
Let me now do what I should have done, read the cases, and I’ll get back to you.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 20, 2005, 2:57pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/198 "2005-05-20T14:57:49Z")
> [@ElvisL1ves](#):
>
> You may have heard of real life, haven’t you?
> If you can explain how the answer you seek would truly enlighten this thread, you might get one. But I don’t coddle those who throw tantrums rather than support their own positions. If you can’t make your case yourself, and so far you haven’t, you need to reconsider if there even is one.
Actually, I think I agreed a few posts above that there IS an answer to the question I posed in the OP, in acknowledging that on this thread’s precise issue, I have no case.
Why is it that I’m able to simply admit when I advance an incorrect proposition, and you seemingly never are?
I can point to many instances here on the SDMD in which I’ve acknowledged error.
Have you EVER been wrong and admitted it on the SDMB? Where?
I ask because when you get pinned to an error, you dodge – as above – rather than admitting your error. I’m curious is you’ve ever done it differently.
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### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 20, 2005, 2:58pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/199 "2005-05-20T14:58:32Z")
> [@](#):
>
> Let me now do what I should have done, read the cases, and I’ll get back to you.
Fair enough. Thanks!
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 20, 2005, 3:12pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/200 "2005-05-20T15:12:30Z")
> [@Bricker](#):
>
> Why is it that I’m able to simply admit when I advance an incorrect proposition, and you seemingly never are?
Provide an example and we can discuss it.
But you’ve done well to finally, at long last, acknowledge you have no argument.
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