# 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:** 2
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 6:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/21 "2005-05-18T18:29:30Z")
> [@askeptic](#):
>
> **Bricker** most certainly does not believe the court has the power, asking the question was seeking a responce he could shoot down. Because he is a smart guy and he knows the legal system and he knows the constitution (I quoted it in post two BTW).
Right. But I’m pointing out that if if we conclude the Court doesn’t have the power, how do we reconcile that conclusion with the broad expanse of power that some would urge we adopt in other areas?
In other words: what is the principled distinction that compels the conclusion that the Court does NOT have a role here? I agree the Court has no role here; I’m asking for the rationale, so that we may apply that rationale elsewhere.
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### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [May 18, 2005, 6:30pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/22 "2005-05-18T18:30:17Z")
> [@Bricker](#):
>
> I AM claiming that posters have said things like:
Link? Sounds like awfully stilted language for the 21st century; are you actually quoting a poster?
> [@](#):
>
> If THAT is the analytical principle at play in determining the role of the judiciary, then under that rubric, why couldn’t the Supreme Court find that minority party sentators had a RIGHT to filibuster under the Constitution?
A. If that is what you meant, why couldn’t you make yourself say it instead of couching it as yet another tediously-transparent gotcha attempt?
B. See **askeptic** ’s posts actually quoting the Constitution. The Supreme Court could find that right because of the clause saying that the Senate and House can make their own rules. Duh. Now one what basis could you say they couldn’t?
But you know that too. Now, how about telling us why you won’t call the Nuclear Option that?
NB: Chambliss and Graham are hotheaded backbenchers, not “people in positions of authority” other than with their own votes. The “leadership” is doing no such thing.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 6:36pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/23 "2005-05-18T18:36:35Z")
**Bricker** You know better than most people on this board what the Courts rational has been. It is certainly a suitable topic for debate. What I take issue with is your framing of the question. You know the answers to both questions. Just come on out and say what you mean. You think the 'libruls" are big bad poo poo heads. Thats fine you want to talk about that.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 6:37pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/24 "2005-05-18T18:37:07Z")
> [@ElvisL1ves](#):
>
> Link? Sounds like awfully stilted language for the 21st century; are you actually quoting a poster?
Sure [am.](http://boards.straightdope.com/sdmb/showpost.php?p=6149866&postcount=244)
> [@](#):
>
> But you know that too. Now, how about telling us why you won’t call the Nuclear Option that?
It’s the Nuclear Option.
There.
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### Author:  [@Neurotik](https://boards.straightdope.com/u/Neurotik)
#### Post date: [May 18, 2005, 6:41pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/25 "2005-05-18T18:41:34Z")
> [@Bricker](#):
>
> Sure [am.](http://boards.straightdope.com/sdmb/showpost.php?p=6149866&postcount=244)
Heh, I thought the language was too flowery for an internet post, too. But then I saw who you were quoting and it was a :smack: moment. Had to be **'lucy**.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 6:41pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/26 "2005-05-18T18:41:43Z")
> [@askeptic](#):
>
> **Bricker** You know better than most people on this board what the Courts rational has been. It is certainly a suitable topic for debate. What I take issue with is your framing of the question. You know the answers to both questions. Just come on out and say what you mean. You think the 'libruls" are big bad poo poo heads. Thats fine you want to talk about that.
T’ain’t the libruhls… it’s the Evolving Breathing Live-Action Poseable Constitutionalists that I’m questioning.
Are you suggesting I should have started the debate, “Given that the Supreme Court has no authority to intervene in the Senate’s rules change, why does it have the ability to intervene elsewhere in excess of the letter of the Constitution?”
Mebbe so. I’d be happy to offer that as rthe new topic, assuming everyone agrees with the predicate assumption.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 6:42pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/27 "2005-05-18T18:42:05Z")
Bricker, if your question is simply one of procedure how about this…
Could the senate make a rule preventing any motions by senators of middle eastern origin.
Considering the constitutional language i quoted above that seems to be a thornier legal question.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 6:44pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/28 "2005-05-18T18:44:01Z")
> [@askeptic](#):
>
> Bricker, if your question is simply one of procedure how about this…
>
> Could the senate make a rule preventing any motions by senators of middle eastern origin.
>
> Considering the constitutional language i quoted above that seems to be a thornier legal question.
THAT is a good question for illustrative purposes.
I say they could, yes.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [May 18, 2005, 6:53pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/29 "2005-05-18T18:53:49Z")
> [@Bricker](#):
>
> T’ain’t the libruhls… it’s the Evolving Breathing Live-Action Poseable Constitutionalists that I’m questioning.
But of course, 'cause all us non-originalists will ignore the Constitution any chance we get and have no problem establishing a government by judicial fiat!
Here’s my question: Why do all those strict constructionists want to steal our children and rape our dogs?
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 6:54pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/30 "2005-05-18T18:54:16Z")
> [@Bricker](#):
>
> THAT is a good question for illustrative purposes.
>
> I say they could, yes.
The Bill of Right came after the constitution and abrogated anything in the constitution that conflicts with it. (like the 3/5 compromise) so I think if the senate tried to apply the rule in a way that is prohibited by the Bill of Rights then the court could and should address the issue. This ofcourse leads to the sticky issue so deftly sidestepped in Marbury. Specifically how can the courts ruling be enforced if the executive chooses not to enforce it.
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 6:57pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/31 "2005-05-18T18:57:22Z")
> [@Hamlet](#):
>
> But of course, 'cause all us non-originalists will ignore the Constitution any chance we get and have no problem establishing a government by judicial fiat!
>
> Here’s my question: Why do all those strict constructionists want to steal our children and rape our dogs?
Good question. :smack:
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 6:59pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/32 "2005-05-18T18:59:06Z")
Hamlet, I didn’t know you wanted to rape my dog.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 6:59pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/33 "2005-05-18T18:59:32Z")
> [@Hamlet](#):
>
> But of course, 'cause all us non-originalists will ignore the Constitution any chance we get and have no problem establishing a government by judicial fiat!
>
> Here’s my question: Why do all those strict constructionists want to steal our children and rape our dogs?
That puppy was asking for it, that’s why!
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 7:01pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/34 "2005-05-18T19:01:42Z")
> [@askeptic](#):
>
> The Bill of Right came after the constitution and abrogated anything in the constitution that conflicts with it. (like the 3/5 compromise) so I think if the senate tried to apply the rule in a way that is prohibited by the Bill of Rights then the court could and should address the issue. This ofcourse leads to the sticky issue so deftly sidestepped in Marbury. Specifically how can the courts ruling be enforced if the executive chooses not to enforce it.
(A) What part of the Bill of Rights is offended by the exclusion of middle-eastern-born senators?
(B) Why does {whatever your answer to (A) is} not protect the right of the minority party senator to filibuster?
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 7:06pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/35 "2005-05-18T19:06:30Z")
> [@Bricker](#):
>
> (A) What part of the Bill of Rights is offended by the exclusion of middle-eastern-born senators?
>
> (B) Why does {whatever your answer to (A) is} not protect the right of the minority party senator to filibuster?
Come on Brick, you are kidding. Right?
a) XV Amendment
b)they are not a protected class so no strict scrutiny.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [May 18, 2005, 7:11pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/36 "2005-05-18T19:11:02Z")
> [@askeptic](#):
>
> Come on Brick, you are kidding. Right?
>
> a) XV Amendment
>
> b)they are not a protected class so no strict scrutiny.
Ah.
I’m used to the first ten amendments being called the Bill of Rights. Sorry.
But now seeing that you mean, “the whole Constitution,” your argument suggests that the Supreme Court COULD review the change under the rational basis test? In other words, the issue is justiciable, and they have jurisdiction, and it’s an equal protection case that doesn’t involve a protected class… yes?
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### Author:  [@askeptic](https://boards.straightdope.com/u/askeptic)
#### Post date: [May 18, 2005, 7:13pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/37 "2005-05-18T19:13:21Z")
> [@Bricker](#):
>
> Ah.
>
> I’m used to the first ten amendments being called the Bill of Rights. Sorry.
>
> But now seeing that you mean, “the whole Constitution,” your argument suggests that the Supreme Court COULD review the change under the rational basis test? In other words, the issue is justiciable, and they have jurisdiction, and it’s an equal protection case that doesn’t involve a protected class… yes?
See I knew you were better at this than me. 🙂
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [May 18, 2005, 7:28pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/38 "2005-05-18T19:28:06Z")
> [@Bricker](#):
>
> That puppy was asking for it, that’s why!
Rut roh, shaggy!
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### Author:  [@treis](https://boards.straightdope.com/u/treis)
#### Post date: [May 18, 2005, 7:36pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/39 "2005-05-18T19:36:03Z")
> [@Bricker](#):
>
> t’s not a strawman. I’m not claiming anyone has said, specifcally, that the Supreme Court has a role here.
>
> I AM claiming that posters have said things like:
>
> > [@](#):
> >
> > If a judge abrogate the formal conventions of the law to offer [justice] that … never should have been denied … in the first case, he is acting as our conscience and our censor, his actions are worthy, they are patriotic in the truest sense, they are Constitutional in the truest sense: they serve the justice and equality that the Constitution strives to embody.
>
> If THAT is the analytical principle at play in determining the role of the judiciary, then under that rubric, why couldn’t the Supreme Court find that minority party sentators had a RIGHT to filibuster under the Constitution?
>
> If anything, that’s the logical flaw of slippery slope, not strawman.
Wow that quote is quite a bit out of context. In the midst of a discussion about the constitutionality of discrimantory laws without logical basis that quote doesn’t seem out of place. That opinion has basis in cases City of Cleburne v. Cleburne Living Center and Romer v. Evans. Thats quite a different situation than the judiciary imposing rules on the legislature with absolutely no basis in law or logic.
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [May 18, 2005, 7:39pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/40 "2005-05-18T19:39:19Z")
> [@ElvisL1ves](#):
>
> NB: Chambliss and Graham are hotheaded backbenchers, not “people in positions of authority” other than with their own votes.
Graham is a hotheaded backbencher? Then how do you explain this?
> [@](#):
>
> Several senators were working furiously to stop the chamber from getting to that vote. Democratic Sen. Ken Salazar of Colorado had attended at least 13 private meetings over the previous 24 hours with senators trying to craft a deal, a spokesman said.
>
> **Graham and Salazar, along with Sens. Ben Nelson, D-Neb., John McCain, R-Ariz., Mark Pryor, D-Ark., and others, were working to try and find six Republicans and six Democrats to block Frist from banning judicial filibusters and block Reid from filibustering all of Bush’s controversial judicial nominees.**
[Link.](http://news.yahoo.com/news?tmpl=story&u=/ap/20050518/ap_on_go_co/filibuster_fight_48)
Let’s recap the action thusfar: you’ve accused another poster of creating a strawman, only to find that two Senators have advanced the very proposition proposed for debate in the OP. Then, you call one of the two Senators a “hothead,” and now it’s shown that said “hothead” is actually at the center of efforts to work out a bipartisan compromise to preserve comity in the Senate.
I’ve made poor arguments in my posts before, but I’d be very embarrassed if TWO of my arguments were so blatantly contradicted by facts within such a short timeframe.
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