Maybe this belongs in the GQ forum, but I kind of doubt it has a single correct answer.
If the SC was liberal/conservative enough and sufficiently anti-(whichever POTUS happens to be in power at the time) could they, in effect, legislate some type of law from the bench or interpret some laws or parts of the Constitution to come to a determination that the current wartime events (you may use the war in Iraq for example) supported by the current administration are illegal?
To what extent can they enforce such law, and whom in the administration would have to honor their decision?
Is this even within the realm of possible?
If the SC made a statement tomorrow that they believed the US was in Iraq illegally and that all grounds for the initial invasion were false and fraudulent, could they make such a statement expecting someone in the executive branch to listen?
What would follow?
The SCOTUS does not pronounce. It is entirely a reactive body. Your scenario is so far outside the realm of possibility that it’s closer to science fiction than political theory.
"John Marshall has made his decision; let him enforce it now if he can." -President Andrew Jackson, after the Supreme Court ruled that forcing the Cherokee Indians from their land was illegal.
Of course the SCOTUS could rule against a piece of legislation if someone brought a case before them. That’s what they do. But that’s a really, really, really, big “if”.
In case you aren’t familiar with the story, President Jackson ignored the Supreme Court and did what he wanted anyway. I strongly suspect that’s what would happen today regardless of how soundly the legal logic used is to strike it down.
In fact, it doesn’t matter how blatantly illegal and wrong a military strike is by the President, realistically nothing is going to happen to him. It’s just a sad fact of life that this bleeding heart liberal has come to accept. Nixon illegally bombed Cambodia and the House decided not to impeach him for it.
Justice Douglas issued an injunction against it (well, he reversed a stay on an injunction against it by the Court of Appeals allowing the injunction to go into effect)… but was reversed by his 8 other collegues within hours (they were on vacation at the time, but they did a conferance call or something). The most remarkable thing about the decision of the whole court was the almost complete lack of legal explanation for it. What Nixon did was clearly illegal, but only Justice Douglas had the balls to really do anything about it.
I could picture someone (presumably someone claiming to have been injured in someway by the war) bringing a case before the Supreme Court saying that the US constitution prohibits the executive from conducting a war without a declaration from congress, but that the current action in Iraq (or some similar conflict) is obviously a war being conducted without such a declaration.
Of course the current court has already basically said that the Congresses “authorization to use force” was all the Prez needed for the Afgan war (in one of the Gitmo cases, can’t remember which one), and presumably something similar would serve for the Iraq war. But I could see some hypothetical court saying an actual declaration was necessary. This would then throw the ball to congress, which would either have to declare war or tell the Executive to cease hostilites.
Blalron, has brought forth some bits that would dictate otherwise.
Let’s imagine if most of the SCOTUS was appointed by Clinton and leaned way to the left. Could they feel it their duty as citizens to try to thwart an effort by a conservative POTUS to stop him from doing what they thought would do more harm than good to the US, especially a war?
Why is that a big if? I remember people taking cases to the courts over Vietnam. One could argue that there is no war since it was not declared by congress.
A case has to be brought before SCOTUS, period. They can’t just go out and make rulings.
But the idea that the President could ignore SCOTUS on an issue like this is a misrepresentation. If, for argument’s sake, the Court declared the war unconstitutional and said that the President had no lawful power to keep our troops over there, one of two things would almost certainly happen:
1 – Congress rushes to pass a legal declaration of war.
2 – Democrats win a resounding victory in the 2006 elections on a campaign that the President has failed to faithfully execute the laws of the United States, Bush is impeached in January 2006, and a trial in the Senate starts soon thereafter.
Just because the Court cannot enforce its decisions with force of arms does not mean that there are not consequences should another branch of government choose to ignore the supreme law of the land.
(For clarity’s sake, I see no reason why the war would be found unconstitutional, this is just a what-if.)
As a practical matter, even a very left leaning SCOTUS would be very, very hesitant to judicially enjoin a war because there’s so much precedent against it involving lack of justiciability as a “political question” and lack of standing on the part of just about everybody to bring suit (See Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974). The usual language is that there’s a “lack of judicially discoverable and manageable principles” to resolve the case. In other words, the Supremes know that the issue of whether or not we should be fighting wars is way over even their lofty and distinguished heads.
Another deciding factor is as Blaron stated; they don’t want to be completely ignored and look like fools, which is almost certainly what would happen. Jackson supposedly made a famous stement concerning one of the Marshall court’s rulings: “John Marshall has made his decsion, now let him enforce it.” Hamilton described the judicial branch as the “least dangerous branch” in The Federalist No. 78 for pretty much exactly this reason. They lack the “sword” of the executive branch to directly enforce their decisions and the “purse” of Congress to otherwise do so. So, if SCOTUS came in today and said troops out by next Friday, don’t hold your breath on it happening.
The Supreme Court ruled during WW2 that the internment of American citizens of Japanese ancestry was legal. I don’t know what the argument was or if it could have plausibly gone the other way. But if the SC had ruled that Japanese-Americans were being illegally detained and issued a habeas corpus on their behalf, then they would have been directly opposing what many regarded as a vital war measure. If the US Army (which I believe was responsible for the internment camps) had decided to take a page from Jackson’s book and ignore the order, the $#!+ could well have hit the fan.
Yes, absolutely. The Supreme Court cannot take any action unless someone else requests they do so. If President Bush decided to name himself Pharaoh and call for the death of every first born child in America, the Supreme Court couldn’t do a thing to stop him unless somebody somewhere filed a lawsuit against him.
A possibility so remote as to be impossible. The court is empowered by the Constitution to try cases in law and equity arising under a whole bunch of different circumstances. But in order for the court to be empowered to handle them they must “arise” and not be self-generated.
Sure, Roberts, Kennedy, Scalia, & Co. can state their individual or collective opinions on anything from the smell of Limburg cheese to the poetic quality of “The White Cliffs of Dover.” But as the Supreme Court they are limited to deciding specific disputes brought before them by one person accusing, suing, or otherwise implicatin another person, using the legal definition of “person” to include corporations, states, etc.
There is a precedent to guide what the courts might do, sort of. In October 1972, the Supreme Court took the slightly unusual step of a fullbore 9-member opinion stating their reasons for refusal to grant certiorari in the case Sarnoff v. Schultz. I am unfortunately not able to find any online textual content, but the gist of it was that suit had been filed to challenge the constitutionality of the President’s engaging in acts of war in the absence of a Congressional declaration of war, and the Court declined to hear it as “a political question” to be resolved by its two sister branches of government. Two justices dissented from this holding.
Still, they could also collectively issue a proclamation in the name of the Supreme Court if they really wanted to. It’s not like they’d get arrested (although impeachment might be a possibility ).
No cite, but I read once that when George Washington asked the SC for an advisory opinion about the constitutionality of a proposed treaty, they flatly turned him down, saying they could only rule on cases in controversy.
I’m pretty sure that no court in the US will entertain moot questions. There has to be an actual issue resulting from a real difference of opinion by at least two parties in conflict.
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