Liberal here. I think the Supreme Court is pretty much discredited garbage as an institution at this point, at least insofar as it is the court that decides, often in arbitrary ways, what the law of the US is. The right hates it, the left hates it, and I can’t say either side is wrong.
Here’s the thing: anytime the SC spits 5-4 on an issue, it is nothing less, nothing more than a legislature of 9 people. One side has a legal argument, and so does the other.
Thus, I ask: Why not just have Congress vote on which to keep? Isn’t that more democratic? Whichever side it picks, there will be a neatly written legal argument in its favor.
Now, personally, I think the SC should be abolished and we should look for a truly democratic way of deciding on policy, but our government as a whole is as this point too dysfunctional to get another done. But for starters, wouldn’t the above be a good idea? Why or why not?
Because I don’t want the likes of Louis Ghomert, Duncan Hunter, Devin Nunes, Steve King, etc. overturning a ruling in which the “liberal” side won 5-4. I’m sure conservatives wouldn’t want a 5-4 overturn of Roe vs Wade to be subsequently overturned by Nancy Pelosi and AOC, even if I think that would be the correct result. It would basically be one step on the way toward making tyranny of the majority the law of the land.
To me that sounds like you’re saying that we should outsource democracy to this 9-person legislature because we can’t trust our 400-something-person legislature.
And how is a 5-4 split not a “tyranny of the majority” anyway?
We’ve gotten to the point in the US where neither side wants to lose so we’re making due with complete stagnation. Meanwhile, any real move forward or backward is decided by the SC. It ain’t a good system.
Because it would be a total violation of the principle of separation of powers.
The politicalization of the process of appointing the Supremes, which has lead to all these 5-4’s, has already gone way too far in that direction. We can’t fix that problem by making it worse.
So you are saying that you believe in close cases the foxes should get to control what happens to the hens? :eek:
From a more legalistic view, your proposal seems to fail to comprehend what it is that is being decided in these 5-4 votes. It also makes no differentiation when the vote is on a case coming to the Court regarding some state action, as opposed to some federal action. Why should the Congress get to say whether what California or Kansas does is a violation of the Constitution? And what happens if, like now, Congress is split between one house that is controlled by one party and the other house by the other party?
I mean, seriously, let’s actually think this one through…
The SCOTUS comes to a majority decision 5-4 and it is somehow invalid? They do end up with ties sometimes, I can understand that a tie-breaker of some kind would make sense. What reason is there to turn to the Congress or anyone else when there is a decision?
I get what you’re saying, but why should SCOTUS vote in the first place. Either there is a clear path forward based on the law and precedent, or there is not. In the case of a 5-4 split, then there isn’t. In the case of such a vote, the court is not acting as a court but as a legislature.
Because that’s the role of the judiciary. What makes you think there is or should be a clear path forward with respect to the law? It’s never been that way.
Not really. Most cases arrive because the world is more complicated than can be bright-lined in a piece of legislation. Deciding what things are like other things is the function of the court, and often involve making comparisons that have to be built of fragile towers of logic. The Constitution makes these ambiguities even worse because the founders knew that they were constructing only a framework onto which laws would be grafted reflecting their times. (Which is why originalism is a religion that no human should believe in.)
Cases go through lower courts, with the bright legal minds on them often splitting their vote, to district courts, where the bright legal minds on them not only split their votes but often come to conclusions that are opposite to those of other district courts, and reach the Supreme Court to find that their bright legal minds don’t agree with one another. Legislatures, no matter how able or careful or precise in their wordings, can’t fix this reality, especially not in a world that is constantly changing in a million ways.
Are we in an unusual period in which five of the justices are conservative and four of them liberal? Certainly. Will this hold forever? Absolutely not. The world, as I emphasized, is constantly changing. The court’s makeup will change as well. But those future courts will be subject to the same challenges that courts have always faced.
You’re right about that. I just get pissed at congress for not following up on some cases with better law. They use court decisions as an excuse to let issues continue to be batted around in the courts instead of creating constitutional laws to settle the issues.
However, as you say, that is not the majority of cases, most are those esoteric questions of law that arise from the ambiguity of language and an evolving ever more complicated world.
And as long as the SCOTUS sticks it’s nose into hot button political issues I’d prefer they weren’t closer to unanimity in their decisions.
Law is not a precise science like mathematics. Reasonable jurists can disagree about how the law should be applied in a certain case, and a great many times it is not along the conservative/liberal divide.
The criticism of the Court as nothing more than a legislature is typically levied by conservatives when liberals “invent” new rights out of whole cloth. That is a subject for another thread, but your proposal would simply affirm that idea that judges really aren’t applying the law, but their own personal preferences.
If that is the case, then you are right, we really don’t need courts adjudicating constitutional or statutory issues, but I don’t think we’ve gone that far yet except in a case here or there.
Besides, let’s point out that in many cases, really poor Supreme Court decisions have been handed down with large majorities. Plessy v. Ferguson, 163 U.S. 537 (1896) was a 7-1 holding, the lone dissenter being Justice J. M. Harlan. Dred Scott v. Sandford, 60 U.S. 393 (1857) was a 7-2 holding, the dissenters being McLean and Curtis, JJ. Buck v. Bell, 274 U.S. 200 (1927) was an 8-1 decision, the lone dissenter being Justice Butler, who didn’t even write an opinion explaining his opposition, perhaps because the majority opinion was written by Justice Oliver Wendell Holmes, Jr. (those of you who don’t recognize this decision: it allowed Virginia to forcibly sterilize the “unfit”, including those considered intellectually disabled).
So just because a decision goes 5-4 doesn’t mean it’s a bad decision; just because the ruling is almost unanimous doesn’t mean it’s a good one.
Here’s a few decisions that still resonate, and the SC votes:
Roe v. Wade (abortion) 7-2
Brown v. Board of Education of Topeka (school desegregation) 9-0
Miranda v. Arizona (accused’s right to a lawyer) 5-4
Nixon v. United States (impeachment and trial of a federal officer is solely the power of Congress) 9-0, but with four separate opinions; not to be confused with -
United States v. Nixon (limiting the power of executive privilege aka, “the tapes”) 8-0
Engel v. Vitale 6-1 and Abington School District v. Schempp 8-1 (prayer in public school)
New York Times v. United States (the “Pentagon Papers”) 6-3
Citizens United v. Federal Election Commission (campaign spending by organizations) 5-4
Was Roe a “better” decision than Miranda because it had a bigger majority? How about Brown? It was unanimous.
Right, I think the first problem is the portrayal of courts and judges as having any kind of firm grip on things. The second is what, if anything, to do about that.
Does anybody really think the Court is doing a worse job than Congress? I’d rather SCOTUS pass laws, to be honest, and let the congressfolk beg for money, which they’re actually good at.
:eek: