You Will Write the Law

Great Debates
#1

In the case of Pennsylvania’s gerrymandering, the Penn. Supreme Court told the Legislature that they had 30 days to redraw the borders or they would.

Given that courts, in general, have decent leeway to demand whatever remedies seem necessary for the case they are trying, I’m curious that the US Supreme Court does not do so.

There is a large and long-term running debate between originalism vs the Living Document, when it comes to interpreting the Constitution and law in general. And that all hinges on cases where the law doesn’t answer the question being asked. (In the majority of cases, as I understand it, the law is clear and the justices all align on the same answer.) But in those cases where the answer isn’t clear the options remaining are always listed as judicial activism or “punting”.

Is there any reason, in these cases, for the Supreme Court to not mandate that the Legislature issue a law to cover the gap? That seems like the clear, non-judicial activism methodology. It seems to be doing nothing more than using the layout of the government and it’s apportioned powers exactly as it should be. Why is it not the norm?

#2

What are you going to do if they don’t? Arrest them all?

#3

SCOTUS frequently calls on Congress to fix laws or clarify things. It’s a wish, nothing more. SCOTUS holds no power over Congress except as provided by the Constitution. All they can do is ask/beg/implore Congress to act.
Ex:

#4

Apparently they’ve done it 430 times. (pdf)

#5

Rather than revisit this the next time a party tries to gerrymander, could they set up an independent electoral commission that reports to them as a long term solution?

#6

As in the case of Pennsylvania, you give them X amount of time or else you do it yourself.

#7

The thing is, the primary duty of the courts is to decide disputes between parties. If the courts throw up their hands and say “Don’t ask me! How should I know what the law is?!?” then they’re abdicating that most basic duty.

Even if the law is not clear, they have to rule on it to decide the case before them.