Papageno
5514
We’re all SO fucked if ACA goes away without a real non-Trumpian replacement (basically even more insurance regulation or single payer).
I don’t care if you think it won’t affect you because you have a good job blah blah blah. It absolutely will.
Yes, this is very clear. I don’t really like the idea anyway, but the realm of practical application is pretty narrow, if it exists at all.
Well, if they can declare the ACA unconstitutional after having previously declared it constitutional, then they are free to contradict previous cases. I guess it’s good to be the king.
If it struck down, there’s likely to be a 24-36 month sunset on the current act.
And it also likely gives Manchin and Feinstein the push that both apparently need to abolish the filibuster, should the Democrats control the senate.
I totally concur on tying the SCOTUS fight to health care and riding the “It’s the pandemic, stupid” strategy against POTUS and vulnerable R-Senators. It’s even getting close to health insurance signup season so it should be on everyone’s mind even more than it already is.
Alstein
5518
Courts will ignore precedent when it suits them. An activist court will really ignore it. Roberts will likely use his chief justice power to limit this, except when he wants to do it.
Roberts is good at knowing where the line is to avoid outrage and a potential courtstack.
Alstein
5520
Yes, but if he’s in the majority, he picks who writes the opinion and sets the precedent. He’ll pick himself to reign in the nutcases, he’s done this a bunch already.
magnet
5521
Rarely, and those decisions are eventually reversed on appeal. And we are talking about judicial review. You can’t seriously expect the SCOTUS will let stand a lower court decision that upholds a law the SCOTUS itself declared unconstitutional.
I was referring to the lower courts, which do the heavy lifting when it comes to helping government enact policy.
The SCOTUS is free to contradict itself, but it generally prefers not to.
And it didn’t “declare the ACA constitutional”, it simply didn’t agree with the particular argument presented for unconstitutionality. It can hear different arguments, and even agree with them, without contradicting itself. It is the most pedantic branch of government after all.
He has reined in the nutcases with his votes. The written opinions follow the votes, not the other way around, unless the process of writing the opinion reveals a problem with the decision.
Alstein
5523
Writing the opinion determines what the precedent is for future verdicts. It can be narrow or broad. Roberts prefers narrow , which reigns in the nutcases who want to do full in judical activism.
That said, activism can sometimes benefit the good guys- the NC Supreme Court has been very activist since 2016, in attempts to regin in a nutjob state legislature.
Is there an example of a case where Roberts voted with the conservative majority, assigned the opinion to himself, then wrote it more narrowly than they intended and still retained their votes for the ruling?
Rightbug
5525
Honestly, a frustration that many of us felt at the time was that the Senate’s official role is to provide advance and consent regarding the President’s pick. Tradition has always dictated that this would mean hearings followed by a vote of approval or disapproval but in 2016 the Senate essentially abdicated their role and Obama would have been entirely within his rights to proceed with the appointment without them. He chose not to for political reasons figuring Clinton had the election in the bag so why pick a fight by breaking with tradition?
Plenty of parliamentary democracies feature judicial review based on the constitution (or, in the UK, based on the Human Rights Act among other things). A sovereign parliament isn’t wholly unfettered. It takes a different form than in the US, but the courts can still “contradict what the legislature decides”.
magnet
5527
Ok, but an act of Parliament is not invalidated when a UK court declares it incompatible with the Human Rights Act. So even if a court’s opinion “contradicts” Parliament, the court’s orders do not. Which IMO makes it quite different from American judicial review, it’s more like when the OLC offers an opinion that the President could theoretically ignore.
Sure, I said it’s different. But in eg Germany, Karlsruhe can directly invalidate unconstitutional laws. I believe the Spanish Constitutional Court can too.
Menzo
5529
Could Congress pass a law that says that no act of Congress can be overturned by the Supreme Court unless it gets seven votes?
Timex
5530
The court would likely find that law an unconstitutional expansion of congressional power.
magnet
5531
No, but Congress has an even more effective power: jurisdiction stripping. And it’s not even new.
Article III of the Constitution gives Congress substantial power to strip federal courts’ jurisdiction: a power that can be employed to rein in politicized courts and even to override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.
How would jurisdiction-stripping work? Start with the source of Congress’s authority. Article III, section 1 gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99% of the Supreme Court’s total docket what cases the Court has the power to hear. As I explain in this article, to be published in December in the New York University Law Review , under its Article III authority, Congress can remove the Supreme Court’s appellate jurisdiction over particular cases, or particular issues, largely without constraint.
Imagine Congress enacts wealth tax legislation that includes a provision stripping the federal courts of jurisdiction to review the tax for consistency with the Constitution’s apportionment requirement. In so doing, Congress would be advancing its own understanding of the meaning of that part of the Constitution—the exact scope of the apportionment requirement is in fact subject to reasonable debate—and telling courts to stay out.
Timex
5532
If congress can do that, what would stop a Congress full of bad dudes, like the GOP controlled Congress in 2016, from passing blatantly unconstitutional laws?
