magnet
5960
Well, Congress can strip the SCOTUS of jurisdiction over a particular law, effectively making it immune from judicial review. The SCOTUS has acknowledged that this is legal, though obviously it is open to abuse.
Yeah, this strikes me as the next theater of norm erosion. Iâd rather pack the court.
The proper term is remedy the GOP packing.
Right, I assumed we were all antifa here, sorry. Of course I mean judicial reform!
magnet
5964
Iâm not so sure.
Jurisdiction stripping reinforces the strength of Congress, our most democratic branch. If it renders judicial review impotent, then we are no less democratic than all the countries that have dispensed with it.
Court packing merely moves political attention from the legislature to the SCOTUS, implicitly affirming the power of an oligarchy.
Either way, judiciary independence is permanently eroded. And if thatâs inevitable, then I would sooner see power return to Congress.
I rather agree with @magnet here.
I know you (i.e., @scottagibson) are not naive enough to think that the GOP would refrain from jurisdiction stripping, if they thought for a second that they would gain advantage from it. So I donât see why the Democrats should refrain from it, if the situation warrants it. Or in short - I donât think the Democrats should rule out any systems of recourse which are given to them within the constitution. Because the other side will not.
And I think that is the kicker - if the choice is between moving power between the Courts or Congress, the best place for that power to reside is in Congress.
I hope Democratic politicians understand this. I thought Pelosi was the right choice as leader in 2018, and I think the past two years have pretty much vindicated that belief. I really, really hope that she will also prove to be the right leader from 2020 and onwards.
IANAL but isnât the Constitution the supreme law, so any law passed by Congress and signed by the president that violates the Constitution is a law that can be struck down by SCOTUS?
For example, should there be a law passed that outlaws handguns SCOTUS could strike that down, using the second amendment as justification?
magnet
5967
The Constitution is the supreme law. But the Constitution does not give the SCOTUS the power to strike down laws that violate the Constitution.
That seems to be problematic. Shouldnât some body have the authority to rule on laws? Isnât the whole idea of precedent based on the original law and subsequent intrepretations of it?
Alstein
5969
I feel like the remedy to an overpowerful/unlawful court is court-stacking, or reorganizing courts.
Just like how the court deals with overpowerful state legislatures.
magnet
5970
Sure. But in theory, that body would be authorized by law, which means an act of Congress. And in theory it could take any form. The task of determining whether a law is constitutional could in theory be assigned to a congressional committee, an executive officer, or even a special court with rotating judges that convenes when called upon by Congress.
But since nobody had taken the job in 1803, the entire judiciary took it upon themselves. Since they arenât formally authorized to do it, Congress could in theory find someone else for the job.
Banzai
5971
As I understand it, Congress was given the most power since it is elected by the people and not appointed like SC judges, so Congress and the laws that they pass are supposed to be the ultimate way to fix problems. If the SC says something is uncontitutional, then an amendmend to the constitution would be the way to fix it, which is problematic in practice in a two party system unless there is enormous public support.
Menzo
5972
You call it problematic that the Constitution canât be changed without enormous public support? That seems to me to be the point.
magnet
5973
No, the problem is that it takes a 3/4ths majority of the states and 2/3rds of Congress to overrule 5 justices.
CraigM
5975
I mean given the founders intended to scrap and redo the constitution on a regular basis I find this a highly suspect assertation.
Well, they wrote the rules for amending it too, no?
We just watched What the Constitution Means To Me on Amazon Prime and enjoyed it muchly. I recommend it!
Banzai
5978
Itâs the two party part that is problematic - cause as we have seen, the GOP wonât work with dems even with enormous public support.
On the other hand, it has been amended fairly regularly. Setting aside the first 10 amendments, which were enacted shortly after the Constitution was adopted, there have been 17 amendments in just about 200 years. 15 of those have been ratified since the end of the Civil War.
Theyâre impossible now because one party is insane, not because the process is unworkable.
