Answering Peter Robinson on SCOTUS and Gay Marriage

 

Peter posed a question earlier today: If the Supreme Court legalizes gay marriage, how should we respond? I defer to Richard Epstein’s views on the comparison between Dred Scott, Lochner, and gay marriage. I think that Robert P. George rightly warns of the dangers of the use of the due process clause by judges to advance their personal policy preferences. There are surely similarities between the Court’s use of substantive due process in all three periods. I think that a decision imposing gay marriage on the nation incorrectly reads our constitutional structure, just as Dred Scott mistakenly interpreted the Constitution’s original understanding of federal and state control over slavery and freedom.

But there is an important difference here, one that shouldn’t affect their legal decision but will control the political response. A majority of Americans support gay marriage now, as opposed to 2008. There will be no groundswell of opposition to the Court on gay marriage in the way there was against Dred Scott.

The most there will be, I predict, will be opposition of the kind that arose in response to Roe v. Wade — gay marriage could become an important issue in debates about values and judicial appointments. But there won’t be widespread resistance and successful presidential candidates who promise to under-enforce the decision because the majority of Americans will agree with the outcome, even if they disagree with the way our society reached it.

Published in Law, Marriage
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  1. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “The opinion that the Supreme Court knows best.”

    I thought you said you didn’t object to judicial review per se, but thought that the doctrine should be revised? Well, the doctrine of judicial review is inextricably premised on the belief that, “It is emphatically the province and duty of the Judicial Department [judges] to say what the law is.” Marbury v. Madison, 5 U.S. 137 (1803).

    Do you see why I’m a bit confused about how you propose to revise the doctrine of judicial review?

    • #151
  2. x Inactive
    x
    @CatoRand

    Salvatore Padula:Titus: “The opinion that the Supreme Court knows best.”

    I thought you said you didn’t object to judicial review per se, but thought that the doctrine should be revised? Well, the doctrine of judicial review is inextricably premised on the belief that, “It is emphatically the province and duty of the Judicial Department [judges] to say what the law is.” Marbury v. Madison, 5 U.S. 137 (1803).

    Do you see why I’m a bit confused about how you propose to revise the doctrine of judicial review?

    I’m generally confused by our new friend Sal, and if this was two years ago, I’d probably go round and round trying to pin him down like I’ve done with others.  But if I’ve learned nothing else from that exercise, I’ve learned that minds are not changed, and that with no arbiter to call balls and strikes, your adversary will always wriggle away on a forum like this.  C’est la vie.

    • #152
  3. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “Do not play coy with me: Who decides when statutes are constitutional?”

    I don’t think anyone’s playing coy with you. We are disputing your assertion that judicial review was intended to be a “small power.” My reading of that claim is that you could have meant “small power” in two different ways.

    The first is that you think judicial review should only be exercised when a statute is well beyond what the Constitution permits. If that is the case I disagree with you. The Constitution permits what it permits and doesn’t permit anything else. There is no such thing as being slightly unconstitutional.

    The second possible meaning is that you think that the frequency with which courts have invalidated statutes on grounds of unconstitutionality exceeds that originally envisioned. In this sense, I actually agree with you as I suspect Cato does as well. Where I think you go astray is that you seem to attribute the dramatic increase in the number of laws struck down on constitutional grounds primarily to judges, rather then to the legislators who enact increasingly large amounts of unconstitutional legislation.

    Now, it is absolutely true that the Warren Court went on a bit of a spree finding new constitutional rights and I certainly don’t agree with much of current American constitutional jurisprudence, but that isn’t really a question of the proper role of judicial review. It is a question of the proper method of interpreting the constitution.

    • #153
  4. x Inactive
    x
    @CatoRand

    Salvatore Padula:Titus: “Do not play coy with me: Who decides when statutes are constitutional?”

    I don’t think anyone’s playing coy with you. We are disputing your assertion that judicial review was intended to be a “small power.” My reading of that claim is that you could have meant “small power” into different ways.

    The first is that you think judicial review should only be exercised when a statute is well beyond what the Constitution permits. If that is the case I disagree with you. The Constitution permits what it permits and doesn’t permit anything else. There is no such thing as being slightly unconstitutional.

    The second possible meaning is that you think that the frequency with which courts have been validated statutes on grounds of unconstitutionality exceeds that originally envisioned. In this sense, I actually agree with you as I suspect Cato does as well. Where I think you go astray is that you seem to attribute the dramatic increase in the number of laws struck down on constitutional grounds primarily to judges, rather then to the legislators who enact increasingly large amounts of unconstitutional legislation.

    Now, it is absolutely true that the Warren Court went on a bit of a spree finding new constitutional rights and I certainly don’t agree with much of current American constitutional jurisprudence, but that isn’t really a question of the proper role of judicial review. It is a question of the proper method of interpreting the constitution.

    I concur with everything Sal said here.  And let me add, Titus, that there is a very compelling argument that the bulk of the administrative state is unconstitutional.  Were the Court to have the courage to so hold, I suspect you’d be cheering right along with Sal and I.

    • #154
  5. MJBubba Inactive
    MJBubba
    @MJBubba

    Cato Rand:

    Salvatore Padula:

    Now, it is absolutely true that the Warren Court went on a bit of a spree finding new constitutional rights and I certainly don’t agree with much of current American constitutional jurisprudence….

    I concur with everything Sal said here. And let me add, Titus, that there is a very compelling argument that the bulk of the administrative state is unconstitutional. Were the Court to have the courage to so hold, I suspect you’d be cheering right along with Sal and I.

    Wow, Cato,  here is another something we can agree on.

    • #155
  6. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: I don’t think anyone’s playing coy with you. We are disputing your assertion that judicial review was intended to be a “small power.”

    The reason I say you’re playing coy is, you refuse to say, who decide what is constitutional? This is where you & your friend must join the fight against me. If it’s SCOTUS, then I say you want a tyranny of five to nine lawyers. These people could tomorrow decide whatever they like! Because it’s an authorized court of justice, citizens & statesmen are bound to obey its decisions–but no on is bound to believe its opinions are true or to apply their principles.

    I say, every authorized power under the Constitution decides for itself what is constitutional & what is not–& can fight SCOTUS on its opinions, though it obeys the decision in the particular case decided. That is why I say, there is a power of judicial review, but it is not a great power. SCOTUS can decide cases, but not compel obedience as to principles it establishes in its opinions, else it is tyranny.

    Again, I do not claim I have invented something here–I am only telling you what you should have learned from Lincoln. Unless, of course, you think he was wrong–in that case, you will have to disprove his claim that SCOTUS is playing tyrant. There are only two great powers, one is in Congress–the power to alter the Constitution, though not alone–the other in the President–the power implied in the oath of office & usually revealed in war powers. The Constitution created these powers or recognized them, if you have a mind for political science, because they are necessary to the system–both, obviously, go beyond anything SCOTUS can do. I do not believe that if the elected branches decide to destroy the constitutional system by those powers SCOTUS can do anything about it. Such are the powers, such are the limits of free gov’t, as opposed to gov’t by SCOTUS majorities.

    What is at stake, again, is not the degree of unconstitutionality, but who decides what is constitutional. I am saying, again & again, that I think everyone decides & no authorized power under the Constitution is supposed to obey SCOTUS unconditionally. As a matter of justice, cases decided the way SCOTUS wants to decide them are accepted. Of course, then the Congress or President can pass new legislation or issue pardons or however otherwise use their powers to deny the courts their desired outcome.

    But as a matter of constitution–no one is bound to believe what a majority of SCOTUS decides. No one today is bound to believe that Roe is justice or the American constitution–it’s just political prudence & political incompetence that allow this to go on, for no other reason than prudence, no other motive than pusillanimity. Not because Roe is the Constitution or the new Constitution or SCOTUS’s newer fashion. Ditto Dredd Scott: Obey the  court in that case, refuse to obey it as to principle. The same is true of all cases where the political branches hold that SCOTUS is wrong.

    We do agree on a lot of the political facts. Our disagreement is on political principle. I do not believe SCOTUS was supposed to be the arbiter of the Constitution. Judicial review is not the power to create or recreate the Constitution. It is therefore also not the power to defend the constitution. That power lies only in the elected branches.

    • #156
  7. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:I concur with everything Sal said here. And let me add, Titus, that there is a very compelling argument that the bulk of the administrative state is unconstitutional. Were the Court to have the courage to so hold, I suspect you’d be cheering right along with Sal and I.

    You’ll find it harder to agree with me than you seem to think. I am not a reasonable man. I am obstinate. I do not believe SCOTUS is in a position to roll back everything FDR & his epigones have done to your country. He was a great men; SCOTUS cannot compare.

    Maybe if SCOTUS seizes on to a political opinion as it is adopted by politicians & the people, so that the partisans of the administrative state are weak or fearful, it could impel a political revolution or deliver the final blow to the damned enormous being of the state. But it has not the power by itself to decide such things or to effect them, unlike the political branches.

    There is a difficulty with distinguishing the power to revolutionize the federal gov’t from the power SCOTUS might have in a given decision–I am not sure I am competent to talk about it in any given case, because I have no expertise. But as a general matter, I hold that SCOTUS cannot accomplish the revolution & should not try–it may only lead some part of it or finish it off when once it is done. Both of these cases require prudence, whence the difficulty…

    I suppose conservatives have been waiting for three generations for SCOTUS to give them what they cannot or will not take through the political branches. I suppose they will wait generations more. Conservatives are too impotent to repeal Roe, much less the enormous being…

    • #157
  8. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand:I concur with everything Sal said here. And let me add, Titus, that there is a very compelling argument that the bulk of the administrative state is unconstitutional. Were the Court to have the courage to so hold, I suspect you’d be cheering right along with Sal and I.

    You’ll find it harder to agree with me than you seem to think. I am not a reasonable man. I am obstinate. I do not believe SCOTUS is in a position to roll back everything FDR & his epigones have done to your country. He was a great men; SCOTUS cannot compare.

    Maybe if SCOTUS seizes on to a political opinion as it is adopted by politicians & the people, so that the partisans of the administrative state are weak or fearful, it could impel a political revolution or deliver the final blow to the damned enormous being of the state. But it has not the power by itself to decide such things or to effect them, unlike the political branches.

    There is a difficulty with distinguishing the power to revolutionize the federal gov’t from the power SCOTUS might have in a given decision–I am not sure I am competent to talk about it in any given case, because I have no expertise. But as a general matter, I hold that SCOTUS cannot accomplish the revolution & should not try–it may only lead some part of it or finish it off when once it is done. Both of these cases require prudence, whence the difficulty…

    I suppose conservatives have been waiting for three generations for SCOTUS to give them what they cannot or will not take through the political branches. I suppose they will wait generations more. Conservatives are too impotent to repeal Roe, much less the enormous being…

    No, I don’t think anybody’s holding their breath.  Give us a little credit please.

    • #158
  9. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “I say, every authorized power under the Constitution decides for itself what is constitutional & what is not–& can fight SCOTUS on its opinions, though it obeys the decision in the particular case decided.”

    So you’re not opposed to judicial review so much as you are opposed the general way the common law works and to the hierarchical structure of the court system?

    • #159
  10. x Inactive
    x
    @CatoRand

    Titus Techera:

    Salvatore Padula: I don’t think anyone’s playing coy with you. We are disputing your assertion that judicial review was intended to be a “small power.”

    The reason I say you’re playing coy is, you refuse to say, who decide what is constitutional? This is where you & your friend must join the fight against me. If it’s SCOTUS, then I say you want a tyranny of five to nine lawyers. These people could tomorrow decide whatever they like! Because it’s an authorized court of justice, citizens & statesmen are bound to obey its decisions–but no on is bound to believe its opinions are true or to apply their principles.

    I say, every authorized power under the Constitution decides for itself what is constitutional & what is not–& can fight SCOTUS on its opinions, though it obeys the decision in the particular case decided. That is why I say, there is a power of judicial review, but it is not a great power. SCOTUS can decide cases, but not compel obedience as to principles it establishes in its opinions, else it is tyranny.

    Again, I do not claim I have invented something here–I am only telling you what you should have learned from Lincoln. Unless, of course, you think he was wrong–in that case, you will have to disprove his claim that SCOTUS is playing tyrant. There are only two great powers, one is in Congress–the power to alter the Constitution, though not alone–the other in the President–the power implied in the oath of office & usually revealed in war powers. The Constitution created these powers or recognized them, if you have a mind for political science, because they are necessary to the system–both, obviously, go beyond anything SCOTUS can do. I do not believe that if the elected branches decide to destroy the constitutional system by those powers SCOTUS can do anything about it. Such are the powers, such are the limits of free gov’t, as opposed to gov’t by SCOTUS majorities.

    What is at stake, again, is not the degree of unconstitutionality, but who decides what is constitutional. I am saying, again & again, that I think everyone decides & no authorized power under the Constitution is supposed to obey SCOTUS unconditionally. As a matter of justice, cases decided the way SCOTUS wants to decide them are accepted. Of course, then the Congress or President can pass new legislation or issue pardons or however otherwise use their powers to deny the courts their desired outcome.

    But as a matter of constitution–no one is bound to believe what a majority of SCOTUS decides. No one today is bound to believe that Roe is justice or the American constitution–it’s just political prudence & political incompetence that allow this to go on, for no other reason than prudence, no other motive than pusillanimity. Not because Roe is the Constitution or the new Constitution or SCOTUS’s newer fashion. Ditto Dredd Scott: Obey the court in that case, refuse to obey it as to principle. The same is true of all cases where the political branches hold that SCOTUS is wrong.

    We do agree on a lot of the political facts. Our disagreement is on political principle. I do not believe SCOTUS was supposed to be the arbiter of the Constitution. Judicial review is not the power to create or recreate the Constitution. It is therefore also not the power to defend the constitution. That power lies only in the elected branches.

    The decision of what is unconstitutional is diffuse.  All federal officers have a duty to uphold the Constitution, and much that is unconstitutional never happens because believe it or not, the political branches have some feeling for constitutional limits, even if they’re forever trying to push them.  In a case or controversy in which a party claims to be aggrieved by a statute that exceeds some constitutional limit, however, it is the courts’ job to decide.  Judicial review is a legitimate part of the constitutional structure and if you go back and look at the records of the constitutional convention, you will see that it was understood and expected that it should be.  What you are arguing about is whether it has been abused (it has been, we all agree on that), not whether it is properly there.  Or, if you are arguing that it is not a proper function of the courts at all, you are simply wrong.

    • #160
  11. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula:Titus: “I say, every authorized power under the Constitution decides for itself what is constitutional & what is not–& can fight SCOTUS on its opinions, though it obeys the decision in the particular case decided.”

    So you’re not opposed to judicial review so much as you are opposed the general way the common law works and to the hierarchical structure of the court system?

    You’re getting closer, I guess. The things that really concern me have nothing to do with common law: It’s SCOTUS dealing with statutes–I’ll spare you the suspense, SCOTUS tends to decide SCOTUS is the sole arbiter of the Constitution. There’s a long conversation somewhere in this dispute of ours, about the relation between common law & the authorized powers under the Constitution, but let’s leave it for another time. I think SCOTUS should be confronted when its decisions are insane. I think the elected branches have the constitutional authority to do so. I think all it takes, in the best cases, is to pass another statute which exempts itself from judicial review. There are other ways, too.

    • #161
  12. user_653084 Inactive
    user_653084
    @SalvatorePadula

    Titus: “I think SCOTUS should be confronted when its decisions are insane.”

    Okay, I have two points about this:

    1) How do you think that the Supreme Court should be challenged? I know you have said that you think each court and legislature should be able to interpret the constitutionality of a provision independently, and without reference to the Supreme Court precedent, but that simply is not the way the American legal system works, or has ever worked. You’ve stated that the holdings of Supreme Court decisions should be limited in applicability to the specific case decided, but again that is not the way our legal system works. Also, I’m a little surprised that you seem to think that legislatures and lower courts would be more faithful to the constitution. Lower courts do all sorts of crazy things all the time and politicians pass legislation that is blatantly unconstitutional. Earlier, I believe you cited Plessy v. Ferguson as an example of an overreaching Supreme Court. This seems to ignore the fact that Plessy involved the Supreme Court I’m holding the constitutionality of democratically and acted segregation laws. These sort of unconstitutional laws were only stopped when the Supreme Court exercise judicial review in Brown v. Board of Education. If we were to follow your proposal that Supreme Court decisions are only applicable to this specific case decided segregation would be unconstitutional in Topeka Kansas, but not necessarily anywhere else.

    2) You’ve stated that Supreme Court decisions should be challenged when they are insane. It would seem that the best grounds for challenging such decisions would be that they are in fact wrongly decided and not by asserting an ahistorical argument that judicial review should be constrained in the way you propose.

    • #162
  13. Instugator Thatcher
    Instugator
    @Instugator

    I thought the only way to challenge a SCOTUS decision was to amend the law (either the statute in question or the supreme law of the land).

    • #163
  14. user_653084 Inactive
    user_653084
    @SalvatorePadula

    It is.

    • #164
  15. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:The decision of what is unconstitutional is diffuse. All federal officers have a duty to uphold the Constitution, and much that is unconstitutional never happens because believe it or not, the political branches have some feeling for constitutional limits, even if they’re forever trying to push them. In a case or controversy in which a party claims to be aggrieved by a statute that exceeds some constitutional limit, however, it is the courts’ job to decide.

    Again, we are agreed on this & I am surprised that we have to keep saying it. My disagreement is this: The courts can decide the case, but they have no power by themselves to set precedent or to teach true interpretations to the elected branches. The people, through Congress, may, by amend, show just what they think of SCOTUS. All SCOTUS can offer is opinions which, by circumstances beyond their grasp, may be taken in their full implications–or not. Everyone is bound to obey the decision in a case, nothing more. Everything beyond that is disputable.

    Judicial review is not the final word on the Constitution. It has its place in American politics, but it is no master of the elected branches, which can do their damnedest to frustrate each & all decisions going beyond the specifics of the case under review.

    We seem to be disagreeing on this matter, should the powers authorized by the Constitution simply obey the Court as to precedent, as different to the decision in the specific case under review? I say no–I am not sure that you’re saying yes. Are you?

    • #165
  16. Ricochet Contributor
    Ricochet
    @TitusTechera

    Salvatore Padula: 1) How do you think that the Supreme Court should be challenged? I know you have said that you think each court and legislature should be able to interpret the constitutionality of a provision independently, and without reference to the Supreme Court precedent, but that simply is not the way the American legal system works, or has ever worked.

    I think you need first to consider moments of crisis. Then politicians & SCOTUS clash. Who wins usually? Politicians have ignored SCOTUS, got it to reverse itself, or changed the people on SCOTUS. Let’s not be too impressed with SCOTUS, therefore.

    I’m sure the popular opinion about law, as well as the profession of faith of the magistrates & officers of the various political offices all require that, for the most part, SCOTUS decisions should be accepted & obeyed. In good times, that has to be the rule for all citizens, at least so long as SCOTUS does not take that kind of deference to mean it should start issuing rules about whatever it damned well pleases. It is fear of politicians & public opinion that restrains SCOTUS–which is what the Constitution designed.

    But crisis reveals a deep truth: All this obedience depends not on the power of SCOTUS, but on its wise restraint. Getting in the middle of political fights is a bad idea–partly, because SCOTUS is so famously incompetent, but partly because Constitutional issues that are really serious, that is to say, that threaten to destroy the Constitution, are up to the properly political branches.

    You’ve stated that the holdings of Supreme Court decisions should be limited in applicability to the specific case decided, but again that is not the way our legal system works.

    Well, really? FDR got rid of a SCOTUS he did not like & god one he did. It was all on the up & up, too. If you can get rid of SCOTUS, you can construe decisions narrowly, to the case, refusing the precedent. Surely, narrow construction is exactly what Lincoln said about Dred Scott & he was the man to decide, not you & me… Gen. Jackson vetoed the bank he found unconstitutional, amusingly noting that Congress also found it now constitutional & then unconstitional…

    Also, I’m a little surprised that you seem to think that legislatures and lower courts would be more faithful to the constitution. Lower courts do all sorts of crazy things all the time and politicians pass legislation that is blatantly unconstitutional.

    You think I think any authorized power in America is going to be faithful to the Constitution? Again, you make me smile. I think things go on without too much trouble & man’s mortality sets limits to his devilish penchant to mess about with a Constitution the work of better men than most, & whose like we shan’t see again. It is not to virtue or loyalty or faith alone that we look, but also to interest &, especially, partisanship. Like Lincoln, I rest my faith in your Constitution upon the pugnacious character of the American, unlikely to obey or give up a good fight. Ultimately, the promise of constitutional politics is, you get to avoid another civil war. Usually, that’s enough. Winners bully losers, but do not remain winners in perpetuity…

    Earlier, I believe you cited Plessy v. Ferguson as an example of an overreaching Supreme Court. This seems to ignore the fact that Plessy involved the Supreme Court holding the constitutionality of democratically and acted segregation laws.

    My point about Plessy is that, when it counts, SCOTUS is a misery. This is not to say there are no great dissents–like Justice Harlan’s. But that’s cold comfort.

    If SCOTUS had been anything like what you seem to imagine, people would have had to say, the American courts are lining up behind terrible injustice! You can only do that so often. In reality, Americans took Roe as an invitation to change SCOTUS & get another decision, which shows precious little respect for SCOTUS. It’s preferable to live with this than to promote civil war. Lawless order is preferable to moralistic civil war. But nobody who knows what Roe means can say SCOTUS knows the Constitution or has the power to decide what it mens!

    These sort of unconstitutional laws were only stopped when the Supreme Court exercise judicial review in Brown v. Board of Education. If we were to follow your proposal that Supreme Court decisions are only applicable to this specific case decided segregation would be unconstitutional in Topeka Kansas, but not necessarily anywhere else.

    This is a tricky case. Partly, because Justice Warren does not seem to have ever tried to understand the Constitution. Partly, because it is again a major reversal, which shows how pathetic SCOTUS is. The political branches dispute questions–that’s what we mean by deliberation. But justice is not supposed to allow for such changes. All the weakness of the legislature is magnified by the pretense of knowledge… Had SCOTUS just brought back Justice Harlan’s dissent, that would have been fine by me.

    Now, as to how people interpret the decision in the case, yes, you are right, decisions that comport with justice could be truncated by unpleasant persons of some authority. I do not propose that my understanding of Lincoln’s argument is going to produce great outcomes always, or even most of the time. Just that it’s likelier to uphold the Constitution & to give people political recourse. Unlike your interpretation, which means surrender to Roe. What would you have done about Dred Scott except obey the decision in the case, then tell SCOTUS they do not get to rewrite the Constitution!

    2) You’ve stated that Supreme Court decisions should be challenged when they are insane. It would seem that the best grounds for challenging such decisions would be that they are in fact wrongly decided and not by asserting an ahistorical argument that judicial review should be constrained in the way you propose.

    I’m not sure what history you’ve read, but you should at least know whereof I speak. I have had occasion to tell you, & I’ll take the chance to tell you again–Lincoln said it & he quoted also the example of Gen. Jackson. That is historical. But if you mean, SCOTUS never agreed, well, that would make me smile… Back to the history: If you disagree, please explain. If, however, you have some other history that seems to you relevant–please let me know what it is.

    • #166
  17. Ball Diamond Ball Inactive
    Ball Diamond Ball
    @BallDiamondBall

    The Court under Roberts has beclowned itself in the name of preserving its own dignity.  The problem is that it threw the Constitution under the bus to do so, undermining its legitimacy.

    These days there are no restraints upon any of the three branches except those self-imposed by timid and comfortable men.

    I want to kick a hole in stare decisis big enough to drive a restoration through.  If we cannot push back against the court, then all that is left is the final layer of dead hands of the past, still twitching on the page.

    • #167
  18. x Inactive
    x
    @CatoRand

    Titus Techera:

    Cato Rand:The decision of what is unconstitutional is diffuse. All federal officers have a duty to uphold the Constitution, and much that is unconstitutional never happens because believe it or not, the political branches have some feeling for constitutional limits, even if they’re forever trying to push them. In a case or controversy in which a party claims to be aggrieved by a statute that exceeds some constitutional limit, however, it is the courts’ job to decide.

    Again, we are agreed on this & I am surprised that we have to keep saying it. My disagreement is this: The courts can decide the case, but they have no power by themselves to set precedent or to teach true interpretations to the elected branches. The people, through Congress, may, by amend, show just what they think of SCOTUS. All SCOTUS can offer is opinions which, by circumstances beyond their grasp, may be taken in their full implications–or not. Everyone is bound to obey the decision in a case, nothing more. Everything beyond that is disputable.

    Judicial review is not the final word on the Constitution. It has its place in American politics, but it is no master of the elected branches, which can do their damnedest to frustrate each & all decisions going beyond the specifics of the case under review.

    We seem to be disagreeing on this matter, should the powers authorized by the Constitution simply obey the Court as to precedent, as different to the decision in the specific case under review? I say no–I am not sure that you’re saying yes. Are you?

    You have to have spilled about 10,000 words on this without being able to just spit that out before.  We don’t disagree about this point.  The political branches are not per se, bound to generalize a judicial ruling about the constitution and apply it to everyone.  It only technically applies to the parties involved.  As a matter of sanity, the political branches tend to generalize the rulings of SCOTUS because the lower courts will follow it, and forcing everybody to go to federal court to enforce constitutional rights which SCOTUS precedent clearly says they have seems a ridiculous waste of everybody’s time and money.  That, in practice and for good reason, often makes judicial review the final word.  But it technically need not be and sometimes isn’t.  Interestingly, there was just an editorial in the NYT about the Obama administration taking that tact w/r/t King v. Burwell.  I wonder if that’s where you got it from?

    • #168
  19. x Inactive
    x
    @CatoRand

    Titus Techera:

    Salvatore Padula: 1) How do you think that the Supreme Court should be challenged? I know you have said that you think each court and legislature should be able to interpret the constitutionality of a provision independently, and without reference to the Supreme Court precedent, but that simply is not the way the American legal system works, or has ever worked.

    I think you need first to consider moments of crisis. Then politicians & SCOTUS clash. Who wins usually? Politicians have ignored SCOTUS, got it to reverse itself, or changed the people on SCOTUS. Let’s not be too impressed with SCOTUS, therefore.

    I’m sure the popular opinion about law, as well as the profession of faith of the magistrates & officers of the various political offices all require that, for the most part, SCOTUS decisions should be accepted & obeyed. In good times, that has to be the rule for all citizens, at least so long as SCOTUS does not take that kind of deference to mean it should start issuing rules about whatever it damned well pleases. It is fear of politicians & public opinion that restrains SCOTUS–which is what the Constitution designed.

    But crisis reveals a deep truth: All this obedience depends not on the power of SCOTUS, but on its wise restraint. Getting in the middle of political fights is a bad idea–partly, because SCOTUS is so famously incompetent, but partly because Constitutional issues that are really serious, that is to say, that threaten to destroy the Constitution, are up to the properly political branches.

    You’ve stated that the holdings of Supreme Court decisions should be limited in applicability to the specific case decided, but again that is not the way our legal system works.

    Well, really? FDR got rid of a SCOTUS he did not like & god one he did. It was all on the up & up, too. If you can get rid of SCOTUS, you can construe decisions narrowly, to the case, refusing the precedent. Surely, narrow construction is exactly what Lincoln said about Dred Scott & he was the man to decide, not you & me… Gen. Jackson vetoed the bank he found unconstitutional, amusingly noting that Congress also found it now constitutional & then unconstitional…

    Also, I’m a little surprised that you seem to think that legislatures and lower courts would be more faithful to the constitution. Lower courts do all sorts of crazy things all the time and politicians pass legislation that is blatantly unconstitutional.

    You think I think any authorized power in America is going to be faithful to the Constitution? Again, you make me smile. I think things go on without too much trouble & man’s mortality sets limits to his devilish penchant to mess about with a Constitution the work of better men than most, & whose like we shan’t see again. It is not to virtue or loyalty or faith alone that we look, but also to interest &, especially, partisanship. Like Lincoln, I rest my faith in your Constitution upon the pugnacious character of the American, unlikely to obey or give up a good fight. Ultimately, the promise of constitutional politics is, you get to avoid another civil war. Usually, that’s enough. Winners bully losers, but do not remain winners in perpetuity…

    Earlier, I believe you cited Plessy v. Ferguson as an example of an overreaching Supreme Court. This seems to ignore the fact that Plessy involved the Supreme Court holding the constitutionality of democratically and acted segregation laws.

    My point about Plessy is that, when it counts, SCOTUS is a misery. This is not to say there are no great dissents–like Justice Harlan’s. But that’s cold comfort.

    If SCOTUS had been anything like what you seem to imagine, people would have had to say, the American courts are lining up behind terrible injustice! You can only do that so often. In reality, Americans took Roe as an invitation to change SCOTUS & get another decision, which shows precious little respect for SCOTUS. It’s preferable to live with this than to promote civil war. Lawless order is preferable to moralistic civil war. But nobody who knows what Roe means can say SCOTUS knows the Constitution or has the power to decide what it mens!

    These sort of unconstitutional laws were only stopped when the Supreme Court exercise judicial review in Brown v. Board of Education. If we were to follow your proposal that Supreme Court decisions are only applicable to this specific case decided segregation would be unconstitutional in Topeka Kansas, but not necessarily anywhere else.

    This is a tricky case. Partly, because Justice Warren does not seem to have ever tried to understand the Constitution. Partly, because it is again a major reversal, which shows how pathetic SCOTUS is. The political branches dispute questions–that’s what we mean by deliberation. But justice is not supposed to allow for such changes. All the weakness of the legislature is magnified by the pretense of knowledge… Had SCOTUS just brought back Justice Harlan’s dissent, that would have been fine by me.

    Now, as to how people interpret the decision in the case, yes, you are right, decisions that comport with justice could be truncated by unpleasant persons of some authority. I do not propose that my understanding of Lincoln’s argument is going to produce great outcomes always, or even most of the time. Just that it’s likelier to uphold the Constitution & to give people political recourse. Unlike your interpretation, which means surrender to Roe. What would you have done about Dred Scott except obey the decision in the case, then tell SCOTUS they do not get to rewrite the Constitution!

    2) You’ve stated that Supreme Court decisions should be challenged when they are insane. It would seem that the best grounds for challenging such decisions would be that they are in fact wrongly decided and not by asserting an ahistorical argument that judicial review should be constrained in the way you propose.

    I’m not sure what history you’ve read, but you should at least know whereof I speak. I have had occasion to tell you, & I’ll take the chance to tell you again–Lincoln said it & he quoted also the example of Gen. Jackson. That is historical. But if you mean, SCOTUS never agreed, well, that would make me smile… Back to the history: If you disagree, please explain. If, however, you have some other history that seems to you relevant–please let me know what it is.

    You have made me yearn for the return of the 200 word comment limit.  You would be more persuasive if you were forced to be succinct.

    And while there’s some truth in all the words above about the practical sources and limits of the Supreme Court’s power, if you’re hoping for a crisis moment over SSM in which SCOTUS is the loser, I hope you’re not holding your breath while doing so.

    • #169
  20. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand: Interestingly, there was just an editorial in the NYT about the Obama administration taking that tact w/r/t King v. Burwell. I wonder if that’s where you got it from?

    I do not read the NYT except when something is recommended to me. Like Mr. Douthat’s columns. If you want to know where I got my idea, it’s Lincoln’s first inaugural. Have I had a chance previously to tell you I got this idea from Lincoln? Never mind, here’s the para:

    I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

    • #170
  21. Ricochet Contributor
    Ricochet
    @TitusTechera

    Cato Rand:And while there’s some truth in all the words above about the practical sources and limits of the Supreme Court’s power, if you’re hoping for a crisis moment over SSM in which SCOTUS is the loser, I hope you’re not holding your breath while doing so.

    We’ve been through this. I think SSM is going the liberal-libertarian way & the crisis will by a crisis only for the GOP. I’m not chipper about the prospect, or only a little. But that’s what you get for having a country where people do not see sense & turn political disagreements into a season of fun at your local federal court.

    My hope is that at least some conservatives learn that SCOTUS is their enemy in a fundamental way. America has less & less politics because deliberation is being replaced by adjudication & administration. The winners in this game, no doubt, have little reason to complain: Who would prefer the political regime to his private success? But the losers could wake up if they remember the founder of their party was not singing hymns to SCOTUS…

    • #171
  22. user_331141 Inactive
    user_331141
    @JamieLockett

    It is a tale

    Told by an idiot, full of sound and fury,

    Signifying nothing.

    • #172
  23. Ricochet Inactive
    Ricochet
    @JohnnyD

    If the SCOTUS affirms the nation-wide right of gay marriage does that mean that they would affirm the 2nd amendment rights on nation-wide concealed carry?

    • #173
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