This is confusing. You claim that we have "minority rule" when certain things have to be done through Congress ... but by implication you prefer these decisions be made by SCOTUS (an unelected "minority" if there ever was one)?
The Republican SCOTUS feels that it should have completed unchecked power to invalidate any laws or policies to which it is ideologically opposed. Its power has never been checked. It has only ever usurped and expanded its power, and only ever moderated under the threat of being packed. The constitution gives Congress the explicit power to set the jurisdiction of the supreme court, which to my knowledge, has never been used to restrict their power.
The Republican supreme court believes all policy decisions should be left to the legislative branch, not because Congress cannot delegate authority, but because the filibuster completely guarantees that nothing can become law without a 60-vote supermajority in the Senate, which in the current political environment means votes from several members of the hyper partisan Republican party.
It's like all the celebration of George Washington relinquishing power after two terms. "Wow no one has done that before! So progressive!" But he was a property owner, in a country where only property owners could vote, and he knew that only property owners would hold any elected positions in the US government. He knew that the political interests of landowners would take precedence over all others, so why would he care who ran the country? This is the situation with our Congress. Nothing can pass without a supermajority in the Senate, requiring hyper partisan Republicans to give Democrats a win, which they will not do.
“Tyranny of the minority” is even worse and that’s what we are seeing now. This Court isn’t upholding minority rights against the State, it’s doing the reverse, taking away rights from minorities (poor women without easy access to travel to another state if necessary).
We have six jurists with an extremist legal view called “originalism” which is “let’s imagine I’m a white male in 1800, what would I think about X”. The first Supreme Court decision to mention originalism was in 1994, when Scalia dissented because he thought juveniles should be executed.
Justice Scalia basically agreed with you: gridlock is essential for protecting minority interests.
> And I hear Americans saying this nowadays, and there's a lot of it going around. They talk about a "dysfunctional government" because there's disagreement. And the Framers would have said, "Yes, that's exactly the way we set it up. We wanted this to be power contradicting power -- because the main ill that beset us" -- as Hamilton said in The Federalist when he talked about a separate Senate -- He said, "Yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad." This is 1787 -- he didn't know what an excess of legislation was.
> So, unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the Framers believed would be the main protection of minorities -- the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system.
> So, Americans should appreciate that and they should learn to love the gridlock. It's there for a reason -- so that the legislation that gets out will be good legislation.
I have much more faith in democracy, flawed as it is, than the Supreme Court.
> Surely you see the point of the US being a republic; rule by law, not by men.
Men wrote the laws.
> In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum. That kind of thing has happened countless times in history in countries that didn't have a strong court system capable of protecting people's rights from the tyrrany of the majority.
I agree the Supreme Court has effectively protected minority rights: the minority of wealthy property owners. I'm somewhat confident that the historical list of Supreme Court injustices that served to oppress vulnerable minorities (e.g. Dred Scott and Japanese internment) is longer than the list of times the Supreme Court has lifted those same minorities up.
I agree that the sheer power and reach of SCOTUS today, and increased partisanship in practice (even though everyone pretends it's a non-partisan body), does necessitate some reform. But electing judges makes no sense - you might as well then just give the fullness of power to Congress, a la UK's parliamentary sovereignty.
What I think we should do is revisit what exactly SCOTUS does, and why. Right now they basically have the final say in any question of constitutionality, and the outcomes are either "it's constitutional" or "it's unconstitutional". I think that's wrong - the third possible outcome should be "Constitution is ambiguous on this". Currently this gets folded into one of the other options, depending on the majority of the court, but I think it's a poor model - if Constitution really is ambiguous, I don't want a simple majority of a few unelected people, many of whom are quite partisan, to make that decision.
Instead, I think this option (ambiguity) should be explicit. The way it would work is something like this - if the court decision is unanimous (or maybe with at most one dissenter) one way or the other, then it's assumed that the Constitution is really unambiguous on the subject, and that's the ruling - same as now.
But if you get a bigger split, then the ruling is automatically "ambiguous". At that point all the disagreeing parties on the court should have to sit down and write a short opinion on what changes to the Constitution they would require to make the other side's opinion unambiguously correct (if there are more than two sides - which can be the case if different judges rule the same way for different and unrelated reasons - then such opinions should be written for all parties other than the one in question).
Then, those opinions are automatically submitted as proposed constitutional amendments to the states for ratification, per usual procedure, except that each state can only ratify one at a time, and there's a reasonable time limit. If one of the amendments wins, then (since all judges have already stated under oath that this is what is required to remove any ambiguity) the ruling is in favor of the corresponding opinion.
If none of the amendments get the requisite majority of state ratifications, then court decides based on simple majority, just like today - but the resulting decision is not considered binding precedent, and only applies to that one case. If the same ambiguity arises in future cases, the process has to be repeated.
Ideally, this should be combined with a lower bar for constitutional amendments - 3/4 of states is really quite ridiculous, given the sheer number of them, and population differences. Something like 2/3 would be more sensible. Although ideally it should incorporate direct popular vote in a referendum as well, in a series of cascading vetoes to check each other - e.g. 2/3 of popular vote is enough to amend, but a simple majority of states can veto that, but 3/4 of popular vote can override the veto.
SCOTUS is a legal institution that interprets laws given the facts and case in front of them. It is not their job to ratify Executive powers in the absence of Congressional action. They are not, nor should they be, a backup Congress.
> 84 percent of Americans reportedly oppose it, and I often have a hard time understanding how the Supreme Court hasn't struck it down
That is because you shouldn't be looking to SCOTUS to decide cases based on popular vote. That's the responsibility of state and federal legislatures, either by adding constitutional laws or changing the constitution.
SCOTUS' job is just to make sure those laws are legal and followed. So only legal arguments are relevant.
It might be perfect accountability [1] but under this supreme court it might be found unconstitutional. It's not actually clear whether congress is allowed delegate their power to another branch of government. In fact if you take the constitution in context with the British law it was inspired by it's explicitly prohibited.
It's already something that has been legally contentious, overturning it has textualist support, and the textualists justices are also broadly Republican who want a weakened federal government.
[1] I mean not really perfect since they have to pass legislation to make those changes and it's easier to block legislation than to pass it. So a minority party in congress with presidential support can (and has) wielded undue legislative power.
You're splitting hairs. The Supreme Court is absolutely a check on majority rule--even if it's also the case that it can effectively be over-ridden by a supermajority that goes through a typically lengthy constitutional amendment process. That it's a check doesn't mean that it has absolute final say for all time.
I think it is not SCOTUS' job to clean up the congress created mess and Scalia was cranky because of that.
I think that Scalia strongly believed in laws are set in stone. So if there is some abmiguity or stupid language it is the Congress' fault and it is not up to SCOTUS to create laws on the fly by guestimating the congress intent.
I'm not exactly advocating for the power SCOTUS has, there are a whole host of things like the case you pointed out. I speaking more in principle that "mob rule" doesn't end well for those not in the mob
SCOTUS wants Congress to do its job of making laws, instead of having an unconstitutional fourth branch of government exercises all the powers of the other three branches. The system of checks and balances you learned in school has become a farce, with agencies making rules with the force of law, prosecuting violators for breaking those rules, and adjudicating those violations in their own administrative court systems.
That's because he's a "check and balance" on the legislative branch, not part of it. Congress "checks" the other branches by approving nominees and controlling their budgets.
And then effectively nobody checks SCOTUS, which is kind of a problem.
My mistake...it was not unanimous, but 6-3 like most decisions lately. However I will add comments by congress are just pushing my point further.
"They are expanding their role into acting as though they are Congress itself and that, I believe, is an expansion of power that we really must be focusing on," Ocasio-Cortez, a Democrat from New York, said.
SCOTUS is not expanding their role...they are restricting executive powers and making congress do their job.
Is the Supreme Court elected now? When did I vote to have the Supreme Court stacked in such a way?
And if your argument is 'congress is in deadlock so no rules ought to be made' then fine. Except the Supreme Court is continuing to make up rules during that deadlock, many of which have a direct and measurable impact on my daily quality of life.
I think we have a slight misunderstanding. I'm not saying that the Supreme Court doesn't make decisions that are not popular. I'm simply responding to the original claim that the Supreme Court exists so the majority doesn't have absolute power, as you originally stated. This we now apparently agree on.
Now, as for the rest of your post - I completely agree.
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