The Power of the SCOTUS Part VII - The Bedrock of the Republic!

[LynahFan]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

The Supreme Court is not last because it is infallible. It is infallible because it is last.

Someone has to have the final word on what the Constitution says. Our process says that is the judicial branch's role. If you don't like their determination, your recourse is to change the Constitution.

Well said.

Of course there is one more recourse - to bring another suit to the courts to give them a chance to reconsider. Naturally, something would have had to change for the courts to grant cert - the national political/moral mood, some subtlety that makes your new case slightly different from the old one, etc. If you just keep bringing the same suit and expecting different results...

[joecct]

All you need to make them equal is to sprinkle them with some unicorn tears...

Lincoln has a point that it is up to every government official to act "constitutionally," and there may very well be things that come up in one's day-to-day job where the SCOTUS has not issued any relevant opinions and things are ambiguous. It would then be that person's duty to determine the meaning of the Constitution as best he can and act accordingly. If the other parties involved disagree, they can take it to the courts, all the way up to SCOTUS if necessary, to decide. Once the SCOTUS has ruled on a topic, however, that *is* the end - until there's another countermanding opinion (e.g. Plessy and then Brown) OR a Constitutional amendment.

Lincoln's "every official for himself" doctrine worked out nicely for him in the prosecution of the Civil War, but that neither makes it right nor useful in today's political structure. Might does not make right - and neither does charisma.

So, by that logic Dredd Scott, Plessy were right and it was the moral duty of every American citizen to follow in lock step with the rulings.

If we had done that, then we'd still have them.

[Jimjamesak]

So, by that logic Dredd Scott, Plessy were right and it was the moral duty of every American citizen to follow in lock step with the rulings.

If we had done that, then we'd still have them.

Well Dredd Scott got turned over by the 13th Amendment and Plessy was overturned because it was argued that "separate but equal" cannot be achieved because separation always leads to some sort of inequity, i.e. they took a different tact.

I'm sure some legal scholars can come up with valid argument but, "I don't have to listen to you" has been tried and just leads to troops and rioting.

[joecct]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Well Dredd Scott got turned over by the 13th Amendment and Plessy was overturned because it was argued that "separate but equal" cannot be achieved because separation always leads to some sort of inequity, i.e. they took a different tact.

I'm sure some legal scholars can come up with valid argument but, "I don't have to listen to you" has been tried and just leads to troops and rioting.

My retort is that if nobody opposed them, then they would not have been overturned. But because people thought that Dredd Scott and Plessy (among others) were incorrect decisions of the SCOTUS, they were overturned either by the amendment process or by successful suits before the Courts.

[LynahFan]

So, by that logic Dredd Scott, Plessy were right and it was the moral duty of every American citizen to follow in lock step with the rulings.

If we had done that, then we'd still have them.

Read. Think. Post.

In that order, please.

[5mn_Major]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

http://talkingpointsmemo.com/livewir...rriage-alabama

What could happen to a state's SC justice if he goes against a SCOTUS ruling? Can he be removed from the bench? Disbarred? (IIRC, you don't need to be a lawyer to be on the SCOTUS.) Could only the citizens of Alabama punish him? If so, what's to stop other justices from doing the same thing without worry of punishment?

A 25 day delay to get you license is an attempt at Jim Crow type stuff. But its a very lame attempt to dissuade gay marriage. That's an extremely short planning window for any wedding.

Lincoln has a point that it is up to every government official to act "constitutionally," and there may very well be things that come up in one's day-to-day job where the SCOTUS has not issued any relevant opinions and things are ambiguous. It would then be that person's duty to determine the meaning of the Constitution as best he can and act accordingly. If the other parties involved disagree, they can take it to the courts, all the way up to SCOTUS if necessary, to decide. Once the SCOTUS has ruled on a topic, however, that *is* the end - until there's another countermanding opinion (e.g. Plessy and then Brown) OR a Constitutional amendment.

Lincoln's "every official for himself" doctrine worked out nicely for him in the prosecution of the Civil War, but that neither makes it right nor useful in today's political structure. Might does not make right - and neither does charisma.

That's the hypocritical nature of the south. They are total patriots...but many have an affinity to the flag of America's worst enemy in our history. They say they are Americans...but many hate the US government. When they are finally pinned down, they say it comes down to the Constitution and following the lead of the founding fathers...but then they do their best to subvert it when they disagree with policy (which is often).

Of course there is one more recourse - to bring another suit to the courts to give them a chance to reconsider. Naturally, something would have had to change for the courts to grant cert - the national political/moral mood, some subtlety that makes your new case slightly different from the old one, etc. If you just keep bringing the same suit and expecting different results...

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

[burd]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

They do, 5mn. It's called stare decisis, and it's been very effective.

[FreshFish]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Of course there is one more recourse - to bring another suit to the courts to give them a chance to reconsider. Naturally, something would have had to change for the courts to grant cert - the national political/moral mood, some subtlety that makes your new case slightly different from the old one, etc. If you just keep bringing the same suit and expecting different results...

Well, most people seem to think that the decision in Kelo v New London was ghastly: the state can take property away from one private citizen through eminent domain and give it to another private citizen who can then develop it for profit? How can that possibly be Constitutional, it is offensive, and it opens up a window to such potential corruption it is actually repulsive. I think in retrospect if the Court were allowed to call for a mulligan, Kelo would be # 1 on their list for a re-do. Left-wing should hate it, right-wing hates it.

The reaction against that decision was strong and widespread, something like 35 states passed laws saying no way we will allow Kelo-type practices to occur here.

By the way, the land that was seized by New London for "development" still sits vacant and idle, more than ten years later.

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

They do, 5mn. It's called stare decisis, and it's been very effective.

Then why don't Jim Crow laws still stand?

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Well, most people seem to think that the decision in Kelo v New London was ghastly: the state can take property away from one private citizen through eminent domain and give it to another private citizen who can then develop it for profit? How can that possibly be Constitutional, it is offensive, and it opens up a window to such potential corruption it is actually repulsive. I think in retrospect if the Court were allowed to call for a mulligan, Kelo would be # 1 on their list for a re-do. Left-wing should hate it, right-wing hates it.

The reaction against that decision was strong and widespread, something like 35 states passed laws saying no way we will allow Kelo-type practices to occur here.

By the way, the land that was seized by New London for "development" still sits vacant and idle, more than ten years later.

All of this is correct. I don't know anybody who thinks Kelo was either good law or even a good thing. Who could other than shady developers and investors? This is unique in that it was a 5-4 in which the 4 conservative justices got it right.

Presumably the Court could grant cert to related cases and gradually erode Kelo. This has been what's happened with Roe. The Court does get it wrong sometimes (Dred Scott, Plessy, Lochner) and there are mechanisms for amending (the first two) or walking it back (the latter). There seems to be a shakeout period after a terrible decision when the opposition figures out which approach is needed. For example, post Citizens United and McCutcheon it seems like an amendment will be required to stop the buying of elections.

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Then why don't Jim Crow laws still stand?

The 24th Amendment.

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

The 24th Amendment.

What do poll taxes have to do with separate but equal?

[unofan]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

That's why the SCOTUS needs to have a robust rejection process and find ways (or create them) to discourage any cases that are trying to overturn previous ones. I know that's not easy...but it must be attempted.

You mean like how they grant less than 1% of all writs for cert in a given year?

[Kepler]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

What do poll taxes have to do with separate but equal?

Poll taxes were a Jim Crow mechanism for preventing blacks from voting (c.f. "voter id " laws).

[FlagDUDE08]

Re: The Power of the SCOTUS Part VII - The Bedrock of the Republic!

Poll taxes were a Jim Crow mechanism for preventing blacks from voting (c.f. "voter id " laws).

Voter IDs don't prevent blacks from voting; what they do is put the election into the hands of hackers. You know the state will never approve of a sight-check of ID, because it isn't reliable enough.

Jim Crow had much more to do with separate facilities than charging a poll tax or having a literacy test.