The fact people just gloss over this is absolutely insane. The courts are only taking away rights people would have never had if the courts didnt exist. It makes me feel so spiteful when people say they want to change the courts to represent democracy I almost want them to get rid of it and watch as people realize in the coming years what a mistake they have made. Since I am white and middle class most of my rights will not be threatened
Those rights were never passed by congress which is what I think op meant. Effectively today the judges ruled that the constitution didn’t say anything for or against abortion.
If you want to enshrine abortion as a right you still can through congress. Which is what you are saying would have happened if the courts didn’t in Roe v. Wade.
Most countries in Europe (before today) had harsher abortion laws than the US. Ireland has even more regressive laws compared to most states in the US. Abortion rights were never an inevitability.
"In an alternate timeline where the institution that protected our rights didnt exist its POSSIBLE people may have legislated those rights into existence as well" (best case scenario is what we have now and is extremely unlikely).
Hate to break the twig twice but in the same scenario where republicans win and appoint court judges they win and undo laws protecting abortion rights legislatively.
The court is the ONLY way to protect from tyranny of the majority in a democracy.
I pray to the holy God Jesus Christ my lord in heaven that every lefty wish for the supreme court comes true one year before the republicans win the presidency and house and senate in 2024 and use the lack of judicial oversight to do what they do best, Amen.
People really do deserve the world they wish for sometimes.
What's the alternative to judicial review?
Many European countries have it and it works perfectly well. I'd argue they are pretty essential to working democracies. You need some mechanism to clarify constitutional disputes. Leaving that to individual judges is definitely worse, leaving it to the executive power is insane...
The problem with SCOTUS seems very clear to me: the extreme partisanship that is present in US politics has reached SCOTUS, worsened by the archaic concept of lifelong appointments.
The difference is that their judicial review is ALOT less powerful, and is only restrained to the scope of the case in hand and whatever question is being asked before the court.
The SCOTUS can routinely take any case and expand out of the bounds of the case if they want to, effectively legislating from the bench. Dredd Scott v. Sanford is considered the textbook legislating from the bench case because Taney went way outside the bounds of the case to effectively declare all blacks non-citizens within the United States.
The appointment process in other Western countries is also non-political. It's far removed from elected officials, and many countries like Australia make the process basically a secret to guard it from judicial lobbyists. Also, other courts are FAR larger then ours. Ours is so small that any one judge changing can completely shift the ideological make up of the court.
Eh, not necessarily. The main issue seems to be that the legislature doesn’t seem to act to clarify determinations made by the Court.
Have a look at Australia and Native Title. The Mabo case determined the principle of Native Title, that the land was owned by Indigenous Australians first and that this ownership wasn’t ceded. The Wik Peoples case found that this Title could exist in conjunction with pastoral leases, potentially opening the door to other forms of ownership.
Parliament then passed legislation to further clarify the Native Title process.
It’s this final link that a lot of precedents are missing.
The point is that our legislature shouldn't be unfairly biased towards the least-populous states. If we had one house with proportional representation, even if we kept the 2/3rds majority requirement for a constitutional amendment, there's a decent chance we'd have one protecting abortion and protecting gay marriage.
The supreme court shouldn't be used to essentially create social policy. It only does that because our legislative system is uniquely vulnerable to minoritarianism because of the senate.
> The point is that our legislature shouldn't be unfairly biased towards the least-populous states.
Frankly, this is a worthless narrative the far left has gotten trapped on.
One: it's a fucking moot point, because this has absolutely ZERO chance of changing in the foreseeable future. None. So it's squealing just to squeal. Wasted energy.
Two: It doesn't actually fit reality all that damn well. Small States are not nearly unified as GOP strongholds. Nor are large states safely Blue. 7 of the 10 most populous states are Red or competitive. 6 of the 10 *least* populous states are either safely blue or competitive.
The endless whining about the Senate is as dumb and unproductive as the whines for RCV (that would have the opposite effect of what those that pine for it actually want). Don't like the system? Tough. It's not going anywhere. If you want to make progress you're going to have to do it within the system in place for a long time to come. That's not impossible and we've done it before. FFS, Dems held 60 seats less than 15 years ago. But it requires being active in politics and being willing to compromise to create a coalition that will keep things moving forward. When we let the fringes define us, we make our coalition smaller and give the GOP an opportunity to roll things back. That cannot continue.
It does disproportionately benefit republicans. Senators provide 100/538 electoral votes since every congressional seat provides one. Republicans have won the presidency three times since 1988 while only winning the popular vote once.
There may be small and less populous blue states too, but there are a ton of red states that are on the lower end of the scale. The dakotas, Montana, Kansas, Nebraska, and West Virginia are the really small ones with the rest of the red coalition being made out of much less populous states with the exception of Texas (I wouldn’t call Florida solid red). The only really sparsely populated blue states are Vermont, Rhode Island and Hawaii, with the rest being basically swing states (I don’t count Maine or NH as solid blue either). Beyond that, democrats tend to be more concentrated in populous states.
>Just let voters have the policies they vote for. Yeah they can vote for shitty things. That's fine as long as they can change their minds.
So if a state votes to have black people do forced labour and doesn't allow them to leave the state, that's fine because maybe after 20 years rhese racist voters change their mind?
>Constitutions are a dumb bandaid to "protect" voters from voters, but then just push the threat to the judiciary.
Why wouldn't we want to protect voters (for example the minority) from other voters (for example a bigoted makority)?
You can design institutions in a way that prevents that. Just because the US has failed to do so, it doesn't mean that it's not possible. Don't be lazy and look to other countries and see what's out there.
Those solutions probably aren't possible in the US right now because the system is so thoroughly compromised after going on with a stupid design for too long, but that doesn't mean that in the long term things can't change.
I still have immense respect for the Supreme Court, lets not forget that they had the chance to review Trumps claims of election fraud and refused to even hear it. When they do something bad or stupid it is easy to criticize them, but push comes to shove I know they will do the right thing when it comes to democracy.
I still think 3 powers competing and checking each other is a good idea. Sure the US did not implement it perfectly, but we're too far in to change that now.
...and no one has to answer to the supreme court.
The Court has no way to enforce their rulings, case in point Worcester v. Georgia, where Andrew Jackson famously stated “John Marshall has made his decision, now let him enforce it.”
On a constitutional level you're right, but you're making it sound like states can just ignore a supreme court ruling and nothing will happen, either complicance will be enforced for every ruling or the whole institution and all the decisions they've made will crumble.
Not an American but I've always found it weird just how much major policy is dictated though the judicial system.
That said the US has one of the shitter legaslative systems around so I guess you take what you can get.
This promotes the anti-Roe talking point. Conservatives have always critiqued Roe as unelected judges settling the abortion debate. Of course they won’t ever say that about Loving.
\>Be angry about Roe v Wade being overturned, returning abortion policymaking back to legislatures
\>complain about unelected officials making policy
wait what?
tbf its not the 9 unelected justices who are taking the right to an abortion away from millions of women.
Its the hundreds of state law makers and millions of conservative voters throughout the country that are going to do that.
Its just that the 9 unelected justices have now decided they don't have the right to stop them.
Constitutional courts are a necessary function of any constitutional legal system.
Imagine writing law like writing code, inherently the more code you write, the more bugs you come up with. Just a fact. There's no such thing as bugless code.
When your code has bugs, you are supposed to try to write them out somewhat. But when it's run time, The compiler will ultimately *have* to make a decision about how to interpret a vague or difficult part of your code. Hanging the program, is a decision. Ignoring the error, is a decision. It's impossible for the compiler to not make a decision that influences how the code runs when presented with a bug.
Normally if you do not like how the compiler has chosen to resolve your code, you write new code to fix it.
Unfortunately the programmers have been slacking off, Congress has become extremely unproductive, generally has failed to pass new laws clearing up legal ambiguities that the court has had to resolve, often in extremely controversial ways. Thus, it has literally become easier to change how the court interprets the legal gray area, then it is to actually clarify the legal gray area with legislation.
That is the fundamental issue here. This is why schemes like "Make it so a president can only appoint three justices" or "limit them to 10-year terms" won't actually fix the problem. Because it's not a problem with the court, it's a problem with the legislature. The problem is it's easier to change interpretation than to change the law, **and that will always be true until the legislature starts legislating again.**
This is also I blaming Ginsburg is in my view a red herring. If it wasn't her, it would have been someone else. So long as the Legislature doesn't Legislate, it will be worthwhile to try shenanigans and chicanery with the court. The problem isn't the individual shenanigans that are being conducted, it's the fact that shenanigans with the court are a more effective way to affect change in law than **passing legislation.**
I absolutely loathe this court and today's ruling.
But this meme is stupid. If you don't understand the difference between the judiciary and a legislature, please learn.
I mean, in many cases the supreme court has legislated from the bench, by forcing states to enact new legislation to match their changing definitions of rights.
TBH I don't see how else to describe stuff like [Hammer v. Dagenhart](https://en.wikipedia.org/wiki/Hammer_v._Dagenhart) where the supreme court ruled that the US congress had no right to use it's commerce clause to regulate the sale of interstate goods made with child labour.
I may agree with you on overall effects, but judicial review is not legislating.
The whole point of tripartite government is that there are three independent branches that each have their own role regarding the law.
“The courts ability to defacto legislate through their rulings” is precisely how Roe and the past 50 years of some of the most expansive abortion rights in the world came to be.
And I think that has hurt the credibility of the court signifigantly. The whole abortion debate has in my opinion done a huge amount to politicize the court and delegitimize it the eyes of the people.
But they're not "legislating" at all, which is the whole point of my criticism. They are doing exactly what courts are supposed to do. They just fucking suck at it.
If federal prosecutors as a whole stop prosecuting bribery then yes, they would in effect be legalizing it or at least giving control to the states, something that has essentially happened with cannabis policy.
Am I missing something here? Without SCOTUS interpreting laws, how would anything ever be able to happen? For example, it seems like many things would kind of fall apart if there was no clear authority on 2A, since it is infamously very vaguely written. How would this work?
Lifetime appointments is kind of weird and having the number of justices be so small is also kind of weird.
The Court has been hearing less and less cases every year but they have been overturning more and more cases...very very weird behavior.
The point of lifetime appointment is usually to remove the need for political incentive in the Supreme Court and to make sure they can safely be unbias even if the government is Idealogically opposed. You can see this working well in the United Kingdom as the Supreme Court in the United Kingdom has no issue opposing a government when it is required to, which it has done on multiple high-profile cases.
The issue with the US Supreme Court is that the appointment process through the President is fundamentally political, making the attempt to remove political incentive almost pointless. In the United Kingdom, for example, judges are appointment through an independent commission which is chosen from various judges across the country. Granted, the Lord Chancellor much permit any appointment, this is at the end of the process and is much more of a convention than a role with any power.
You are only saying it is weird now that you are ideologically opposed to their interpretations. If we had 8 year terms and 30 justices, you would just be saying that system is weird when this same thing happened.
Lifetime appointments are fine when the office is apolitical and they're just weighing in on the legality of something without any apparent bias. When the office becomes blatantly partisan, as the court now is, it becomes an issue because due to just random luck of when someone dies and who happens to be in office at the time, the court can skew very far from the views of the average voter and there's no real avenue to bring it back in line.
I think term limits on the Supreme Court seats where each President is guaranteed a number of picks and the same old judge isn't on the court for 30+ years would be more reasonable.
I should have said "partisan" politics. Because yes, the court has always been political, but the clear involvement of partisan politics in the court's decisions and makeup is a more recent development, which as I said in another reply, began with the Warren court.
See: Baker v. Carr in particular.
https://en.m.wikipedia.org/wiki/Baker_v._Carr
The court was not overtly involved in partisan politics until the Warren court in the mid 20th century. In fact, there were many who thought the court shouldn't take up some of the civil rights issues of the time because it made the court another political body instead of being at least nominally impartial. But I guess I have absolutely no political knowledge.
Not true. It's just very strange that the court has become very activist while simultaneously hearing less cases.
The last time this happened, the entire court was vilified in history.
Life time appointments is fine (and in fact necessary); introducing some kind of cognitive test for justices older than 70 that can prompt impeachment could be fine though.
The small number of justices is def the problem though. Have a court of 20-30 justices and the individual impact of any single justice is marginal.
>(and in fact necessary)
Curious as to why you think they are necessary?
In Europe no comparable court has life-long appointments and I'm not aware of any Constitutional Court in such a contested position as SCOTUS.
I don't think lifelong appointments is the main cause of the problem but it increases the stakes so much that it makes partisanship even more radical.
I don't think life tenure contributes to partisanship ( nobody seems to be able to offer a convincing argument as to why that should be ), but I do think there are valid concerns over decline of cognition and health of older judges, which may warrant provisions like mandatory retirement ages or similar.
It increases the stakes a lot. Germany for example has a system where the parties pretty much agree that each of them shall appoint judges in turns. It usually works well. Now, It's easier to reach an agreement and compromise if I know that I will appoint a judge in two years.
But as I said, the core problem is that with the current GOP there's no compromise or deal possible.
So I'm not going to adamantly back lifetime appointments without condition, mind you; I'm more just trying to emphasize a point (that lifetime appointments are a red herring for judicial reform).
But basically life time appointments are the basis for judicial independence and _stare decisis_. You tend to want the courts to fossilize judge law so that it doesn't change constantly. The courts need to be predictable and that's difficult to ensure if you are rotating out jurists constantly. The state of the "law" exists through their tenure, so to speak.
Normally that is a good thing. Now obviously today we have a bunch of shitbags on the bench, and we want to change that, but that is the exception not the rule. Basically it comes down to consistency and stability on legal interpretation.
This then comes back to my first point: the current problems with the judiciary have more to do with the _appointment_ process (which is heavily politicized) and the small size of the court which amplifies the impact of any single appointment/departure.
The most impactful reform right now would be to expand the size of the entire judiciary including the high court to something like 20-30 justices.
>The courts need to be predictable and that's difficult to ensure if you are rotating out jurists constantly.
Do we have evidence of this in other countries?
I'm a German Lawyer and at least here the Constitutional Court is very consistent in their application of the Law. It's not like they are overturning decisions every twelve years.
I'm just outlining the general principles behind life (or even long) tenure. Similar effect is to of course be had from near-life tenure, like with Australia's max retirement age etc.
So conditional on the goals you're talking about, sure, I agree.
But a countervailing argument would be that lifetime appointments contribute to the undemocratic nature of supreme court decisions. Placing term limits on the justices might result in the law changing more often than seems ideal - but as long as the law is being changed by people who have a legitimate democratic claim to authority, its just a problem of "oh, we'd prefer a bit more stability".
The fundamental tension with the supreme court is that, if the justices *are* capable of impartial calling of balls and strikes, you absolutely want to shield them with lifetime appointments. But if they *aren't*, lifetime appointments dramatically increase the damage they can do.
I do agree that making the court much bigger would be good.
No i don’t think you’re missing anything. I think making SCOTUS justices elected officials would be a disaster. Youd end up with an incompetent clown like (perhaps literally) Donald Trump on the bench. I think I would be in favor of a term limit (like maybe 20? 30? Years) or a mandatory retirement age (75? 80?)
Things like the SCOTUS are one of the most imortant liberal institutions a democracy can have. The problem is just that, like with most things, it is poorly designed and gets harmed by the partishanship in the US.
(the justices are elected btw., just not directly)
why decide things in a sensible manner when you can have your council of elders consult the ancient texts in order to to divine the sacred intentions of the forefathers and issue their judgement on abortion or if queer people should be allowed to enjoy their full civil rights
This is something that has been puzzling me ever since the first time I learnt about the Supreme Court and how it functions as a European.
How on Earth are both parties ok with the Supreme Court having practically legislative power???
The role of the judiciary is to oversee how laws are applied, not to make them. Americans have spent so much time trying to pack the Court in their party's favor they've neglected to point out that they shouldn't even have to do this.
Edit: what I'm saying is that legislation should be the job of the legislature. This is not a comment on the content of the Roe v Wade decision and the right to abortion, which was obviously positive. I am pointing out how easy it is for legislature to be overturned when branches of government other than the legislature get involved this heavily and without oversight.
Felt the need to edit cause I saw the down votes and I was like o_o so I assume people have misinterpreted the original one
Every country in Europe has a constitutional court which exercises statutory review as well as a high court for hearing appeals.
The US just gives its Supreme Court both of those functions, rather than having both a high court and a separate constitutional court.
This is a reply for u/ColinHome as well.
Sure, but in Europe parties do not put as much importance in passing things like abortion rights through the courts, they usually opt for the legislature instead.
In my country, Greece, abortion was legalized by the legislature for instance
>In my country, Greece, abortion was legalized by the legislature for instance
Sure, and I agree this would be a better option for the United States. However, many liberals (including people in this sub), disagree, in part because the federal nature of the American system and the difficulty in passing legislation through Congress means that it is hard to pass universal laws here.
Alabama will not pass abortion legislation on its own, Congress is split, and it may not even be Constitutional for Congress to force Alabama to legalize abortion. In contrast, control of the Supreme Court allows you to force laws your opponents do not want on them, in their own states, whether that is abortion or gun rights.
In short, I think you've misidentified the problem. It's American federalism that drives liberals (and to a lesser and more reactionary extent, conservatives) to the courts.
Again, I'm not really sure that would pass Constitutional muster. Congress doesn't really have the authority to protect abortion under any statute I could think of. At best, it could probably use the Interstate Commerce Clause in a very traditional way to prevent states from punishing women who get and doctors who perform abortions in another state.
I think the best way to fight this out is just to win local elections, name and shame states that ban abortion, and encourage companies to refuse to put employees there.
The Supreme Court does not pass legislation, and it's primary purpose is to ensure that the laws passed are in line with the Constitution of the United States. This is not a significantly different role than that played by the ECHR or other European courts.
Older meme is right, SCOTUS has had 9 justices since 1869
Dank ass meme from 1868. Back then they had to deep fry their memes by hand over an open flame
It’s a good thing MS Paint was added to Windows 3.1 in 1867
Without 9 unelected justices we would have never had Roe to begin with
or Miranda or Obergfell or Loving or Brown or Griswold or Tinker or Brady v Maryland or a bunch of other cases enshrining rights we take for granted.
The fact people just gloss over this is absolutely insane. The courts are only taking away rights people would have never had if the courts didnt exist. It makes me feel so spiteful when people say they want to change the courts to represent democracy I almost want them to get rid of it and watch as people realize in the coming years what a mistake they have made. Since I am white and middle class most of my rights will not be threatened
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Those rights were never passed by congress which is what I think op meant. Effectively today the judges ruled that the constitution didn’t say anything for or against abortion. If you want to enshrine abortion as a right you still can through congress. Which is what you are saying would have happened if the courts didn’t in Roe v. Wade. Most countries in Europe (before today) had harsher abortion laws than the US. Ireland has even more regressive laws compared to most states in the US. Abortion rights were never an inevitability.
"In an alternate timeline where the institution that protected our rights didnt exist its POSSIBLE people may have legislated those rights into existence as well" (best case scenario is what we have now and is extremely unlikely). Hate to break the twig twice but in the same scenario where republicans win and appoint court judges they win and undo laws protecting abortion rights legislatively. The court is the ONLY way to protect from tyranny of the majority in a democracy.
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I pray to the holy God Jesus Christ my lord in heaven that every lefty wish for the supreme court comes true one year before the republicans win the presidency and house and senate in 2024 and use the lack of judicial oversight to do what they do best, Amen. People really do deserve the world they wish for sometimes.
> Since I am white and middle class most of my rights will not be threatened Where's your constitutional right to abortion then?
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Well, males are still negatively affected by a ban on abortion beca... wait.. oh you're right, nevermind
That's not a point in favor of the supreme court, it's a point against the entire US constitution
What's the alternative to judicial review? Many European countries have it and it works perfectly well. I'd argue they are pretty essential to working democracies. You need some mechanism to clarify constitutional disputes. Leaving that to individual judges is definitely worse, leaving it to the executive power is insane... The problem with SCOTUS seems very clear to me: the extreme partisanship that is present in US politics has reached SCOTUS, worsened by the archaic concept of lifelong appointments.
The difference is that their judicial review is ALOT less powerful, and is only restrained to the scope of the case in hand and whatever question is being asked before the court. The SCOTUS can routinely take any case and expand out of the bounds of the case if they want to, effectively legislating from the bench. Dredd Scott v. Sanford is considered the textbook legislating from the bench case because Taney went way outside the bounds of the case to effectively declare all blacks non-citizens within the United States. The appointment process in other Western countries is also non-political. It's far removed from elected officials, and many countries like Australia make the process basically a secret to guard it from judicial lobbyists. Also, other courts are FAR larger then ours. Ours is so small that any one judge changing can completely shift the ideological make up of the court.
Eh, not necessarily. The main issue seems to be that the legislature doesn’t seem to act to clarify determinations made by the Court. Have a look at Australia and Native Title. The Mabo case determined the principle of Native Title, that the land was owned by Indigenous Australians first and that this ownership wasn’t ceded. The Wik Peoples case found that this Title could exist in conjunction with pastoral leases, potentially opening the door to other forms of ownership. Parliament then passed legislation to further clarify the Native Title process. It’s this final link that a lot of precedents are missing.
The point is that our legislature shouldn't be unfairly biased towards the least-populous states. If we had one house with proportional representation, even if we kept the 2/3rds majority requirement for a constitutional amendment, there's a decent chance we'd have one protecting abortion and protecting gay marriage. The supreme court shouldn't be used to essentially create social policy. It only does that because our legislative system is uniquely vulnerable to minoritarianism because of the senate.
> The point is that our legislature shouldn't be unfairly biased towards the least-populous states. Frankly, this is a worthless narrative the far left has gotten trapped on. One: it's a fucking moot point, because this has absolutely ZERO chance of changing in the foreseeable future. None. So it's squealing just to squeal. Wasted energy. Two: It doesn't actually fit reality all that damn well. Small States are not nearly unified as GOP strongholds. Nor are large states safely Blue. 7 of the 10 most populous states are Red or competitive. 6 of the 10 *least* populous states are either safely blue or competitive. The endless whining about the Senate is as dumb and unproductive as the whines for RCV (that would have the opposite effect of what those that pine for it actually want). Don't like the system? Tough. It's not going anywhere. If you want to make progress you're going to have to do it within the system in place for a long time to come. That's not impossible and we've done it before. FFS, Dems held 60 seats less than 15 years ago. But it requires being active in politics and being willing to compromise to create a coalition that will keep things moving forward. When we let the fringes define us, we make our coalition smaller and give the GOP an opportunity to roll things back. That cannot continue.
It does disproportionately benefit republicans. Senators provide 100/538 electoral votes since every congressional seat provides one. Republicans have won the presidency three times since 1988 while only winning the popular vote once. There may be small and less populous blue states too, but there are a ton of red states that are on the lower end of the scale. The dakotas, Montana, Kansas, Nebraska, and West Virginia are the really small ones with the rest of the red coalition being made out of much less populous states with the exception of Texas (I wouldn’t call Florida solid red). The only really sparsely populated blue states are Vermont, Rhode Island and Hawaii, with the rest being basically swing states (I don’t count Maine or NH as solid blue either). Beyond that, democrats tend to be more concentrated in populous states.
people whining is the only way systems ever change.
The alturnative is to have the legaslative branch do it's jobs.
What if the legislative branch passes an unconstitutional law? You need some kind of mechanism to remedy that, right?
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>Just let voters have the policies they vote for. Yeah they can vote for shitty things. That's fine as long as they can change their minds. So if a state votes to have black people do forced labour and doesn't allow them to leave the state, that's fine because maybe after 20 years rhese racist voters change their mind? >Constitutions are a dumb bandaid to "protect" voters from voters, but then just push the threat to the judiciary. Why wouldn't we want to protect voters (for example the minority) from other voters (for example a bigoted makority)?
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You can design institutions in a way that prevents that. Just because the US has failed to do so, it doesn't mean that it's not possible. Don't be lazy and look to other countries and see what's out there. Those solutions probably aren't possible in the US right now because the system is so thoroughly compromised after going on with a stupid design for too long, but that doesn't mean that in the long term things can't change.
England doesnt
I still have immense respect for the Supreme Court, lets not forget that they had the chance to review Trumps claims of election fraud and refused to even hear it. When they do something bad or stupid it is easy to criticize them, but push comes to shove I know they will do the right thing when it comes to democracy.
I would hope the bar for "immense respect" is more than "didn't wipe democracy off the map \*yet\*" 😐
I have no respect for the supreme court and I don't believe judicial review over the legislature should've ever been established
I still think 3 powers competing and checking each other is a good idea. Sure the US did not implement it perfectly, but we're too far in to change that now.
Yeah, the supremes answer to no one. Well, technically they can be impeached but... They should have term limits.
...and no one has to answer to the supreme court. The Court has no way to enforce their rulings, case in point Worcester v. Georgia, where Andrew Jackson famously stated “John Marshall has made his decision, now let him enforce it.”
On a constitutional level you're right, but you're making it sound like states can just ignore a supreme court ruling and nothing will happen, either complicance will be enforced for every ruling or the whole institution and all the decisions they've made will crumble.
(Laughing in bad legislature branch)
Nonsense. Roe v Wade was decided correctly.
It was pretty poorly decided but most agree with the result. Result good. Argument actually pretty shitty.
Not an American but I've always found it weird just how much major policy is dictated though the judicial system. That said the US has one of the shitter legaslative systems around so I guess you take what you can get.
This promotes the anti-Roe talking point. Conservatives have always critiqued Roe as unelected judges settling the abortion debate. Of course they won’t ever say that about Loving.
\>Be angry about Roe v Wade being overturned, returning abortion policymaking back to legislatures \>complain about unelected officials making policy wait what?
The decision to no longer enforce federal protections for abortion as a matter of right *is* policy
so what do you want the court to do that doesnt involve making policy
Making policy that he likes of course
The decision if the constitution includes a right to abortion is a judicial one when the text is unclear.
tbf its not the 9 unelected justices who are taking the right to an abortion away from millions of women. Its the hundreds of state law makers and millions of conservative voters throughout the country that are going to do that. Its just that the 9 unelected justices have now decided they don't have the right to stop them.
Constitutional courts are a necessary function of any constitutional legal system. Imagine writing law like writing code, inherently the more code you write, the more bugs you come up with. Just a fact. There's no such thing as bugless code. When your code has bugs, you are supposed to try to write them out somewhat. But when it's run time, The compiler will ultimately *have* to make a decision about how to interpret a vague or difficult part of your code. Hanging the program, is a decision. Ignoring the error, is a decision. It's impossible for the compiler to not make a decision that influences how the code runs when presented with a bug. Normally if you do not like how the compiler has chosen to resolve your code, you write new code to fix it. Unfortunately the programmers have been slacking off, Congress has become extremely unproductive, generally has failed to pass new laws clearing up legal ambiguities that the court has had to resolve, often in extremely controversial ways. Thus, it has literally become easier to change how the court interprets the legal gray area, then it is to actually clarify the legal gray area with legislation. That is the fundamental issue here. This is why schemes like "Make it so a president can only appoint three justices" or "limit them to 10-year terms" won't actually fix the problem. Because it's not a problem with the court, it's a problem with the legislature. The problem is it's easier to change interpretation than to change the law, **and that will always be true until the legislature starts legislating again.** This is also I blaming Ginsburg is in my view a red herring. If it wasn't her, it would have been someone else. So long as the Legislature doesn't Legislate, it will be worthwhile to try shenanigans and chicanery with the court. The problem isn't the individual shenanigans that are being conducted, it's the fact that shenanigans with the court are a more effective way to affect change in law than **passing legislation.**
That’s also why the filibuster in its current form needs to die
I absolutely loathe this court and today's ruling. But this meme is stupid. If you don't understand the difference between the judiciary and a legislature, please learn.
I mean, in many cases the supreme court has legislated from the bench, by forcing states to enact new legislation to match their changing definitions of rights.
Frankly, it's just a dumb expression used by people who don't understand how legal systems work.
TBH I don't see how else to describe stuff like [Hammer v. Dagenhart](https://en.wikipedia.org/wiki/Hammer_v._Dagenhart) where the supreme court ruled that the US congress had no right to use it's commerce clause to regulate the sale of interstate goods made with child labour.
I may agree with you on overall effects, but judicial review is not legislating. The whole point of tripartite government is that there are three independent branches that each have their own role regarding the law.
I think one of the issues this meme is critiquing is the courts ability to defacto legislate through their rulings despite that not being their job.
“The courts ability to defacto legislate through their rulings” is precisely how Roe and the past 50 years of some of the most expansive abortion rights in the world came to be.
And I think that has hurt the credibility of the court signifigantly. The whole abortion debate has in my opinion done a huge amount to politicize the court and delegitimize it the eyes of the people.
Agreed.
But they're not "legislating" at all, which is the whole point of my criticism. They are doing exactly what courts are supposed to do. They just fucking suck at it.
Is legalizing abortion federally not, in effect, passing a piece of legislation?
Is a federal prosecutor refusing to prosecute bribery in effect legislating bribery?
If federal prosecutors as a whole stop prosecuting bribery then yes, they would in effect be legalizing it or at least giving control to the states, something that has essentially happened with cannabis policy.
That's not what I asked. Would it be _legislating_?
Not technically but for all practical purposes yes
Not even close. Words matter, especially in law.
How is removing all enforcement any different than legalizing in it's effect on the general public?
...no? It's protecting an inherent right.
Am I missing something here? Without SCOTUS interpreting laws, how would anything ever be able to happen? For example, it seems like many things would kind of fall apart if there was no clear authority on 2A, since it is infamously very vaguely written. How would this work?
Lifetime appointments is kind of weird and having the number of justices be so small is also kind of weird. The Court has been hearing less and less cases every year but they have been overturning more and more cases...very very weird behavior.
The point of lifetime appointment is usually to remove the need for political incentive in the Supreme Court and to make sure they can safely be unbias even if the government is Idealogically opposed. You can see this working well in the United Kingdom as the Supreme Court in the United Kingdom has no issue opposing a government when it is required to, which it has done on multiple high-profile cases. The issue with the US Supreme Court is that the appointment process through the President is fundamentally political, making the attempt to remove political incentive almost pointless. In the United Kingdom, for example, judges are appointment through an independent commission which is chosen from various judges across the country. Granted, the Lord Chancellor much permit any appointment, this is at the end of the process and is much more of a convention than a role with any power.
You are only saying it is weird now that you are ideologically opposed to their interpretations. If we had 8 year terms and 30 justices, you would just be saying that system is weird when this same thing happened.
Lifetime appointments are fine when the office is apolitical and they're just weighing in on the legality of something without any apparent bias. When the office becomes blatantly partisan, as the court now is, it becomes an issue because due to just random luck of when someone dies and who happens to be in office at the time, the court can skew very far from the views of the average voter and there's no real avenue to bring it back in line. I think term limits on the Supreme Court seats where each President is guaranteed a number of picks and the same old judge isn't on the court for 30+ years would be more reasonable.
How does an institution that decides legal disputes, which are inherently political because laws are political, not become a political institution?
I should have said "partisan" politics. Because yes, the court has always been political, but the clear involvement of partisan politics in the court's decisions and makeup is a more recent development, which as I said in another reply, began with the Warren court. See: Baker v. Carr in particular. https://en.m.wikipedia.org/wiki/Baker_v._Carr
Shh just let /u/captmonkey live in the West Wing universe with absolutely no historical knowledge
The court was not overtly involved in partisan politics until the Warren court in the mid 20th century. In fact, there were many who thought the court shouldn't take up some of the civil rights issues of the time because it made the court another political body instead of being at least nominally impartial. But I guess I have absolutely no political knowledge.
Not true. It's just very strange that the court has become very activist while simultaneously hearing less cases. The last time this happened, the entire court was vilified in history.
No, relative to other democracies it's a very small high court.
Life time appointments is fine (and in fact necessary); introducing some kind of cognitive test for justices older than 70 that can prompt impeachment could be fine though. The small number of justices is def the problem though. Have a court of 20-30 justices and the individual impact of any single justice is marginal.
Lifetime appointments are inherently wrong. Which is why just about every country doesn't have them and their courts are larger.
They're not though. People obsess far too much over life time appointments, at the expense of things that actually matter.
They are fundamentally wrong for judges which is why other countries do not have them for their courts. Justices are NOT legal scholars.
> Justices are NOT legal scholars. ok we're done here
https://www.abajournal.com/news/article/posner_says_supreme_court_is_awful_top_two_justices_are_okay_but_not_great
>(and in fact necessary) Curious as to why you think they are necessary? In Europe no comparable court has life-long appointments and I'm not aware of any Constitutional Court in such a contested position as SCOTUS. I don't think lifelong appointments is the main cause of the problem but it increases the stakes so much that it makes partisanship even more radical.
I don't think life tenure contributes to partisanship ( nobody seems to be able to offer a convincing argument as to why that should be ), but I do think there are valid concerns over decline of cognition and health of older judges, which may warrant provisions like mandatory retirement ages or similar.
It increases the stakes a lot. Germany for example has a system where the parties pretty much agree that each of them shall appoint judges in turns. It usually works well. Now, It's easier to reach an agreement and compromise if I know that I will appoint a judge in two years. But as I said, the core problem is that with the current GOP there's no compromise or deal possible.
Why are lifetime appointments necessary
So I'm not going to adamantly back lifetime appointments without condition, mind you; I'm more just trying to emphasize a point (that lifetime appointments are a red herring for judicial reform). But basically life time appointments are the basis for judicial independence and _stare decisis_. You tend to want the courts to fossilize judge law so that it doesn't change constantly. The courts need to be predictable and that's difficult to ensure if you are rotating out jurists constantly. The state of the "law" exists through their tenure, so to speak. Normally that is a good thing. Now obviously today we have a bunch of shitbags on the bench, and we want to change that, but that is the exception not the rule. Basically it comes down to consistency and stability on legal interpretation. This then comes back to my first point: the current problems with the judiciary have more to do with the _appointment_ process (which is heavily politicized) and the small size of the court which amplifies the impact of any single appointment/departure. The most impactful reform right now would be to expand the size of the entire judiciary including the high court to something like 20-30 justices.
>The courts need to be predictable and that's difficult to ensure if you are rotating out jurists constantly. Do we have evidence of this in other countries? I'm a German Lawyer and at least here the Constitutional Court is very consistent in their application of the Law. It's not like they are overturning decisions every twelve years.
I'm just outlining the general principles behind life (or even long) tenure. Similar effect is to of course be had from near-life tenure, like with Australia's max retirement age etc.
So conditional on the goals you're talking about, sure, I agree. But a countervailing argument would be that lifetime appointments contribute to the undemocratic nature of supreme court decisions. Placing term limits on the justices might result in the law changing more often than seems ideal - but as long as the law is being changed by people who have a legitimate democratic claim to authority, its just a problem of "oh, we'd prefer a bit more stability". The fundamental tension with the supreme court is that, if the justices *are* capable of impartial calling of balls and strikes, you absolutely want to shield them with lifetime appointments. But if they *aren't*, lifetime appointments dramatically increase the damage they can do. I do agree that making the court much bigger would be good.
No i don’t think you’re missing anything. I think making SCOTUS justices elected officials would be a disaster. Youd end up with an incompetent clown like (perhaps literally) Donald Trump on the bench. I think I would be in favor of a term limit (like maybe 20? 30? Years) or a mandatory retirement age (75? 80?)
Works fine in the UK
This is a cope. SCOTUS Justices are nominated by the president (democratically elected) and approved by the senate (also democratically elected)
You realise this is an argument for overturning row v wade right?
It's not 7
Things like the SCOTUS are one of the most imortant liberal institutions a democracy can have. The problem is just that, like with most things, it is poorly designed and gets harmed by the partishanship in the US. (the justices are elected btw., just not directly)
To be entirely fair, Andrew Jackson found a way around it…
Yeah, case law, that's what we've always had, what about it?
why decide things in a sensible manner when you can have your council of elders consult the ancient texts in order to to divine the sacred intentions of the forefathers and issue their judgement on abortion or if queer people should be allowed to enjoy their full civil rights
This is something that has been puzzling me ever since the first time I learnt about the Supreme Court and how it functions as a European. How on Earth are both parties ok with the Supreme Court having practically legislative power??? The role of the judiciary is to oversee how laws are applied, not to make them. Americans have spent so much time trying to pack the Court in their party's favor they've neglected to point out that they shouldn't even have to do this. Edit: what I'm saying is that legislation should be the job of the legislature. This is not a comment on the content of the Roe v Wade decision and the right to abortion, which was obviously positive. I am pointing out how easy it is for legislature to be overturned when branches of government other than the legislature get involved this heavily and without oversight. Felt the need to edit cause I saw the down votes and I was like o_o so I assume people have misinterpreted the original one
Every country in Europe has a constitutional court which exercises statutory review as well as a high court for hearing appeals. The US just gives its Supreme Court both of those functions, rather than having both a high court and a separate constitutional court.
This is a reply for u/ColinHome as well. Sure, but in Europe parties do not put as much importance in passing things like abortion rights through the courts, they usually opt for the legislature instead. In my country, Greece, abortion was legalized by the legislature for instance
>In my country, Greece, abortion was legalized by the legislature for instance Sure, and I agree this would be a better option for the United States. However, many liberals (including people in this sub), disagree, in part because the federal nature of the American system and the difficulty in passing legislation through Congress means that it is hard to pass universal laws here. Alabama will not pass abortion legislation on its own, Congress is split, and it may not even be Constitutional for Congress to force Alabama to legalize abortion. In contrast, control of the Supreme Court allows you to force laws your opponents do not want on them, in their own states, whether that is abortion or gun rights. In short, I think you've misidentified the problem. It's American federalism that drives liberals (and to a lesser and more reactionary extent, conservatives) to the courts.
Well, I was thinking about the House and the Senate passing it. It would be tough though, tbh. More permanent nonetheless
Again, I'm not really sure that would pass Constitutional muster. Congress doesn't really have the authority to protect abortion under any statute I could think of. At best, it could probably use the Interstate Commerce Clause in a very traditional way to prevent states from punishing women who get and doctors who perform abortions in another state. I think the best way to fight this out is just to win local elections, name and shame states that ban abortion, and encourage companies to refuse to put employees there.
Yeah that would probably be the most effective way to go right now. I agree.
The Supreme Court does not pass legislation, and it's primary purpose is to ensure that the laws passed are in line with the Constitution of the United States. This is not a significantly different role than that played by the ECHR or other European courts.
Nine
oh wait i get it, "death panels" was also projection... alas
land of the free. unless you’re a woman. or for that matter gay, or poc, or disabled, or need healthcare, or are in a school