[tssva]

The Supreme Court’s job isn’t to enact precedents that are in the interest of a successful USA. Their job is to make rulings regarding whether laws are constitutional and interpreting what laws mean when there is a question regarding how a law should be interpreted.

Neither the constitution or enacted laws are always in the best interest of the USA. If that is the case it isn’t the job of the Supreme Court to change them. That is the job of the people either directly or through their elected representatives.

[feoren]

> If that is the case it isn’t the job of the Supreme Court to change them.

The Supreme Court changes laws all the time. Where is the line between "interpreting what laws mean" and "deciding what laws mean", i.e. changing law and making new law? The Supreme Court has been in the business of changing and making new law for a long time; this sitting court is just the worst example of it.

[rayiner]

Finding new constitutional rules in “emanations from penumbras” seems extremely over that line…

[dctoedt]

> Finding new constitutional rules in “emanations from penumbras” seems extremely over that line

There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.

Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.

For non-lawyer readers, the "emanations" quote is from Griswold v. Connecticut, recognizing a constitutionally-based privacy right to use contraception. The complete quote is:

<quote>

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.

The right of association contained in the penumbra of the First Amendment is one, as we have seen.

The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.

The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'

The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.

The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'

</quote>

https://scholar.google.com/scholar_case?case=122769221450000... at 484 (cleaned up, extra paragraphing added).

[rayiner]

> There's a difference between "finding new constitutional rules," on the one hand, versus recognizing the logical implications of existing rules, on the other.

A sweeping right to kill fetuses is not logically implied from a right to be secure against warrantless searches. Many legal systems have the latter protection, but the US is an aberration in interpreting it to create some right to bodily autonomy.

> Mocking "emanations from penumbras" seems to hint at hostility to the Ninth Amendment's explicit rule that not every right and liberty must be explicitly spelled out in the Constitution.

The Ninth Amendment is just a savings clause. It cannot support conjuring new rights into existence by spring boarding off enumerated ones. Put differently, the bill of rights isn’t a set of legal principles which can be invoked as the building blocks to divine previously non-existent rights to override democracy.

The quoted portion of Griswold is unpersuasive in the extreme. I’d call up and yell at any associate that handed me anything like that. People would be up in arms if the Court used similarly vacuous reasoning to, for example, divine a “right” that was economic or regulatory in nature.

[fzeroracer]

But increasingly that's what the supreme court has been doing. They are vastly overstepping their authority in multiple regards. More recent examples include their stance on the ability of congress to delegate authority to various agencies (See: the EPA restrictions on carbon emissions). It's very easily for the court to subvert the authority of other branches by forcing them to 'redelegate' or re-litigate previously authorized agencies knowing full well that congress has been in deadlock for partisan reasons.

[anon291]

> that congress has been in deadlock for partisan reasons.

If Congress is in deadlock, that means that Americans cannot agree on the rules. In that case, yes... no rules ought to be made, because it's not going to represent American's interests writ large.

You are actually arguing that rules should be made up by unelected bureaucrats while admitting that the representatives substantially disagree on those rules and would not be able to legislate them themselves.

That means you are asking bureaucrats to go against the collective will of democratically elected representatives.

[fzeroracer]

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.

[ryandrake]

Problem is: At some point, someone has to make rules. The world changes, technology changes, new problems emerge that cannot magically solve themselves. Congress has been nonfunctional for my entire adult life. Consequently, with a few bipartisan exceptions, Federal law is stuck in 1993. Should it be stuck in 1993 forever? Think about it for a minute--should Congress simply stop doing anything from now on because we are perpetually split exactly 50-50 on every possible issue?

[fzeroracer]

This is why, historically, Congress delegates duties to different agencies and empowers them with authority. Both so that experts in their respective fields can do their job, and so that they can continue to make decisions in the wake of congress being nonfunctional.

So what happens when the Supreme Court steps in and says that delegated authority is no longer valid? The answer is that we become more nonfunctional and the intention is clear, because the court has partisan objectives.

[anon291]

> So what happens when the Supreme Court steps in and says that delegated authority is no longer valid? The answer is that we become more nonfunctional and the intention is clear, because the court has partisan objectives.

Given that the overwhelming majority of government workers are themselves partisan in one direction (DC is by far majority democrat, and government workers the same), one can easily argue the opposite: that allowing bureaucratic rule making is itself partisan.

[twoodfin]

“Congress can’t bring themselves to exercise their powers under the Constitution, so the Supreme Court should allow the President to exercise those powers instead” is a pretty scary argument.

[tssva]

The overstepping of authority argument is brought up by both sides depending on whether the court is deciding how they like or not. It isn’t even a recent phenomenon.

[rayiner]

What exactly do you think the supreme court’s job even is? You seem to have it exactly backwards. The framers spent enormous amounts of time and ink creating this system of separation of powers. Obviously it’s the job of the Supreme Court to police that. Much more so than finding new “rights” in emanations from penumbras.

[SauciestGNU]

Does the Supreme Court have the power to review congressional acts? Tell me where the Constitution enumerates that power for the Court.

[rootusrootus]

If the Supreme Court continues to get ever more partisan, I wonder if there will ever be a challenge to Marbury v. Madison. Certainly Congress has the power to strip jurisdiction from the court for anything that isn't covered by Article III. They may not have the will, though, given the deep partisan divide and evenly split party representation.

[dctoedt]

> I wonder if there will ever be a challenge to Marbury v. Madison.

An excellent question. Marbury isn't itself so much a problem as how courts — and the All-Writs Act — have implemented the basic principle. But people have gone along with expansive judicial review for two centuries now, so it's pretty much locked in as "how things are done."

Congress could still limit the reach of Marbury without a constitutional amendment, I think: Under the Exceptions and Regulations Clause, Congress could pass a law saying, for example, some or all of the following:

1. Only SCOTUS has the power to declare an act of Congress (and/or a federal regulation) unconstitutional; a lower court's declaration of unconstitutionality is simply an advisory opinion that has the effect of putting the case in question on hold. (The latter part would need more thought as to the operational details.)

2. A SCOTUS declaration of unconstitutionality has no effect unless agreed to by at least a 7-2 vote.

3. A SCOTUS declaration of unconstitutionality can be overridden by, say, a 3/5 vote of each of the House and Senate, subject to the usual rules about presidential vetoes and pocket vetoes.

Is Congress likely to do any of the foregoing? Probably not — but there might be at least some bipartisan support for cautiously shifting more power back to the elected political branches.

[rayiner]

I’m not sure Congress can regulate the Supreme Court’s voting rules, but I agree with your first point. We should’ve done that during the Warren court and stripped the Court of jurisdiction to challenge law on social and moral issues.

[dctoedt]

> Certainly Congress has the power to strip jurisdiction from the court for anything that isn't covered by Article III.

You don't need the "for anything ...." part of your sentence: The Exceptions and Regulations Clause is part of Article III and explicitly gives Congress the power to limit the Supreme Court's appellate jurisdiction in pretty much all (federal) cases:

<quote>

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. [That is, the Supreme Court is the trial court; in those cases, SCOTUS practice is to appoint a "special master" — typically, a former SCOTUS clerk — to hear the case and submit findings of fact and conclusions of law for the Court's consideration.]

In all the other Cases before mentioned [i.e., all cases where federal courts have any jurisdiction at all], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

</quote>

(Emphasis and extra paragraphing added.)

Moreover, because all lower (federal) courts are creatures of Congress from the get-go, there's no reason to think Congress can't limit the jurisdiction of those courts. Congress has repeatedly done this in the past by creating specialty courts, e.g., the Court of Federal Claims and the former Court of Customs and Patent Appeals (merged into the Federal Circuit in 1982).

[rayiner]

The constitution sets forth the structure of government with great specificity in a legal document. It’s quite reasonable to conclude that the Supreme Court, which is expressly conferred the “judicial power,” can decide compliance with the terms of that legal document. It’s not enumerated but it’s within the scope of the architecture of the constitution. Not everything needs to be “enumerated.” What is an “unreasonable search or seizure,” what is “cruel and unusual punishment?” The Supreme Court can decide that.

That’s completely different from “emanations from penumbras”—which is just pulling stuff out of your butt. Nothing in the Constitution makes the Supreme Court an Iran-style Guardian Council, the final arbiter on social and moral issues.

It’s no different than any other written legal document. I have a lease agreement with Toyota. That document can be interpreted—it doesn’t need to expressly enumerate everything. But that doesn’t mean you can read it to govern say how I raise my children. Just because everything doesn’t need to be enumerated doesn’t mean that some things aren’t outside the scope of the document.

[SauciestGNU]

I think it's farcical that this Court will hold the other branches to the strictly enumerated powers granted by the Constitution and yet restrains itself in no similar manner. "Emanations and penumbras" are just a mid-century aristocratic articulation of the idea that if you exercise multiple protected rights simultaneously, it follows that the sum of that conduct would also be constitutionally protected. People may disagree with the verbiage, or the outcome, but it is in fact quite easy to understand.

[rayiner]

The Court isn’t holding Congress to “strictly enumerated powers.” The constitution doesn’t say anything about the federal government being able to enact environmental legislation, but the Supreme Court has widely interpreted the Commerce Clause to allow it.

The non-delegation cases are about whether the elaborate and explicit separation of powers in the Constitution even means anything at all. The notion that you can have executive agencies making “regulations” with the force of law, and adjudicating cases through administrative judges, is already inconsistent with the idea of having three separate branches of government with clearly differentiated powers. The only question is whether that constitutional separation is mostly meaningless, or completely meaningless.

And the “emanations and penumbras” has nothing to do with “multiple protected rights.” If you are carrying a gun while protesting, that’s covered by the second and first amendments and you don’t need anything on top of that. “Emanations and penumbras” is a way to pull “rights” out of your ass that aren’t in the document. It’s classic mid-20th century white guy pontificating.

[hollerith]

Isn't it implied by the fact that the Constitution provides mechanisms to amend the Constitution? Why even have these mechanisms if an ordinary law couldn't be struck down on the grounds that the law is unconstitutional?

[insane_dreamer]

> it isn’t the job of the Supreme Court to change them

by determining whether a law is constitutional or not, they are indeed changing laws