From another forum:

JimHackerMP wrote:With that in mind, Dr Fate, should we begin a thread on the merits and demerits of the Supreme Court?

Not really sure. To me, it is this:

1. We have three branches of government.

2. The one branch that was envisioned as doing most of the "work" of legislating does little of it.

3. The power of the executive branch (and by extension, the massive bureaucracy, which cranks out tens of thousands of pages of regulations a year) has become too extensive. The President rarely consults or lobbies Congress. Instead, he simply issues executive orders or new regulations via agencies (EPA, ICE, etc.)

4. The power of the USSC is similarly unchecked. Whether one agrees with the decisions on Kelo, Roe, Citizen's United, homosexual marriage, and others, they are the law of the land unless the Constitution is amended or a new Court strikes down old decisions.

5. There is a growing divide in this country. It is not based on wealth. It is based on principle. Is the Federal government supposed to be intervening in how we manage our private property, redistributing tax money (to corporations), etc.? There are two fundamentally opposed ideologies: 1) the Federal government should regulate anything of importance and make sure everyone has their "fair share;" 2) The Federal government is too big and too intrusive. Those two notions have very little overlap.

When I suggest we are heading for a civil war, I'm not fully joking. The dividing point may well come over the 2nd Amendment. When the people who don't like guns try to take them away from those who do, we may finally reach the breaking point.

I heard an idea not long ago. The man suggested we let liberals choose one half of the country and we would take the other half. All Americans would have to choose and we would form two countries. He asked which one would do better. I'm pretty sure I know.

OK let me ask someone to delete the thread I just started. We seem to have had the same idea and started it simultaneously.

Here is what I posted on the "First Monday" thread that I will have deleted. Somehow.

First, I need to point out something about the "democracy" envisioned (or not envisioned) by our Founders. Dr Fate seems to think, as he pointed out in another thread, that the United States Supreme Court (herein referred to as USSC, SCOTUS or, more amusingly, the Supremes) is undemocratic and should be reformed, else our constitution is in danger.

Dr. Fate, you almost seem to be embracing a contradiction: the USSC is anti-democratic, and the government thereby doesn't operate according to the wishes of the Founders.

But wait a tic: the Founders NEVER would have--and did not--embrace "democracy" as we see it today. Article I, Sec. 2 of the Constitution of 1787 (the present one) shows exactly how "democratic" the Founders wanted the new republic to be:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.



The above first clause speaks not of the "presidential electors" described in Article II but instead of the "electors" for members of the House of Representatives---e.g., who gets to participate in elections for the House. Basically, it's saying that, if you're eligible under state law to vote in elections for the lower house [chamber] of the State Legislature (typically the popularly-elected branch of state legislatures back then), you are therefore eligible to vote in elections for your congressman.

People today assume--incorrectly--that that means you can vote as long as you were white, male and 21. Well, yes...but there was more to it than that: in most states you also had to own enough property and/or earn enough income to vote in those elections. While I do not have the exact facts at my fingertips, this likely amounts to a pitiful percentage of even just the white, adult males at the time, who got to participate in federal elections.

That sort of democracy Dr. Fate? And as we know, that was the only popularly-elected branch of the federal republic: senators were appointed by the state legislatures, as were the presidential electors (though some state legislatures came up with a "hybrid" system) until the 1840's at least (by which time SC was the only holdout as far as electing its presidential electors via a non-popular vote system; although SC was only worth 8 electoral votes, as compared to New York's 35, for instance, so that doesn't affect the statistical popular vote figures very much). And, of course, the federal judiciary was appointed by the President with the advice and consent of the Senate.

And here, you complain, the USSC of today is "undemocratic" and does not respect the constitution. As we discussed in the thread on same-sex marriage, Article III (the SC and federal judiciary) is quite vague, isn't it? 9 justices, serving to no requisite age of retirement (like a Canadian senator must step down on their 75th birthday), the only time a president gets to appoint a new one is when one kicks the bucket or takes early retirement. Of course, the appointment must be ratified by the Senate, but they're not the "people's house".

I am not saying our government should be antidemocratic in this day and age, however, even democratic governments must incorporate antidemocratic features. Just because power comes from the people--rather than a small interest--does not mean it is not just as dangerous when unchecked. Popular power must have checks on it, just as any power, to prevent dictatorship or despotism.

So may I ask, Dr. Fate, if you were to redesign the Supreme Court so that it WOULD be democratic in this day and age, and it WOULD be more respectful to the Constitution....how would you do it?

But my question is, what sort of "reconstruction" of the constitution could possibly change the supreme court? How? The countries that do have legislative supremacy and very weak constitutional courts and weak powers of judicial review don't seem to me to be the kind whose politics you would embrace, Fate!

JimHackerMP wrote:That sort of democracy Dr. Fate? And as we know, that was the only popularly-elected branch of the federal republic: senators were appointed by the state legislatures, as were the presidential electors (though some state legislatures came up with a "hybrid" system) until the 1840's at least (by which time SC was the only holdout as far as electing its presidential electors via a non-popular vote system; although SC was only worth 8 electoral votes, as compared to New York's 35, for instance, so that doesn't affect the statistical popular vote figures very much). And, of course, the federal judiciary was appointed by the President with the advice and consent of the Senate.

Sorry, but I don't intend to argue over whether the Constitution was perfect. I intend to restrain myself to the balance of power.

And here, you complain, the USSC of today is "undemocratic" and does not respect the constitution.

I don't believe I would argue that the Court is obliged to follow the wishes of the majority. However, it clearly no longer respects the Constitution. Well, or at the very least, the concept of a balance of powers or the concept of it being ONLY an Arbiter. The Court has become a legislature of social change.

As we discussed in the thread on same-sex marriage, Article III (the SC and federal judiciary) is quite vague, isn't it? 9 justices, serving to no requisite age of retirement (like a Canadian senator must step down on their 75th birthday), the only time a president gets to appoint a new one is when one kicks the bucket or takes early retirement. Of course, the appointment must be ratified by the Senate, but they're not the "people's house".

It is quite vague. I don't believe the Court was ever intended to create laws.

I am not saying our government should be antidemocratic in this day and age, however, even democratic governments must incorporate antidemocratic features. Just because power comes from the people--rather than a small interest--does not mean it is not just as dangerous when unchecked. Popular power must have checks on it, just as any power, to prevent dictatorship or despotism.

Agreed. That's why the notion of the Court ratifying a social shift is rubbish. That's not the Court's role.

So may I ask, Dr. Fate, if you were to redesign the Supreme Court so that it WOULD be democratic in this day and age, and it WOULD be more respectful to the Constitution....how would you do it?

I think we are long past the point of the idea of lifetime appointments being a bit silly. Theoretically, one could serve on the Court for 60 years or more. It is one thing to insulate the Court from public opinion. It is another to insulate it from the country altogether.

I thing the Constitution should be amended to limit the time they serve on the Court. It would be reasonable to me to think that 3 justices should be removed/appointed every four years, so a 12 year appointment would be plenty. Perhaps their terms should be fixed so that every President would get to appoint three every term. The Court would still be insulated from popular opinion, but not entirely removed from it.

JimHackerMP wrote:But my question is, what sort of "reconstruction" of the constitution could possibly change the supreme court? How? The countries that do have legislative supremacy and very weak constitutional courts and weak powers of judicial review don't seem to me to be the kind whose politics you would embrace, Fate!

It's not just the Court that is out of control. We have a Presidency that has been growing in power--to the point now where the President mocks them. He's got a phone and a pen, so who needs Congress?

Our Congress needs reform as well. I am in favor of term limits. I am in favor of limiting the time they are in session--barring being called in by the President. Why? Because they waste time doing things they should not be doing anyway.

I have Levin's Liberty Amendments book around here somewhere. I need to re-read it.

It strikes me that individual liberty is shrinking in this country and the Federal government's authority has extended into more and more areas. The Clean Water Act is a fine example. When it was passed, no one would have thought that mud puddles on private property should be studied and regulated by government. Now, the CWA is an excuse for government to restrict all manner of construction on the theory that something "might" get into the water supply at some point. The burden is on the property owner to demonstrate that it won't. We're not talking about manufacturers dumping chemicals into rivers. I'm talking about property owners wanting to put in a driveway.

Deleting the other forum. It seems to all be here anyway...

OK, thank you very much.

I'll write more later I haven't had much time today, sorry about that. But your ideas are rather interesting.

Doctor Fate wrote:

JimHackerMP wrote:That sort of democracy Dr. Fate? And as we know, that was the only popularly-elected branch of the federal republic: senators were appointed by the state legislatures, as were the presidential electors (though some state legislatures came up with a "hybrid" system) until the 1840's at least (by which time SC was the only holdout as far as electing its presidential electors via a non-popular vote system; although SC was only worth 8 electoral votes, as compared to New York's 35, for instance, so that doesn't affect the statistical popular vote figures very much). And, of course, the federal judiciary was appointed by the President with the advice and consent of the Senate.

Sorry, but I don't intend to argue over whether the Constitution was perfect. I intend to restrain myself to the balance of power.

But surely the Constitution was written to include a balance of power - and one of those balances was against democracy - which the authors thought might lead to populism. If anything, democracy is more influential that it was in the early Republic - all adult citizens can vote, Congress and Presidents are elected out of popular election not state legislatures...

And here, you complain, the USSC of today is "undemocratic" and does not respect the constitution.

I don't believe I would argue that the Court is obliged to follow the wishes of the majority. However, it clearly no longer respects the Constitution. Well, or at the very least, the concept of a balance of powers or the concept of it being ONLY an Arbiter. The Court has become a legislature of social change.

It was before and after 1790 that courts did this. Often to the annoyance of Kings and Presidents, Parliaments and Congresses. That is what you get for wanting judicial independence and enshrining Common Law.

As we discussed in the thread on same-sex marriage, Article III (the SC and federal judiciary) is quite vague, isn't it? 9 justices, serving to no requisite age of retirement (like a Canadian senator must step down on their 75th birthday), the only time a president gets to appoint a new one is when one kicks the bucket or takes early retirement. Of course, the appointment must be ratified by the Senate, but they're not the "people's house".

It is quite vague. I don't believe the Court was ever intended to create laws.

It is based on English Common Law, which the founders were big fans of. The basis of this is that laws are not simply determined by legislatures, or the whims of executives, but also through an iterative judicial process using precedent.

This differs from other systems, such as the French, where all laws come from the legislature and the judiciary are not as free to interpret.

But before the USA came along, English/UK Courts did exactly this: https://en.wikipedia.org/wiki/Lists_of_ ... _decisions

Entick v Carrington brought in a new "law" - that if something is not expressly against the law, it's not against the law. Before that Bushel established that Judges could not direct a Jury to convict (and also established habeous corpus).

That was the background that the Founding Fathers were understanding the job of courts to be - and they were referring also to Blackstones' "Commentaries on the Laws of England".

And going back to Corfield v Coryell in 1823, the US courts were establishing freedoms that are not enumerated in the Constitution - of of which was freedom of movement, later reinforced by the USSC in Crandall v Nevada.

On the wiki page I linked to is a long, long list of precedents from US courts - not all of them the USSC. Many of them seem to me to be establishing new legal standards, whether it be saying that government cannot bar something, or that it does have the right to do something.

I am not saying our government should be antidemocratic in this day and age, however, even democratic governments must incorporate antidemocratic features. Just because power comes from the people--rather than a small interest--does not mean it is not just as dangerous when unchecked. Popular power must have checks on it, just as any power, to prevent dictatorship or despotism.

Agreed. That's why the notion of the Court ratifying a social shift is rubbish. That's not the Court's role.

Thankfully it did in Loving v Virginia though, eh?

So may I ask, Dr. Fate, if you were to redesign the Supreme Court so that it WOULD be democratic in this day and age, and it WOULD be more respectful to the Constitution....how would you do it?

I think we are long past the point of the idea of lifetime appointments being a bit silly. Theoretically, one could serve on the Court for 60 years or more. It is one thing to insulate the Court from public opinion. It is another to insulate it from the country altogether.

I thing the Constitution should be amended to limit the time they serve on the Court. It would be reasonable to me to think that 3 justices should be removed/appointed every four years, so a 12 year appointment would be plenty. Perhaps their terms should be fixed so that every President would get to appoint three every term. The Court would still be insulated from popular opinion, but not entirely removed from it.

This seems quite reasonable. Of course, natural vacancies open up as well, so sometimes there would be more than the three. Either that or the maximum age limit would reduce term lengths (and help guard against dementia).

Having practiced in both federal and state court I have come to appreciate the value of the independence of federal judges. There is a lot of pressure on state judges not to offend powerful interests (e.g. The DA). Federal judges can call 'em like they see 'em. Perhaps shorter appointments are possible...but I am not sure they are necessary (or wise). If you disagree with the Court's decisions then you can always use popular discontent with the decision to win back the presidency (and perhaps get justices appointed that you like) Historically, it has not been a problem with Supreme Court thwarting the popular will . The South obstructed the popular will on civil rights for many years by controlling key Senate committees.

The constraints on the judiciary come from the fact that it has no power to enforce its decisions. If its decisions were not deferential to Congress or the president or out of step with popular opinion... the court might find its decisions not being enforced. This is why you see Roberts stepping in to save the ACA. The court only decided gay marriage after the country and lower courts had moved in the direction of supporting it. Of course, there are always going to be people unhappy when the court makes a major decision but it does not make decisions heedless of the other branches or the public.

The court also is constrained by prior decisions of the court (stare decisis). And decisions are constrained by the necessity of getting support of other justices. And of course the court waits until lower appellate and district courts have exhaustively examined the issues involved.

Agreed. My view is that, while some SC decisions are annoyingly absurd, you're making a mountain out of a mole hill when you decry the court's "legislation". But again, I am still framing a reply (sorry to draw everyone's attention here and then make myself scarce for a day or two but some *****'s hit the fan I need to take care of). I'm framing my reply still.

A standardized retirement age makes sense. The only problem is that the people typically chosen to be supremes are at the apex of their legal career, so they're not exactly going to be 35 and a prominent federal jurist already. So the retirement age cannot be too low; else you'll be appointing new justices left and right.

Here is the crux of the problem: we're talking about a supreme constitutional court, which has the authority and the power to interpret the constitution. The constitution may even contain some legal language constraining the court to limit their "leeway" in its interpretation of both law and constitution. But no matter what, the fox is going to be watching the proverbial hen-house; you've just created a constitutional court and given it the power to interpret the constitution---including the clauses limiting its power to do precisely that.

It would be interesting to see what the state judiciaries in 1787 were permitted to do as far as to interpret the respective state constitutions, and their own powers of judicial review. Because if the Founders intended the federal judiciary to do to the federal law and constitution (and state laws/constitution if appealed to the Supreme Court) what the state judiciaries did to state law/constitutions, then it's probably not a long-shot that the USSC was intended to have the power of very strong judicial review. Or not. But who can say?

Has anyone here read The Federalist Papers covering the judicial branch? I've read a few of the papers, but I don't think I got that far. Would be interesting to see the views of Madison and Hamilton toward the Court.

https://en.wikipedia.org/wiki/Federalist_No._78

Don't think it is definitive.

I'm sorry Ricky can you be more specific?

I've brought up the Federalist No. 78 right now on my Kindle and I"m reading it.

What exactly does it mean "they must hold their offices during good behavior"....that if they're caught nekkid with a hooker in a brothel they're immediately expelled from office??? (er........)

Naturally the Federalist is a work of propaganda of sorts, it was intended as a series of newspaper articles to sway New York voters (or the 5% of the white adult males likely participating) to elect friends of the new constitution rather than enemies of it. It likely didn't work, the enemies outnumbered its friends 2 to 1 in the NY convention...NY only ratified because, several days before the final vote and adjournment, word reached the convention that NH had just ratified it...and was the 9th state to do so, thereby making the new republic operative, and if they declined, they'd be this tiny little independent republic on the borders of a far-flung new country, left out of America's affairs forever. So they narrowly, and reluctantly, ratified.

Hamilton says some things that you and I would think are daft, but to me, it's simply more evidence that the Constitution has evolved over time (but I doubt this constitutional evolution or deviation as some here think it, was due entirely to the Supreme Court "trampling" on the constitution now and then).

The judiciary, on the contrary, has no influence over either the sword of the purse; no direction either of the strength or of the wealth or the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Well, it seems to me that the Supreme Court is really readily obeyed, voluntarily. Because what would happen if the President or the Congress openly defied the courts? The courts--supreme and "inferior"--have no power to impeach the president or expel congressmen for failing to follow its judgments. If the trampling on the constitution has been done, then it has been done, as the founders predicted, far more by the Congress than the courts. I mean, maybe the court wouldn't be powerful anymore if one or more presidents simply decided to ignore them one day?

JimHackerMP wrote:A standardized retirement age makes sense. The only problem is that the people typically chosen to be supremes are at the apex of their legal career, so they're not exactly going to be 35 and a prominent federal jurist already. So the retirement age cannot be too low; else you'll be appointing new justices left and right..

Here in PA we have mandatory retirement on December 31st of the year they turn 70 years of age.

JimHackerMP wrote:Well, it seems to me that the Supreme Court is really readily obeyed, voluntarily. Because what would happen if the President or the Congress openly defied the courts? The courts--supreme and "inferior"--have no power to impeach the president or expel congressmen for failing to follow its judgments. If the trampling on the constitution has been done, then it has been done, as the founders predicted, far more by the Congress than the courts. I mean, maybe the court wouldn't be powerful anymore if one or more presidents simply decided to ignore them one day?

I believe there was an instance in Andrew Jackson's administration where the Supreme Court made a ruling that he disagreed with and his response was something like "let them try to enforce it."