Again, People Should Not Have Knee-Jerk Responses to the Supreme Court

[rjs330]

The branches aren't equal. The Judiciary is the weakest of the branches with the least power. They can only decide cases before them.

Congress could:

1. change the number of members on any court, including the Supreme Court, (and they have)
2. Specify rules regarding jurisdiction, standing, and many other aspects of the operation of the courts, (and they have)
3. Specify the limits of injunctions outside the jurisdiction of the court, the proper venue for certain cases, etc. (and they have)
4. Specify binding rules of conduct for good behavior (and they have, but not for the Supreme Court.

I'm wondering if Congress passed the law for either stacking the court further or providing term limits if the Supreme court would.just rule it unconstitutional.

 

[Pommer]

The political atmosphere in DC is corrupt with bribery, and yes this political system allows it "Lobbying" pay to play

And you think that Donald John Trump is going to “fix” that?

I can agree that he will “make a difference“, with the nature of that difference being DJT gets his cut, right off the top.

 

[Pommer]

I'm wondering if Congress passed the law for either stacking the court further or providing term limits if the Supreme court would.just rule it unconstitutional.

The Supreme Court sets the rules for the judiciary (and less so for themselves, by having no “formal” ethics code in place); Congress sets the rules as to how the Supreme Court is constituted, (i.e. what constraints the Court must adhere to as the legislative’s check on the judicial).

If there is a “controversy” between the legislative & judicial branches, there is no “venue” left to resolve the issue, since the usual place such “controversies“ are hashed out, is a party in the controversy itself.

 

[civilwarbuff]

I can agree that he will “make a difference“, with the nature of that difference being DJT gets his cut, right off the top.

You mean like the Biden family has done, with Hunter's recent help of course, all these years? You don't really think Hunter's paintings are worth 100's of thousands dollars now, do you?

 

[rjs330]

The Supreme Court sets the rules for the judiciary (and less so for themselves, by having no “formal” ethics code in place); Congress sets the rules as to how the Supreme Court is constituted, (i.e. what constraints the Court must adhere to as the legislative’s check on the judicial).

If there is a “controversy” between the legislative & judicial branches, there is no “venue” left to resolve the issue, since the usual place such “controversies“ are hashed out, is a party in the controversy itself.

Well there would be no stopping them from calling it unconstitutional. It would be interesting to.see what would happen then.

 

[RDKirk]

The problem is that there are ways in which a charitable court could find these to be official acts. For example, the president is Commander in Chief of the military - issuing an order to the military to kill someone is, therefore, an "official act".

No. The people the military kills must be within the scope of Congressional sanction. Every bullet a soldier fires is under some specific Congressional appropriation for that purpose. Sometimes that sanction can be broad, but, for instance, the "war on terror" isn't going to cover the assassination of anyone who could be a presidential political rival in any reasonable scenario. It wouldn't even cover the assassination of President Putin.

 

[Pommer]

Well there would be no stopping them from calling it unconstitutional. It would be interesting to.see what would happen then.

Why need we take it that far, though?

 

[RDKirk]

An ethics code is needed more than term limits, IMO.

Practically speaking, Supreme Court justices could be removed through impeachment. The issue is political will in Congress.

True. "Crimes and misdemeanors" cover a very wide swath.

 

[RDKirk]

So, then, it must have been true prior to this Supreme Court ruling that the president could be charged with a crime for any action while in office.

Because the only difference the Supreme Court ruling has made is that sometimes the president can't be charged with a crime for his actions.

 

[JSRG]

The judiciary back in the 1970-1980s was increasingly flummoxed with all these cases flooding into the court system which had brilliant judges who would still need to spend some amount of time understanding the science behind the case…so they decided that the people who ran the agencies would know better what their own rules mean and only occasionally had a case bubble out.

Is it time to stop the agencies from adjudicating? SCOTUS says “yes”., but we’re going to need another bumper-crop of judges to handle the load that the agencies do at a fraction of the cost.

The overturning of Chevron at this point is practically irrelevant; the Supreme Court had already stopped using it for quite a while. Look at the recent "bump stocks" case. No one, not even the dissent, bothered with any real Chevron deference with it. They went straight to the text of the law and barely paid any attention to what the agency said.

If anything, the bump stocks case was a sign of the problems of Chevron. For about a decade, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) said that semiautomatic rifles do not count as machineguns under the National Firearms Act. Then after a mass shooting involving one, it suddenly changed its mind and said they do count as machineguns, even though nothing had actually changed in terms of how semiautomic rifles worked.

So according to Chevron, if someone were arrested for having bump stocks (in a state where they weren't otherwise illegal) before 2018, the Supreme Court would say that's wrong, the ATF said they aren't machine guns. But after 2018, if someone was arrested for having the same weapon, the Supreme Court would say that's right, because the ATF said they are machineguns.

Indeed, as I heard someone mention (I think it was on the "Evil Batman" episode of the Divided Argument podcast, can't remember if it was Epps or Baude though who said it), that brings us to an issue with Chevron: This wasn't some secret thing only the judicial branch knew, agencies were aware of it also and were taking advantage of it politically.

Chevron had some good ideas behind it but I feel as time has gone by its issues have become more apparent, and it's been all but discarded by the Supreme Court already.

 

[Pommer]

The overturning of Chevron at this point is practically irrelevant; the Supreme Court had already stopped using it for quite a while. Look at the recent "bump stocks" case. No one, not even the dissent, bothered with any real Chevron deference with it. They went straight to the text of the law and barely paid any attention to what the agency said.

If anything, the bump stocks case was a sign of the problems of Chevron. For about a decade, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) said that semiautomatic rifles do not count as machineguns under the National Firearms Act. Then after a mass shooting involving one, it suddenly changed its mind and said they do count as machineguns, even though nothing had actually changed in terms of how semiautomic rifles worked.

So according to Chevron, if someone were arrested for having bump stocks (in a state where they weren't otherwise illegal) before 2018, the Supreme Court would say that's wrong, the ATF said they aren't machine guns. But after 2018, if someone was arrested for having the same weapon, the Supreme Court would say that's right, because the ATF said they are machineguns.

Indeed, as I heard someone mention (I think it was on the "Evil Batman" episode of the Divided Argument podcast, can't remember if it was Epps or Baude though who said it), that brings us to an issue with Chevron: This wasn't some secret thing only the judicial branch knew, agencies were aware of it also and were taking advantage of it politically.

Chevron had some good ideas behind it but I feel as time has gone by its issues have become more apparent, and it's been all but discarded by the Supreme Court already.

It’s still going to be “the government” who “decides” these regulatory cases, but they’ll now be in District Courts rather than the agencies, maybe the new judges will have some background in the cases that come before them, who knows?

We’re still going to need a lot more judges and courts though.

 

[Truth7t7]

And you think that Donald John Trump is going to “fix” that?

I can agree that he will “make a difference“, with the nature of that difference being DJT gets his cut, right off the top.

Correction, to to in

Is that before or after Donald Trump gives his presidential paycheck away in charity?

 

[Pommer]

Is that before or after Donald Trump gives his presidential paycheck away to charity?

He’s “losing money” being President?
Sure, sure.

 

[KCfromNC]

You mean like the Biden family has done, with Hunter's recent help of course, all these years? You don't really think Hunter's paintings are worth 100's of thousands dollars now, do you?

It is amusing seeing these old talking points trotted out even though the candidate they target is no longer in the running. Shows how powerful right wing programming is in generating irrelevant knee jerk reactions when inconvenient facts are brought up about Trump.

 

[RocksInMyHead]

So, then, it must have been true prior to this Supreme Court ruling that the president could be charged with a crime for any action while in office.

Yes - that's why Nixon accepted a pardon from Ford. It wasn't something that was ever tested, but there wasn't anything to stop it either

Because the only difference the Supreme Court ruling has made is that sometimes the president can't be charged with a crime for his actions.

Reductively, yes. But the devil is in the details. There are several problematic aspects to the ruling, as I see it:

1. Not only is the president granted immunity from prosecution for official acts, but official acts also cannot be used as evidence when prosecuting another crime - even one that is not, itself, an official act.

2. The ruling specifically states that motive is irrelevant. For example, if the president were to order the FBI to stop an investigation into his actions, he would be immune from prosecution for obstruction of justice (unless he were to be impeached and removed for it first), even though the motive is clearly criminal in nature and it is a blatant misuse of presidential authority, because the FBI is subordinate to the Executive. The reliance on the impeachment process to remove immunity ignores the reality that impeachment has devolved into a partisan political tool.

3. While "official acts" are fairly well-defined in a constitutional sense, arguments can be made for pretty much anything a president does while in office falling under that umbrella.

 

[RocksInMyHead]

No. The people the military kills must be within the scope of Congressional sanction. Every bullet a soldier fires is under some specific Congressional appropriation for that purpose. Sometimes that sanction can be broad, but, for instance, the "war on terror" isn't going to cover the assassination of anyone who could be a presidential political rival in any reasonable scenario. It wouldn't even cover the assassination of President Putin.

While I agree with the sentiment of what you're saying here, in some ways, we've stepped beyond the bounds of "reasonable scenarios". The point is that an argument could be made that killing a political rival is an official act. It would require some convoluted reasoning and a friendly court, but that's the exact scenario we're seeing play out in Florida right now (the convoluted reasoning with a friendly court, not the political assassination).

And, let me be clear, I don't think that we're at a point now where this could happen. But we seem to be moving in that direction with the polarization of politics, the ramping up of doomsday rhetoric when it comes to political candidates, and the growing bias seen in the courts. I worry that this Supreme Court decision just opens the door wider, and I don't see what purpose it serves other than protecting Trump.

 

[rjs330]

Why need we take it that far, though?

Because the Supreme Court is tasked with determining if a law is constitutional.

 

[rjs330]

The point is that an argument could be made that killing a political rival is an official act. It would require some convoluted reasoning and a friendly court, but that's the exact scenario we're seeing play out in Florida right now (the convoluted reasoning with a friendly court, not the political assassination)

No we aren't seeing that. Just because you don't like a ruling doesn't mean it's a friendly court that gave in to convoluted reasoning. If you seriously believe that, then an argument could be made that any court that makes a ruling we don't like only ruled that way because they are a friendly court to the other side.

Are we now making an admission that the courts are now purely political and rule based upon their political leanings rather than the rule of law and the constitution?

 

[ThatRobGuy]

I have no problem with new legislation that would

1 limit the term of Supreme Court justices to 18 years
2 enforce a code of ethics on the Supreme Court justices.

I'd vote yes on a code of ethics, but no on term limits.

The choice to not have supreme court justices be term limited (like a President) or have to periodically run for re-election (like a legislator) wasn't just a random decision they flipped a coin on. There are valid reasons for why a SCOTUS position isn't term limited.

The idea was to have the supreme court be a "check" on the other branches, while it's not perfect no matter how you do it, it's a "less than optimal" check on the Executive branch if a president is getting to appoint new like-minded roster every 2-3 election cycles. It'd basically have a similar effect as court-packing. The idea was that there's value in having periods of time where SCOTUS isn't in-line with whoever the in-power party is in the other branches.

Also, having elevated rates of supreme court attrition can create a mess with regards to judicial precedent for lower courts to follow if the supreme court precedent on certain issues is flip-flopping every 5-10 years.

Even in parliamentary systems like the UK, their Supreme Court members serve on a very lengthy basis (only difference being they have a mandatory retirement age of 75)


And with this proposal they've made, perhaps I'm cynical, but I don't think 18 years wasn't a number they pulled out of thin air. (as opposed to making it 12 or 20)

Setting it at 18 years allows them to draw the cutoff line precisely where it would impact only 3 conservative justices Clearance Thomas (over 30 years)... and John Roberts and Sam Alito (who've both been there for just over that prescribed 18 years mark)...but without impacting any of the liberal justices (as Kagan and Sotomayor would still get another 4 years before they'd be term limited out under the proposal)

If you made it 20, that only removes Thomas (and still leaves a conservative majority), if you make it 12, that also removes Kagan and Sotomayor. (which means if Trump got elected, he could still create a conservative majority)

I'm thinking that 18 was picked for a reason...that reason being it allows them to flip it to a liberal majority, and still gives Kagan and Sotomayor another 3-4 years which means that even if Trump won, he wouldn't be able to replace them until his term was almost over.


...and I had to chuckle a bit at this part:
Biden also called for a constitutional amendment that would prohibit blanket immunity for presidents, a rebuke of the Supreme Court after it ruled this month that Trump is broadly immune from prosecution for official acts. He called the decision a “dangerous precedent.”


“There are no kings in America,” Biden said. “Each of us is equal before the law. No one is above the law.”

...what an absurd statement. No, a president is not equal to regular citizens, and of course they're above the law for certain official matters. Can I, as a regular citizen authorize to send in a strike force to kill an enemy of the US in another country? Can I as a regular citizen issue an executive order that sets explicit directives that agencies have to follow? Can I veto a law I don't like from the legislature or commute a felons sentence and get them out of jail or issue pardons after they were convicted by their peers and sentenced by a judge?

If the answer to all of those is "No", then no, clearly a president and I are not "equals"

 

[RocksInMyHead]

No we aren't seeing that. Just because you don't like a ruling doesn't mean it's a friendly court that gave in to convoluted reasoning. If you seriously believe that, then an argument could be made that any court that makes a ruling we don't like only ruled that way because they are a friendly court to the other side.

I make that statement not because I don't like the ruling, but because I think (and virtually every legal scholar I've seen weigh in agrees) that the reasoning is unsound and flies in the face of precedent. There are rulings that I disagree with that are still based on sound legal reasoning - Dobbs, for example. While the decision to go after Roe was clearly political in nature, the legal justification for striking it down was reasonable.

Are we now making an admission that the courts are now purely political and rule based upon their political leanings rather than the rule of law and the constitution?

The courts in general? No. But certain judges and circuits certainly seem to be heading that direction. Aileen Cannon is the most obvious example, and I'd also call out the 5th Circuit and the 9th Circuit.

The reality is that it's impossible for all rulings to be entirely founded on the constitution and the laws - there's always going to be some level of interpretation when it comes to scenarios that were not envisioned when the law was written. And in those grey areas, the rulings do seem to be more influenced by politics lately, rather than sound legal arguments.