A loosely moderated place to ask open-ended questions
If your post meets the following criteria, it's welcome here!
Looking for support?
Looking for a community?
~Icon~ ~by~ ~@Double_A@discuss.tchncs.de~
But asking for a mechanism for states to over rule the supreme court with a 3/4 majority exists... They just make an amendment enshrining or banning whatever is allowed. It's basically the same standard.
(On constitutional matters... And as others say changing laws on non constitutional matters already exists)
They already can be. There's a few ways to do it, but all of them are slow, difficult and rely on achieving a level of political alignment which is not going to happen any time soon. And almost certainly not for the things you're likely to want.
First off, Congress can just pass a law to change the current law. For most things, this works out well enough and this still happens from time to time. But, it's much less durable than other methods. If the Supreme Court sees that law as violating the Constitution, they will strike it down and that ends that path to change.
Second, Congress and the States could amend the Constitution. The has happened 27 times in US History, but it's never been a simple process. The Constitution is hard to amend and it requires a lot of consensus. Given the fractious nature of current politics and going by voting patters, the near perfect split between left vs right, I doubt we could even get an amendment passed which just said, "don't kick puppies".
Lastly, the States could just call a Constitutional Convention and pass whatever they want. This is a bad idea. It's a really, really bad idea. The last time the States did this, they scrapped everything the previous Constitutional Convention had written and started from scratch. Maybe this would result in something better, but given whom our current president is, I'd be kinda afraid of giving any political body that sort of power right now.
Technically, there's also always the "ammo box" solution to forcing change. But, history provides lost of examples of that going very, very poorly and almost none of it going well. Also, that process is only legal if you win; so, maybe let's not go there.
This proposed amendment would be based on the ratification provision in the Constitution, which requires only three-quarters of the states to approve an amendment. However, this amendment would only serve to overturn Supreme Court rulings if three-quarters of the state supreme courts reject the ruling or issue a contrary ruling.
Ignoring the fact that this would require an amendment to the US Constitution to put in place, it's an interesting idea. Though, it's worth noting that this would have likely delayed a lot of social change in the US. The 20th Century saw a lot of landmark changes to the interpretation to the Constitution, not all of them widely popular at the time.
What would be the political and judicial consequences if this amendment were to take effect?
This would devolve a lot of power away from the Federal Government. Arguably, this would be more similar to the pre-20th Century state of affairs. Control of State Governments would be even more important to political parties and this would likely shift power even further towards small, less densely populated States. In short, I'd bet on it causing a significant conservative shift in US law. Currently, the GOP hold 23 State Government trifectas (control of all legislative branches), and the DNC 16. The other 11 States are split. [source]. While such control does not guarantee control of State Supreme Courts (e.g. Virginia's Supreme Court is still conservative), it is an indicator. But, I'd bet on a cumulative court decision being much closer to the current Supreme Court than many folks here would want.
We don't need an amendment. We control of the house and Senate, and then we need a fucking bloodbath. Every conservative scj needs to be executed for treason, and every case they've judged needs to be tossed and reheard by the new court.
Honestly I think we should just blanket revert every decision from citizens United until now and force the cases to be reheard
Congress already basically has the power to overturn court rulings. They make laws.
Courts only rule on whether things are or are not in line with those laws.
This is of course simplified and a bit absurd for humorous effect, but in broad strokes this is how things work.
Let's say there's a law on the books that says people are not allowed to wear hats. Someone gets arrested for wearing a bandana on their head. They go to court challenging that arrest arguing that bandanas are not hats.
The court hears the arguments from both sides, the guy who was arrested arguing that the law doesn't apply to bandanas, and the lawyers for the police arguing that the law applies more broadly to other forms of headwear.
The court listens to those arguments, and considers previous similar cases to look for precedent, (like maybe there was a guy who was arrested for having a baseball cap tied to his belt and whether that counted as "wearing" a hat, or someone was arrested for wearing a KFC bucket on his head and whether that met the legal definition of a hat, or someone who was arrested for wrapping a hat around their feet and whether that counted or only if you wore it on your head) Maybe they even consider whether wearing a hat should be considered a form of free speech and whether that law is legal.
And then that ruling establishes further precedent, which will affect how/if that law is applied going forward. If the court has already decided that wearing a bandana doesn't count as a hat, then it doesn't make sense to arrest people for it in the future because the court will just throw the case out based on that precedent.
Now whatever the outcome, let's say Congress doesn't like what the courts decided. They can pass newer and more specific laws concerning the legality of bandanas and other headgear, maybe even going so far as to add a constitutional amendment to specifically protect or exempt hats or bandanas as free speech.
And then going forward, the courts would need to rule on cases based on that new law or amendment.
But that’s not how it works. The Supreme Court just interprets the laws as “unconstitutional” no matter how clearly laid out they are. So passing of laws doesn’t matter anymore, and neither does precedent.
That just means the law in question is the Constitution, which can also be amended.
The Supreme Court just interprets the laws as “unconstitutional” no matter how clearly laid out they are.
The US Constitution is considered the Supreme Law. If there is a conflict between the Constitution and any State or Federal law, the law in the Constitution wins. And the Constitution can be updated via amendments. We've done this 27 times, though the 18th Amendment was canceled by the 21st Amendment, so those two are a bit of a wash. Part of the Supreme Court's job (kinda made up by the SC itself) is to interpret the law and decide if a conflict exists and how that conflict should be resolved. This is called Judaical Review.
And, this power ultimately makes sense in the context of the US Constitution. Consider for a moment that Congress "clearly laid out" a law which made supporting the other political party illegal (for whatever version of "other political party" strikes your fancy). This sort of law would be incredibly anti-democratic. It's also a pretty clear violation of the First Amendment. But, who gets to decide that? If it's just up to Congress, and they are the ones passing the law, that seems a pretty poor way to adjudicate it. Maybe the President gets to decide. And the President might do just that by vetoing it. But, it's likely that a President is going to sign it, if he's of the same party. That only leaves two options, we all start shooting at each other every time we feel the Constitution has been violated, or the last branch of the Federal Government steps in and makes the call. While certainly not non-partisan, they are somewhat removed from the political process and are more likely to make rational, long-term decisions. And it's a damn sight better than the "shoot each other" option.
In practice, this has held up reasonably well. The main problem is that the early lawmakers in the US were kinda shit at their job. The early Amendments to the US Constitution are vague and leave a lot of room for interpretation. The result is that those interpretations have changed over time and as different factions have gained more influence over the Supreme Court. And given that the Justices on the Supreme Court serve for life (barring impeachment), those shifts can be slow and long lasting.
There is also the issue of implied rights and what exactly those are. Consider everyone's favorite, a "Right to Life". What is it, and where does it exist in the US Constitution? The definition for it is kinda fuzzy in US Federal law partly because it doesn't explicitly exist in the US Constitution. There is the 9th Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Well great, but um, what are those rights? And who gets to decide? Again, we have to sort out a system for that, and the best we've come up with to date is the Supreme Court. Hardly a perfect solution, but we haven't come up with anything better yet. This is also why a lot of courts look to the writings of the Founders, especially the Federalist Papers. Trying to divine what those "other rights" are is hard and the courts try to base their decisions on some sort of textual evidence or precedent. But again, these interpretations are not universal and are subject to change as both society and the make up of the court changes.
So no, "passing of laws doesn’t matter anymore, and neither does precedent" is incorrect. Passing laws matters, but those laws need to comply with the current interpretation of the Constitution and it's amendments. And precedent matters in so much as the interpretations of the Constitution haven't changed. The issue is that the current make up of the court has a very right-wing view. So, previous precedents (which were more left-wing) are being revoked. That anyone is surprised by this is kinda dumb. In fact The early and mid-20th century saw the Supreme Court taking a much more left-wing interpretation of the Constitution, which was a departure from prior generations. Decisions such as Tennessee v. Scopes (Scopes Monkey Trial) and Roe v. Wade were major departures from previous precedent. Many of us grew up with those decisions in place and took for granted that they were "settled". But, they really weren't. They were Supreme Court decisions which could be reversed by newer Supreme Court decisions.
And while it sucks when that happens to decisions we like, it's also been useful when it's gone the other way. In US v. Cruikshank, the Supreme Court decided that the rights enumerated in the US Constitution did NOT bind the States. Specifically, that States were not bound by the 1st or 2nd Amendments and it also greatly limited the applicability of the 14th Amendment. Ultimately, this precedent would be rolled back by later decisions and Incorporation slowly redefined the relationship between the Federal Constitution and State governments.
Ultimately, law is a messy thing. And it's very much the outcome of a political process which is subject to people of all stripes, including those whose opinions and beliefs will be hostile and toxic to your own. It's a pretty terrible way to decide laws, but it's better than most everything else we've tried in history.
You literally say it yourself. Precedents are being revoked. This shouldn’t be possible by the same court. We have balance of powers for a reason, and it was pretty well decided on that things don’t get re-litigated, exactly to stop what is currently happening from happening. The Supreme Court was not meant to be used as a political weapon by the President and Congress, and yet that is exactly what is happening.
You literally say it yourself. Precedents are being revoked. This shouldn’t be possible by the same court.
Why not? You are essentially arguing that the courts should always be bound by their first decision.
We have balance of powers for a reason
You don't seem to understand what that means. The balance of powers doctrine is about ensuring that no one branch of government has too much power. A single branch changing its mind has nothing to do with that. In fact, all three branches do this all the time. Presidents can issue Executive Orders and those can (and regularly are) overridden by new Presidents. Congress passes laws regularly and it's rather common for new Congresses to change those laws. It makes no sense to say that the Courts must always be bound by the first decision to be made and never update those decisions based on new information or a changing in society.
it was pretty well decided on that things don’t get re-litigated
Have you read a history book? Things are re-litigated constantly. Something I specifically pointed out in my last comment.
exactly to stop what is currently happening from happening.
Quite the opposite, really. Re-litigation of issues is one of the ways in which issues actually get changed. Let's take something like Roe v. Wade. That was not the first time an abortion ban was in front of the Supreme Court. In fact, they had just decided US v. Vuitch. That case effectively rules that DC could enact a ban on abortion. Under your theory, Roe couldn't have happened. We could also just jump all the way back to Cruickshank (which I mentioned before) and say that the restrictions on the Federal Government in the Bill of Rights (specifically the 1st and 2nd amendments) do not restrict State Governments.
Honestly, it sounds like your real complaint is that precedents you like or agree with are being overturned. And that sucks, but Supreme Court precedents have never crystalized US law in the past. On the upshot, they won't in the future either. The actions of this Supreme Court will only last as long as the Justices continue to agree with the decisions being made. And that is likely to change eventually. It just takes time and hard political work.
Nice answer. TY for the in-depth explanation.
Isn't the answer supposed to be to just change the law?
Yeah, there's two problems with this.
The idea we're talking about wouldn't work anyway. The problem is, many of the state supreme court judges are also batshit.
The only way round this is to copy other countries that have functional judicial systems and stop making judges either political appointments or directly elected. They need to be professionals selected on merit, and firable, or at least replaceable after a term, if they're incompetent.
There should be an amendment that if <40% of the population agrees with the supreme court on ANYTHING the remaining citizens can hunt the judiciary (the ENTIRE judiciary, not just the supreme court) at their leisure like they're outlaws
Supreme Court rulings can already be overturned.
All Congress has to do is make a new law with the opposite effect (assuming that new law is constitutionally valid).
And if the Supreme Court is getting too fucky with what they define as constitutional or not, they can be impeached and removed.
Yeah I have no idea what the state supreme court would effectively having a veto do.
There's also logistical stuff what would constitute a vote to rejecting a ruling. Also contrary ruling would need to be defined since I can see a Court/judge issuing a contradictory ruling that only differs slightly from a supreme court ruling.
My take is that the Issues with check's is that it requires people to enforce the check of power. Idk if state courts are any better than the supreme Court, most likely the state courts couldn't do anything with the high threshold. I wouldn't be against this amendment like this one, but it wouldn't come up that much
Congress can already directly overturn Supreme Court rulings via either jurisdiction stripping or by expanding the size of the court.
The legislature is the traditional check on the judicial system. Letting state supreme court judges overturn the federal supreme court would kind of break the system.
I don't know if it would be a better solution but if we're amending the constitution giving citizens the power to recall federal and state elected officials and dismiss appointed ones by petition and popular vote would force politicians to care more about the will of the people and do the job they were elected/appointed to do.
only a 3/4 majority you say? Im sure we'd use it all the time. The same forces that turned the federal Supreme Court into what it is aren't at work at the state level right?
I haven't heard a proposal like that before, though of course it might exist and have legal analysis that I don't know about. IANAL and don't follow that stuff now. Any discussion of the consequences of a hypothetical amendment like that would of course be speculative. That is, there's no way to know.