Home » The Supreme Court system is broken

Comments

The Supreme Court system is broken — 53 Comments

  1. Can anyone truly doubt that, were Schumer running the Senate with a Democrat in the White House, he would not do everything within his power to confirm, quickly and decisively, a progressive nomination from his president? Can anyone believe that, in this hypothetical case, deranged conservatives would be threatening to unleash more chaos in the streets and to burn down the whole system?

  2. Is the system broken, or, are some people simply behaving badly? No system works if enough malefactors act up.

  3. what actually happened was that SCOTUS used a supposed right of “privacy” to prohibit the banning of abortion

    Conceived as a wicked solution. Birthed in a Twilight Amendment. Life deemed unworthy of life was/is a progressive principle indulged through liberal license.

  4. No system works if enough malefactors act up.

    Exactly. Religious philosophy (i.e. behavioral protocol), or its relativistic cousin “ethics”, to keep honest people honest, and competing interests to mitigate the progress of others running amuck.

  5. Our Founding Fathers left one item out of the Constitution.
    A specification on the number of justices on the Supreme Court.
    It should have remained at 7, because Roosevelt expanded it to 9.

    A second item that might have been useful would have been either a term limit or an age limit for members of the House, the Senate, and the Supreme Court.

    Because of Roosevelt, we got a term limit for POTUS.

  6. The best system of government, as Aristotle and Thucydides recognized, is a mixed one which shares power between the Many and the Few. Our system has evolved in ways somewhat different from what the Framers intended, but the federal judiciary currently represents the Few and their values, and acts to check democratic majorities (or mob rule, if you wish). The real problem is that the Few have decided that the major moral and political issue of our time is sexual freedom, a rather base and trivial concern. I am by upbringing, education, and income a member of the Few (as is neo, mostly), but I find this concern of my fellows rather baffling. Maybe neo has some thoughts about why wealthy educated people consider sexual freedom the major issue of our time.

  7. Roe enshrines the argument that a woman’s “right to privacy” supercedes her baby’s right to life.

    That is why advocates of pro-“choice” must argue that the unborn are not a person and only a lump of cells, i.e. a fetus.

    Willfully blind to both where that argument leads (societal dehumanization) and that willful blindness does not absolve them of their ‘choice’.

    Ignorance is excusable, as we cannot be responsible for that of which we are unaware. Willful blindness is a refusal to consider whether we are in error and, at the least perpetuates error while at worst turns error into monstrousness.

  8. The trouble with SCOTUS, whether 7 or 9 or 59 judges, is that it is a tyranny just like the Politburo of the USSR. It is a handful of regents, and it is ultimately our doom, or a cause for armed conflict. That Superiority is inherently morally corrupting is shown by the inexorable leftward shift of judges once empaneled. An amazing example is these six jurists who overwhelm biology with law by declaring each individual has the right to choose its own “gender”; we do not hear the word “sex” used any more, as in XX or XY, do we?

    First, no Federal judge should have lifetime tenure.
    Second, term-limit them. Say ten years per seat. One could ascend from District (10yr max) to Appeals (same) to SCOTUS (same), but never down the ladder again.
    Third, the peoples’ representatives should have the power to overturn SCOTUS decisions, by a simple majority of House and Senate combined; no supermajority. They represent the people; SCOTUS does not.

    As far as Roe is concerned, it was a long time abirthing, back to the days of the Griswold decision, the venture into penumbras and emanations. Which is the power of the tyranny under which we have already lived a long time. Who gave John Marshall the power?? He arrogated that unto SCOTUS and himself.

  9. je,

    Heads I win, tails you lose… is the game they play.

    y81,

    The Roman patrician class long ago demonstrated that “Bread and Circuses” is a highly effective way for the Few to control the Mob. Our wealthy, ‘educated’ elite know full well what happened to both the French and Russian elite and, to a lesser degree our Robber Baron class. Keep the mob satiated is the best way to be secure while fleecing the sheep.

    Their problem is that out of greed and white guilt, they are enabling the means with which they will be hung.

  10. Cicero,

    If the “people’s representatives” have the power to overturn SCOTUS rulings, especially by only a simple majority, then the current consensus of the mob determines what is Constitutional and what is not.

    The trouble with our governance is that, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” [ my emphasis]

    A sustainable morality can only be achieved by a religious people because absent a ‘higher authority’ morality is reduced to the current consensus of the mob. And that is a ‘boat without a rudder’.

  11. Not just Roe, but obergefell v. hodges.
    And bostock v clayton county .

    Outrageous. If Bostock was based on a 1964 Civil rights law that admittedly was not envisioned by it’s authors as protecting transgenders, it demonstrates most clearly legislation from the bench.

  12. Yes, exactly this. Great post. I have been mildly sympathetic to the pro-choice movement much of my life, but am becoming more pro-life as I age. I cherish my 3 grown kids, want grandchildren some day, and cannot help but look at horror on the genocide of 10mm+ black babies aborted since Roe v Wade.

    This was a terrible piece of constitutional law, inventing “rights” out of whole cloth. We needed a national consensus on this issue, and a few black robes stole it from us. It has since happened again and again.

    What is the left afraid of? If their will matches the nation’s on this issue, turn it over to the voters, whom they clearly don’t trust.

  13. Unfortunately the Supreme Court is a ratchet wrench. If it goes left, it goes, but if it goes right, it doesn’t go.

    Perhaps more than anything, this discourages my optimism that things will work out in the long run.

  14. The system isn’t broken. It is the victim of malpractice.

    I have never quite understood why some Republican President has not simply said, “the court has over stepped its bounds. It is treading on the purview of equal branches; in this case the Executive. Therefore, I am ignoring this extra constitutional ruling. If the court wishes to enforce it, they better bring their Marine Corps.”

    All hell would break loose. If the Democrats controlled the House they would wield their favorite fly swatter, and impeach. If they also controlled the Senate, they might succeed. So, I suppose a prudent President would pick the time and issue.

    Screams, and gnashing of teeth. The usual talking heads would declare a constitutional crisis–pretending that there had not been one since at least FDR–but the air might be a lot clearer.

    At this time IMO Trump should quit mocking poor old Joe, and make the point to the American people that he was duly elected to serve until 1/20/21; not until 9/21/20. The opposition does not get to define the limits of his purview during his legal term in office. Furthermore, the Senate is also being paid to work through their complete term. (The bit about the Senate working is a bit tongue in cheek.)

    Just to rub it in, he might remind Schumer, Biden et al, that they were warned when they cheered Harry Reid on to trample all over precedent and procedures to steam roll the GOP minority, that it would neither be forgotten nor forgiven. But, they apparently thought that they would wield power forever.

  15. The problem isn’t the system.

    The problem is us.

    There is no system that can be made by humans and that has humans running it that will not degrade and degenerate over time.

    The duty of citizens of a Constitutional Republic, vs peasants of an aristocracy, is to pay attention to those who raise themselves up as our “betters”, eyeball them hard and constantly, keep their feet to the fire and drag them down and destroy them when they go astray.

    And, there is a duty to protect our lands and culture from intrusive enemy, either in persons or ideology. Do whatever is required to destroy that enemy which is itself bent toward destroying us.

    Instead, we hide from it. Say it’s not our responsibility. Cry out for “someone do something!”

    We act as peasants. Not citizens.

    We wait for our betters to fix the issues they’ve made because our betters are the cause of the issues.

    The powers that be have grown accustomed to treating us as idiot cattle because we insist on behaving as idiot cattle.

  16. It should have remained at 7, because Roosevelt expanded it to 9.

    The number fluctuated between five and ten for 80 years, then was fixed at nine in 1869. Again, setting the number requires an act of Congress, so Roosevelt could not have made that happen.

  17. There is no system that can be made by humans and that has humans running it that will not degrade and degenerate over time.

    No, but there are more functional and less functional systems. That’s why we have systems. The system we’ve got stinks.

  18. I have never quite understood why some Republican President has not simply said, “the court has over stepped its bounds. It is treading on the purview of equal branches; in this case the Executive. Therefore, I am ignoring this extra constitutional ruling. If the court wishes to enforce it, they better bring their Marine Corps.”

    Just deny them the use of the U.S. Marshal Service.

    One obvious occasion for the President to have done that would have been in 1985, when a power drunk federal judge in the Hudson Valley jailed three members of the Yonkers City Council because they refused to comply with an order from him about how to site public housing projects. (The judge in question lived in Pound Ridge, NY, which had no projects). I’d have loved it if Reagan just read a brief open letter to judge whatshisname telling him ‘sorry, you’re gonna have to work this out with the City Council on your own’.

  19. “The system we’ve got stinks.”—We have the oldest written Constitution in the world, and the oldest continuous democratic republic. So we don’t totally stink.

  20. “The system we’ve got stinks.”—We have the oldest written Constitution in the world, and the oldest continuous democratic republic. So we don’t totally stink.

    It has a certain durability, but it hasn’t functioned passably in decades.

  21. Art Deco, I am sure that if challenged you could name a system that works better.

    I stand by my statement; “not broken, but victim of malpractice”. I would add that in addition to malpractice it has been victimized by timidity bordering on cowardice by those in a position to challenge the malpractice.

  22. It has a certain durability, but it hasn’t functioned passably in decades.

    *********

    You’re confusing cause for effect.

    It’s been dysfunctional because we sat on our hands and watched it get taken over by domestic enemy and did exactly nothing but whine to each other about it.

    We. Let. It. Happen.

  23. “We. Let. It. Happen” Hereogar

    Anybody who spoke out against it and voted for those who objected to it… did NOT let it happen. We were overridden.

    It has often been said that, “those who do not learn from history are doomed to repeat history’s lessons”.

    Far less often is the corollary heard; in a representative democracy, those who DO learn from history are often dragged through a repeat of the same lessons by those who did NOT learn from history’s lessons.

    We are currently threatened with that circumstance.

    History, improperly taught as mere dates is useless. When properly taught of immense value.

    Example; in 480BC a few Greeks at Thermopylae delayed a much larger Persian force invading Greece. The average student is left with… so what and quickly forgets it.

    Context is everything because in context is meaning found; in 480BC a few Greeks at Thermopylae critically delayed a much larger Persian force invading Greece and in sacrificing their lives, saved democracy from being still born. That sacrifice allowed the rise of the Western Civilization that birthed America. The most important human achievement in history.

    Had Leonidas not led his 300 Spartans and the 6700 other greeks to the defense of Greece, the entire history of the world would be different. Almost certainly, there never would have been an enlightenment, never been an America.

  24. “What is the left afraid of? If their will matches the nation’s on this issue, turn it over to the voters, whom they clearly don’t trust.” – Brad

    Your question is rhetorical, right?
    I can remember some elections, especially those concerning propositions in California, where leftist judges overruled the voters (FROM LEFTIST CALIFORNIA), but none where the nation’s will matched the Left’s agenda.

  25. Oldflyer on September 21, 2020 at 8:32 pm said:
    The system isn’t broken. It is the victim of malpractice.

    I have never quite understood why some Republican President has not simply said, “the court has over stepped its bounds. It is treading on the purview of equal branches; in this case the Executive. Therefore, I am ignoring this extra constitutional ruling. If the court wishes to enforce it, they better bring their Marine Corps.”
    * * *
    https://en.wikipedia.org/wiki/Worcester_v._Georgia
    In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: “John Marshall has made his decision; now let him enforce it!”[5][6] This quotation first appeared twenty years after Jackson had died, in newspaper publisher Horace Greeley’s 1865 history of the U.S. Civil War, The American Conflict.[6] It was, however, reported in the press in March 1832 that Jackson was unlikely to aid in carrying out the court’s decision if his assistance were to be requested.[7]

    The Court did not ask federal marshals to carry out the decision.[9]

  26. “Context is everything because in context is meaning found;” – Geoffrey

    OR: victory usually goes to those who frame the narrative their way most persuasively.
    Sometimes that even includes telling the truth.

  27. The Left is attacking along a familiar line, and using familiar “troops” – that is, faux Christians.
    https://pjmedia.com/news-and-politics/tyler-o-neil/2020/09/21/has-the-smear-campaign-against-amy-coney-barrett-already-begun-n948943

    Amy Coney Barrett, Trump’s top pick, believes a “legal career is but a means to an end…and that end is building the Kingdom of God.”

    I’m a Christian but this is terrifying

    RT if you care about the separation of church and state

    The Tweeter is taken apart by others, but there is only one real explanation for her lack of knowledge about a common, foundational, Christian doctrine.

    https://babylonbee.com/news/survey-finds-95-of-evangelicals-dont-believe-in-god-bible-jesus

    My only quibble, based on what the Bee claims Evangelicals do believe in, is that she more likely identifies as an Episcopalian.

    https://episcopalchurch.org/what-we-believe

  28. Roe, being decided, no Legislated, by the Court, began the whole sorry over-politicization of every aspect of life.

    Women need the right to choose how to control their bodies.
    Unborn human fetal babies need the right to live, to be born.

    An unborn baby is inside of a woman, but with different DNA and thus a different body. Women who choose to have sex are choosing to risk getting pregnant.

    Pregnancy risk is unfair – women have it, men don’t; and trans folk don’t. Only real XX women.

    The EU has countries like Poland where abortion is illegal; and only recently was it legalized in Ireland.

    Legal abortion makes it harder for a women to say “no” to sex with any party mate. So more women say “yes”, or at least avoid saying “no” and accept sex they’re not sure they want, especially after a few drinks (like “Sex on the beach”!)

    Feminists “say” they want women to be less sexualized objects – but a legal abortion culture means, in practice, all women are sexually available sex objects, all the time.

    59 is a good large number, but more important is the process of choosing. 9 now plus one from each of the 50 states, so the “national” issue becomes much less. Giving states more power will be good for getting an amendment passed to change that selection process; tho Congress could pass such a law today.

    This is a far better change than getting rid of the electoral college. The Court is making political decisions, more than legal decisions.

    A country is the people AND the land – and the customs of the people who live there. Always different between city folk and the rest.

  29. I thought this post had a refreshingly different viewpoint, that will be totally lost on the raging partisans.

    https://www.deseret.com/opinion/2020/9/18/21446272/ruth-bader-ginsburg-rbg-died-pancreatic-cancer-scalia-friends-disagree-better

    Ginsburg and Scalia were indeed an interesting friendship. They agreed on little philosophically but were united in their belief of the right way to treat people, how to learn from others and what could happen when others listen across their differences.

    rin Carmon, co-author of “Notorious RBG: The Life and Times of Ruth Bader Ginsburg” wrote in the Washington Post in 2017, “Ginsburg was grateful for how Scalia disagreed: giving her a copy of his dissent as soon as possible, so she could properly respond. ‘He absolutely ruined my weekend, but my opinion is ever so much better because of his stinging dissent,’ she said. Whether or not it was how Scalia saw it, for Ginsburg their public friendship also made a statement about the court as an institution: that it was strengthened by respectful debate, that it could work no matter how polarized its members were.”

    Ginsburg showed in her relationship and friendship with Scalia that unity and harmony in the United States had little to do with disagreeing less; it was really about learning to disagree better. America is at its best when it is a country of big ideas, competing philosophies and respectful debate.

  30. what actually happened was that SCOTUS used a supposed right of “privacy” to prohibit the banning of abortion, under the Due Process Clause of the Fourteenth Amendment.

    And look to what uses the “right of privacy” is put now.

  31. Throwing down the gauntlet.
    https://www.breitbart.com/clips/2020/09/21/graham-weve-got-the-votes-to-confirm-justice-ginsburgs-replacement-before-the-election-and-thats-whats-coming/

    Graham said, “We’ve got the votes to confirm Justice Ginsburg’s replacement before the election. We’re going to move forward in the committee. We’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election. That’s the constitutional process. After Kavanaugh, everything changed with me. They’re not going to intimidate me, Mitch McConnell or anybody else. … The nominee is going to be supported by every Republican in the Judiciary Committee, and we’ve got the votes to confirm the judge — the justice on the floor of the Senate before the election. And that’s what’s coming.”

    Nobody here is unaware of why Senator Graham changed his 2016 stance on election-year Supreme Court nominations, but just as a reminder —

    https://www.chicksonright.com/blog/2020/09/21/2018-video-lindsey-graham-to-dems-boy-yall-want-power-god-i-hope-you-never-get-it/

  32. PapaMAS: the longer I am alive, and I’m 60 now, it seems that its human nature to try to get around any system, any rules, any laws for our own benefit and damn the other guy.

  33. Art Deco, I am sure that if challenged you could name a system that works better.

    God works better.

  34. The ironic thing about that proposal from Reynolds to which Neo referred is that it would restore something of the spirit of Amendment XVII. I could be happy about this, were it not for the fact that it would be simultaneously an admission that our system of federal government will have emerged fully from its chrysalis in the form of a kritarchy. I’m not quite ready to throw in the towel on the Constitution yet.

    I suppose this means that the next true constitutional crisis at the Federal level could well come in the form of a decisive test of strength between the Executive and the Judiciary, the Legislative being something of a bystander at that point as real power will have migrated from it to the other branches by then. This may be down the road some years yet, but I could see it happening fairly soon, too, depending. Trump vs. the Ninth Circuit + SCOTUS, for example, in 2022, say; or a future socialist President vs. a conservative SCOTUS (I don’t know enough about 1935, else I might be tempted to refer to that instance). Or maybe something a little more creative, like some coalition of governors vs. a state Supreme Court. There may be several possible triggers and it’s all just me thinking out loud, anyway.

  35. Ymarsakar, responded to my challenge to Art Deco: “Art Deco, I am sure that if challenged you could name a system that works better.” by opining,”God works better.”

    God has granted us free will when it comes to political arrangements–for the time being.

    Hearkening back to my suggestion at 8:32 yesterday evening that a President simply ignore extra-constitutional rulings by Judges and SCOTUS, I see this morning that some Democrats are advocating that if Trump/McConnell move forward then Harris/Biden ignore any ruling by SCOTUS.

  36. Geoffrey Britain on 9/21 said, “The trouble with our governance is that, ‘Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.’ ”
    With which I totally agree. Though he left out “with a predominant middle class”, which holds those values.

    Well, Houston, we have a problem. Morality and religiosity cannot be imposed upon a people unless it is by Islam: convert or die. All other faiths are based on persuasion, not coercion.

    There is a reason the Democratic Party has been the secular, anti-God Party, increasingly anti-Semitic and pro-Islamic, and GB put his finger on the why.

    At some point we need to cease excusing the DP as merely being “The Other”, and condemn it as evil. I think that point has been passed already!

  37. Art Deco, I am sure that if challenged you could name a system that works better.

    The Journal of Democracy published an article a number of years ago comparing constitutional systems. It included regressions of economic performance measures. I imagine there’s some literature on that and some critiques of method. (That particular article advanced the thesis that parliamentary regimes are preferable).

    I can think of a dozen different things you might do to improve the political architecture. Of course, you never really know ex ante how things will work out in re any different measure. So many unobserved vectors.

  38. “The system we’ve got stinks.”

    The system is fine. It could possibly be improved here or there but that’s not the cause of our current distress. Take the Supreme Court as Super Legislature. It’s a terrible way to take care of the public’s business but it has and can be workable.

    The problem is that the Left is insisting, and threatening violence to enforce it, that the Right is NEVER allowed to control that Super Legislature. That’s not a systemic issue. That’s a human one.

    Mike

  39. You can’t allow abortion after 20 weeks of gestation because premies at 20 weeks have about 1-3% chance of surviving. NEJM. This means that if they do a prostaglandin-induced abortion, the fetus has a good chance of being alive and they have to do something to kill it, post delivery. Usually they put it in a box on a shelf someplace and let it die from hypothermia. No one wants the baby because it has usually been aborted often for trisomy 21 (Downs,) or 18 or simply because the mother could not decide what to do. If they do a D&E, dilation and extraction, earlier than 20 weeks, or a D&C in the first trimester, of course the fetus is disrupted and this quandary is avoided but again, if done well into the second trimester. the OB personnel, are not pleased or are even revolted by the large fetal fragments. The Court made a clumsy decision by allowing abortions through the end of the second trimester—26 weeks—and should have restricted the procedure to the first trimester, 13 weeks, just as all the European nations have done, or at most 20 weeks… I don’t think Blackman and SCOTUS had good consultation prior to the decision in RvW. All the states that used to allow it for the sake of the mother’s life, used the 20 week limit.

    The problem now is that even talking about RvW is like talking about the collapse of feminine rights and principles and is seen as a slippery slope to hell.
    So we have to defend forever a dumb law.

  40. Dnaxy:

    Also it’s only in recent years that fetuses that small can survive. The law has not kept pace with medicine. What’s more, now that ultrasound has advanced so greatly, we get a better idea of what the young fetuses look like in the womb, even as early as 2 or 3 months. They look like tiny little babies even though everything isn’t totally formed. See this.

  41. The system is fine.

    No, it’s not, or your federal appropriations would not consist of ghastly catch-all continuing resolutions. That’s for starters.

  42. The idea that Roe v. Wade was actually an impediment the evolution of Abortion laws and regulations is an interesting point of veiw that I had never considered.

    Thank you.

Leave a Reply

Your email address will not be published. Required fields are marked *

HTML tags allowed in your comment: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>