View Poll Results: Is the Supreme Court being the Ultimate Arbiter of Constituionality a Problem?

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  • The Supreme Court is not the ultimate arbiter of constitutionality

    6 17.65%
  • The supreme court is the ultimate arbiter and there are no problems with that

    5 14.71%
  • The supreme court is the ultimate arbiter and there are problems but it is the best system possible

    14 41.18%
  • the SCOTUS is the ultimate arbiter its a problem, but there are ways to improve (explain)

    8 23.53%
  • Other/Don't Know

    1 2.94%
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Thread: Supreme Court as the Ultimate Arbiter?

  1. #31
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Redress View Post
    Do you realize that multiple papers have been written analyzing the phrase "bear arms" in historical context and that the meaning might not be as clear cut as you think?
    Yes, and said papers are not part of the Constitution.
    Freedom of speech is not freedom from criticism.

  2. #32
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Kobie View Post
    Yes, and said papers are not part of the Constitution.
    <~~~~~~~~~~~~~~~point























    <~~~~~~~~~~~~~~~~~~your head


    The point is that if the meaning at the time written was other than you think, then your whole point falls apart. There is strong evidence that this is the case.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

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  3. #33
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Redress View Post
    <~~~~~~~~~~~~~~~point

    <~~~~~~~~~~~~~~~~~~your head


    The point is that if the meaning at the time written was other than you think, then your whole point falls apart. There is strong evidence that this is the case.
    Your condescension is duly noted.

    I wasn't just picking on the second to pick on it, I just chose it because it's normally one that comes up in conversation regarding its ambiguity.

    I, for one, DON'T think that everything should be completely subject to the whims of people who have been dead for 200 years, especially if those whims were NOT codified in the document that some are advocating jailing people for violating. The general principles of the Bill of Rights, I am firmly behind, but to insist they're closed to interpretation as society progresses is, to me, asinine.
    Freedom of speech is not freedom from criticism.

  4. #34
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by reinoe View Post
    The worst Supreme Court was the Taney court from 1836 to around 1864. If you want to see an activist court see that court. The Rehnquist court comes close though. Two terrible Courts.
    what about the court of the lockner era?

  5. #35
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    Re: Supreme Court as the Ultimate Arbiter?

    Activism in terms of striking down laws is not a bad thing. Activism in terms of making new law is.

  6. #36
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Anagram View Post
    I see the Supreme Court as intended to be the ultimate arbiter for constitutionality in the United States. I also think that it was intended to be that way. I know there are some schools of thought that the Supreme Court was never intended to have judicial review, and while I see the merits of that based on a few Jefferson quotes, ultimately I believe that it was intended. Alexander Hamilton seems to surmise as much in Federalist 78 and 80, as well as anti-federalist Robert Yates in anti-Federalist 78. There is also a Stanford study making a good case for it being in use long before the Marbury.

    But I'm wondering if this is such a good idea. Many Supreme Court cases are decided 5-4, and after the case becomes fairly rigid precedent forever, with little chance of changing, although the court has certainly reversed itself, with over 100 reversals in the last 80 years. The most obvious example being the difference between Plessy v Ferguson in 1896 and Brown vs Board of Education in 1954. Still though, precedent is fairly likely to stand unless clearly wrong. What bothers me though, is that this near permanence of some of these decisions would be different if one judge retired during a Democrat's term instead of a Republican's or vice versa. Although there are a few David Souter's generally each president knows exactly what he's going to get when he appoints a judge. For instance if Ginsburg or Breyer had retired or died during Bush's presidency, we likely would've had a different opinion against the Health Care Mandate. If Scalia or Thomas had retired in 2009 we would've most likely had a different ruling in Citizen's United. Now we have these same types of problems in Congress, the Presidency, and state legislatures too. Sometimes one of those makes a bad decision. However, it is relatively easy to correct those. If the bad decision was unconstitutional the courts could strike it down, and if it was an otherwise bad decision the people have opportunities relatively frequently to correct them by voting other members in. For Supreme Court mistakes though, not only do you have to wait for the membership to change, which can take years because of their lifelong terms, you must go through the rigorous process of having a case brought to them and accepted by them, and hope that the argument is compelling enough that it overrules the precedent. Chances are that the average person believes the Supreme Court made at least one wrong decision recently between Citizens United and NFIB v. Sebelius among the other hundreds of cases the SCOTUS rules on, but that there will be no opportunity to change the decision any time soon, and possibly for decades.

    I think Jefferson is correct when he says: "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."

    So I do think there are some problems with the role of the SCOTUS. However, I'm not sure there's anything that can really be done to fix them. I can't think of a better system than the one we have now. I don't think letting individual states overrule Supreme Court cases is the best idea. Having potentially 50 different views on constitutionality with no way to enforce anything nationally if an individual state disagrees. I'm not really sure how to put a check on the power of the Supreme Court on constitutionality, without creating another unchecked body.

    So questions:

    Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

    Do you agree that it is a problem?

    Is there actually away to solve the problem and make things better than they are now?
    There is only one power that actually CAN reverse a SCOTUS ruling BUT it is only aplicable on a case by case system and is only tied to the criminal side of our court system. That is Jury Nullification. But otherwise your spot on.
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Anagram View Post
    Do you agree that the SCOTUS is the ultimate arbiter of constitutionality?

    Do you agree that it is a problem?

    Is there actually away to solve the problem and make things better than they are now?
    I am surprised a the responses here. Neither Congress, not the President, nor SCOTUS is the ultimate arbiter of what is constitutional. The People of the United States are the final say. We always are.

  8. #38
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    Re: Supreme Court as the Ultimate Arbiter?

    Andrew Jackson sure didn't think it's a good idea, but if not then the court is pretty well neutered, as it can't pass legislation on its own. Until the other 2 branches stop sucking so terribly, I think it's pretty well necessary that at least one branch of govt will at least attempt to uphold the constitution.

  9. #39
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Redress View Post
    Despite that race to fill vacancies, niether side has gotten an overwhelming majority, and a surprising number of times one or more judges surprises you by how they rule. Best example recently would be the ACA ruling. I would also point out that the rulings tend to be ideological, not political in nature.

    A computer is only as good, and as impartial, as it's programmer. Find me an unbiased programming team. Good luck with that.
    The best part about a computer deciding would that probably all kinds of rulings that returned might be surprisingly constitutional or unconstitutional, meaning that in order to resolve the issue, the government would have to amend the constitution to get what they wanted. There might be hundreds of new constitutional amendments to pass, but that's not such a bad thing: we have one of the shortest constitutions and bills of rights in the democratic world.
    "Obamacare delenda est"

  10. #40
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    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by hallam View Post
    I am surprised a the responses here. Neither Congress, not the President, nor SCOTUS is the ultimate arbiter of what is constitutional. The People of the United States are the final say. We always are.
    I think that's actually very wrong. The Constitution was written precisely to prevent the people from taking away each other's rights.

    What you're thinking of is more like what Britain has, the concept of Parliamentary Supremacy. Parliament can do whatever it wants, and is only accountable to the voters.

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