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

Voters
34. You may not vote on this poll
  • 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%
Page 1 of 8 123 ... LastLast
Results 1 to 10 of 80

Thread: Supreme Court as the Ultimate Arbiter?

  1. #1
    Global Moderator
    Moderator
    Anagram's Avatar
    Join Date
    Jun 2011
    Location
    St. Louis MO
    Last Seen
    Today @ 12:46 AM
    Gender
    Lean
    Slightly Conservative
    Posts
    6,190

    Supreme Court as the Ultimate Arbiter?

    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 should be Instant Runoff Voting

  2. #2
    Global Moderator
    Moderator
    Anagram's Avatar
    Join Date
    Jun 2011
    Location
    St. Louis MO
    Last Seen
    Today @ 12:46 AM
    Gender
    Lean
    Slightly Conservative
    Posts
    6,190

    Re: Supreme Court as the Ultimate Arbiter?

    Of course today is really the first time I've thought in depth about this so I could be way off base here.
    There should be Instant Runoff Voting

  3. #3
    Student francois60's Avatar
    Join Date
    Aug 2012
    Location
    Coral Springs, FL
    Last Seen
    02-12-15 @ 03:29 AM
    Gender
    Lean
    Libertarian
    Posts
    251

    Re: Supreme Court as the Ultimate Arbiter?

    What was supposed to happen is that Congress and the President would also be arbiters of what was constitutional, and thus the Supreme Court would mainly rule on statutes.

    Instead, right away we found that the other two branches didn't care about whether what they did was legal or not, so SCOTUS had to step in and assume the role it has today. So no, it's not perfect, but it's the best we can do.

  4. #4
    Student francois60's Avatar
    Join Date
    Aug 2012
    Location
    Coral Springs, FL
    Last Seen
    02-12-15 @ 03:29 AM
    Gender
    Lean
    Libertarian
    Posts
    251

    Re: Supreme Court as the Ultimate Arbiter?

    BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

    There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.

  5. #5
    Global Moderator
    Moderator
    Anagram's Avatar
    Join Date
    Jun 2011
    Location
    St. Louis MO
    Last Seen
    Today @ 12:46 AM
    Gender
    Lean
    Slightly Conservative
    Posts
    6,190

    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by francois60 View Post
    BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

    There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.
    I'm concerned that would lead to even more incentive to pack the court with partisans rather than good justices.
    There should be Instant Runoff Voting

  6. #6
    Advisor aberrant85's Avatar
    Join Date
    Aug 2013
    Location
    SF Bay Area
    Last Seen
    10-04-15 @ 04:01 PM
    Gender
    Lean
    Liberal
    Posts
    594

    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Anagram View Post
    Of course today is really the first time I've thought in depth about this so I could be way off base here.
    I don't know how it was intended to work, besides the obvious: as part of the checks and balances built into our government. It now functions to determine whether or not laws that congress passes or lower court rulings are constitutional. Of course congress always has the power to amend the constitution with the states.

    This use for the Court depends entirely upon their objective analysis of the cases that come before them. You hit the nail on the head when you point out that the endless 5-4 rulings of late are entirely political, based on which seats were vacant under which presidents. The life-long tenures were supposed to isolate the justices from politics, but instead they have become simply an extension of past executive branch administrations that can persist for decades, ruling on cases far into the future based on ideologies carefully selected in another time. Both parties are now in an arms race to fill each vacancy that they can with like-minded justices, lest their successors do.

    I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.

    If not, then I think the lifetime tenures have to go.
    "Obamacare delenda est"

  7. #7
    Uncanny
    Paschendale's Avatar
    Join Date
    Nov 2010
    Location
    New York City
    Last Seen
    03-31-16 @ 04:08 PM
    Gender
    Lean
    Socialist
    Posts
    12,510

    Re: Supreme Court as the Ultimate Arbiter?

    If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional. The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress, and allow revisiting of older problems later down the line. That our court system, as a whole, is equipped to analyze whether or not a law is a valid is a great thing.
    Liberté. Égalité. Fraternité.

  8. #8
    Global Moderator
    Moderator
    Anagram's Avatar
    Join Date
    Jun 2011
    Location
    St. Louis MO
    Last Seen
    Today @ 12:46 AM
    Gender
    Lean
    Slightly Conservative
    Posts
    6,190

    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by Paschendale View Post
    If not the supreme court, then who? Certainly not congress. It would completely eradicate checks and balances to allow congress to declare its own laws constitutional.
    Well that's certainly the problem. I don't think the SCOTUS system is perfect, but I'm not sure if there's a better system out there. Congress certainly can't be expected to keep itself in check, I agree with you there.

    The supreme court's position as arbiters of constitutionality serve as an excellent balance against congress, and allow revisiting of older problems later down the line. That our court system, as a whole, is equipped to analyze whether or not a law is a valid is a great thing.
    It's a great thing we have judicial review, but I do think there are problems with it. It is possible to revisit older problems down the line, but it is a difficult process to do, and even more difficult to change decisions. And there is certainly a problem that the rulings of the SCOTUS in contentious cases pretty much depends on the presidencies that the justices were appointed during. If a few justices retire or die during a Republican's term the court becomes conservative for a very long time and vice versa. But again, these might just be problems we have to live with, because I can't think of a better system.
    There should be Instant Runoff Voting

  9. #9
    Global Moderator
    Moderator
    Anagram's Avatar
    Join Date
    Jun 2011
    Location
    St. Louis MO
    Last Seen
    Today @ 12:46 AM
    Gender
    Lean
    Slightly Conservative
    Posts
    6,190

    Re: Supreme Court as the Ultimate Arbiter?

    I've wondered, if the Supreme Court is meant to be the ultimate arbiter of what is constitutional, how about this: Deep Blue and Watson have mastered chess and Jeopardy. Would we be comfortable arguing Supreme Court cases before a supercomputer that could objectively give unbiased confirmation or rejection of a case's constitutionality? I'm not joking, that seems to be the only authentic way of determining the truth in these hyper-partisan times.
    I could be comfortable with that if our supercomputers ever become advanced enough. They're nowhere near there yet.
    There should be Instant Runoff Voting

  10. #10
    The Dude
    Kobie's Avatar
    Join Date
    Sep 2013
    Location
    Western NY
    Last Seen
    Yesterday @ 11:02 PM
    Gender
    Lean
    Liberal
    Posts
    42,890

    Re: Supreme Court as the Ultimate Arbiter?

    Quote Originally Posted by francois60 View Post
    BTW, one reform I can think of is criminal penalties for Congressmen who pass laws ruled unconstitutional, and for the President who signs them, as well as criminal penalties for executive actions that are ruled unconstitutional. Fines for laws struck down by slim margins, jail time for 9-0 smackdowns.

    There's no penalty for trying to get around the Constitution. Yet trying is a clear violation of their oaths of office.
    I don't think criminal penalties for simply being wrong is an answer.

    Anyone who says the Constitution isn't open to interpretation in many aspects is wrong. There's plenty of gray areas. Who determines the Constitutionality of a law that could potentially jail the passers of said law? Does everyone who voted for that law get arrested?

    This is a terrible idea.
    Freedom of speech is not freedom from criticism.

Page 1 of 8 123 ... LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •