Constitutional laws (split from Ruth Bader Ginsburg)

[dimreepr]

Interpretation's a bitch, right?

Edit, cross posted.

Edited October 11, 2020 by dimreepr

[J.C.MacSwell]

29 minutes ago, swansont said:

The court that decided in favor of Roe was right-leaning. The GOP plan is to pack the court with judges willing to ignore precedent and apply personal, religious views. IOW, not decide on the merits.

Personal views can have merit and not agree with precedent. For examples, compare with some gun laws.

Or laws depriving people of their right to vote.

Edited October 11, 2020 by J.C.MacSwell
correcting grammatical error ;)

[dimreepr]

12 minutes ago, J.C.MacSwell said:

Personal views can have merit and not agree with precedent. For examples, compare with some gun laws.

Imagine that. 😄

[MigL]

47 minutes ago, swansont said:

The GOP plan is to pack the court with judges willing to ignore precedent and apply personal, religious views. IOW, not decide on the merits.

Again, this is not about the merits of the decision, rather, about who makes it.

If the American people want abortion rights, put it into law.
The 'Constitutionaity' is decided by the electorate.
It should NOT be decided by unelected, unaccountable judges.

[MSC]

1 hour ago, swansont said:

The court that decided in favor of Roe was right-leaning

They would probably be called RINO by todays MAGA Republicans. 😕

19 minutes ago, MigL said:

Again, this is not about the merits of the decision, rather, about who makes it.

If the American people want abortion rights, put it into law.
The 'Constitutionaity' is decided by the electorate.
It should NOT be decided by unelected, unaccountable judges.

Would you have preference toward doing away with the supreme court or having any ruling made by the supreme court followed by a public referendum on the verdict?

[J.C.MacSwell]

27 minutes ago, MigL said:

Again, this is not about the merits of the decision, rather, about who makes it.

If the American people want abortion rights, put it into law.
The 'Constitutionaity' is decided by the electorate.
It should NOT be decided by unelected, unaccountable judges.

I agree with the sentiment but what do they do in the mean time? Who gets to interpret the gray areas of current, laws as written, precedent, publicly accepted moral views, etc.? Who interprets the same after the new laws are put in place?

[zapatos]

1 hour ago, MigL said:

The 'Constitutionaity' is decided by the electorate.

Only if they change the Constitution. Otherwise the Supreme Court decides the Constitutionality.

In general I find SCOTUS to be apolitical. Just because a judge tends to vote 'liberal' or 'conservative' doesn't mean they are influenced by politics. They were appointed because they tended to hold the views preferred by who appointed them so we should expect them to tend to vote a certain way. It seems to me they are only 'political' if they allow politicians to influence their vote after they are appointed. I don't see that happening.

Edited October 11, 2020 by zapatos

[swansont]

3 hours ago, J.C.MacSwell said:

Personal views can have merit and not agree with precedent. For examples, compare with some gun laws.

Or laws depriving people of their right to vote.

The issue is constitutionality, though. A judge is not supposed to replace that judgement with personal views. In fact, they take an oath to that effect.

3 hours ago, MigL said:

Again, this is not about the merits of the decision, rather, about who makes it.

If the American people want abortion rights, put it into law.
The 'Constitutionaity' is decided by the electorate.
It should NOT be decided by unelected, unaccountable judges.

Rights are inherent, and some are enumerated in the Constitution. Laws ≠ rights 

The electorate does not decide constitutionality. They do have input on what is in the Constitution.

What you might want is not necessarily what the situation actually is. 

2 hours ago, MSC said:

They would probably be called RINO by todays MAGA Republicans. 😕

Which highlights the change in the GOP

[J.C.MacSwell]

11 minutes ago, swansont said:

The issue is constitutionality, though. A judge is not supposed to replace that judgement with personal views. In fact, they take an oath to that effect.

Isn't merit subjective? How can they operate and rule on what has it without incorporating their own viewpoint?

[swansont]

4 minutes ago, J.C.MacSwell said:

Isn't merit subjective? How can they operate and rule on what has it without incorporating their own viewpoint?

They can interpret the constitution in various ways. What they aren’t supposed to do is a substitution. 

[MSC]

38 minutes ago, swansont said:

Which highlights the change in the GOP

Yep. It's getting to the point where calling them the GOP seems wrong. LNP, Lame New Party

[J.C.MacSwell]

3 hours ago, swansont said:

They can interpret the constitution in various ways. What they aren’t supposed to do is a substitution. 

A. C. Barrett seems to agree with that:

https://thehill.com/homenews/senate/520531-amy-coney-barrett-to-tell-senators-courts-should-not-try-to-make-policy

"Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try," Barrett will add, according to her opening remarks.

Edited October 11, 2020 by J.C.MacSwell

[CharonY]

One thing to add: the various constitutions are also historic documents and therefore generally do not address issues that a constitution written in this time might have included. Often, they try to provide universal guidance outlining what folks thought to be fundamental. However, the fact that older constitutions have been amended over the years clearly show that this is not the case. The obvious issue with determining constitutionality via plebiscite is that it undermines the idea of having certain rights that should not be easily overridden. Otherwise folks might get the idea to decide that killing a person is not a good idea unless they are called, say, Dave.

 

[MigL]

I never had any use for anyone called Dave  .
Also, people who part their hair on the left.
And mustaches …
( especially on women )

Edited October 13, 2020 by MigL

[Orion1]

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How effective has this been? - MSC

As of 2018, the Supreme Court had overruled more than 300 of its own cases. (ref. 1)

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Does this mean the only legal mandate is to balance the courts? - MSC

Negative, there are no legal mandates to "balance the courts" by partisan boundaries. There are only three legal mandates, one mandate is an Act, one mandate is a congressional statute, and the other mandate is a constitutional article.

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The Judiciary Act of 1869 specified that the Supreme Court shall consist of nine justices: one Chief Justice, and eight Associate Justices. By law, any vacancies on the Court must therefore be filled. The relevant language of the 1869 act, specifying the size of the court, was codified as 28 U.S.C. § 1.

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28 U.S.C. § 1:

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

Quote

The United States Constitution, Article II, Section 2, Clause 2 establishes the overall legal requirement of presidential nomination, together with Senatorial confirmation, of Supreme Court justices, which this chart details. Clause 3 provides the president the power of recess appointment, when the Senate is officially in recess. (ref. 2, 4)

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Can the number of justices be legally reduced to create an even split? - MSC

By "even split", I presume you mean an even partisan (a strong supporter of a party, cause, or person; prejudiced in favor of a particular cause) boundary for the total number of justices.

It is constitutionally possible, though improbable based upon the partisan affiliation of the nominating president. Although nominating Supreme Court justices based upon suspected partisan affiliation is in my opinion, constitutionally repugnant due to the "apolitical" constitutional design for judicial selection.

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This would give justices more incentive to work together and compromise to find more collaborative interpretation more as a judicial entity as opposed to individual or partisan identity? - MSC

In my opinion it would have the opposite effect of splitting the court down partisan lines and decide cases more on partisan politics than on case precedent merits.

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Does this apply to legislative acts that impact the structure of the judiciary? - MSC

Only if the federal district courts or the Supreme Court ruled that the legislative acts that constructed the judiciary structure were illegal or unconstitutional (not in accordance with a political constitution, especially the United States Constitution, or with procedural rules).

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Could a majority of justices block the addition of a new justice office? - MSC

Affirmative, if the Supreme Court ruled that the addition of a new justice office was illegal by Act, statute or unconstitutional by established boundaries or with procedural rules.

For example, a majority of congressional partisans wanted to "stack" the court with more than nine justices, without a presidential nomination and based upon suspected partisan affiliation for generating judicial bias for political gain regarding any existent de jure (by Right; according to law) legal precedent, in violation of the Judiciary Act of 1869 and Title 28 U.S.C. § 1 and the United States Constitution, Article II, Section 2, Clause 2.

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What sort of senate majority would a government need to alter the judiciary branch? U.S. specifically. - MSC

Constitutionally, the alteration of the judiciary branch of government requires a Act of Congress, which creates a law, or modifies an existing law, with a simple majority of both the House of Representatives, and the Senate. (> = 51%), (51 of 100).

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An Act of Congress is a statute enacted by Congress. Acts can affect only individual entities (called private laws), or the general public (public laws). For a bill to become an act, the text must pass through both houses with a majority, then be either signed into law by the president of the United States or receive congressional override against a presidential veto. (ref. 5)

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Laws begin as ideas. First, a representative sponsors a bill. The bill is then assigned to a committee for study. If released by the committee, the bill is put on a calendar to be voted on, debated or amended. If the bill passes by simple majority (218 of 435), the bill moves to the Senate. In the Senate, the bill is assigned to another committee and, if released, debated and voted on. Again, a simple majority (51 of 100) passes the bill. Finally, a conference committee made of House and Senate members works out any differences between the House and Senate versions of the bill. The resulting bill returns to the House and Senate for final approval. The Government Printing Office prints the revised bill in a process called enrolling. The President has 10 days to sign or veto the enrolled bill. (ref. 6)

However, if the structural judiciary branch of government is already bounded within the constitution and therefore requires a modification or constitutional amendment, then to become an operative part of the United States Constitution, an amendment, whether proposed by Congress or a national constitutional convention, must be ratified by either:

The legislatures of three-fourths (> = 75%) (at present 38) of the states; or State ratifying conventions in three-fourths (> = 75%) (at present 38) of the states. (ref. 6)

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The number of Justices on the SCOTUS is both arbitrary and unconstrained. - iNow

Negative, the court has evolved to the nine members only by congressional Acts and statute, a constitutional power and boundary entrusted only to Congress.

Article III of the United States Constitution sets neither the size of the Supreme Court nor any specific positions on it, though the existence of the office of the chief justice is tacitly acknowledged in Article I, Section 3, Clause 6. Instead, these powers are entrusted to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through the Judiciary Act of 1789.

The Judiciary Act of 1869 also called the Circuit Judges Act, and Title 28 U.S.C. § 1, returned the number of justices to nine, where it has since remained. (ref. 3, 4)

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In 1789, the SCOTUS had 6 Justices. Then in 1807 there were 7 Justices. Then in 1837 the number bumped up to 9, and in 1863 there were 10 Justices. - iNow

Year - justice number, Congressional Act:
1789 - 6, Judiciary Act of 1789
1807 - 7, Seventh Circuit Act of 1807
1837 - 9, Eighth and Ninth Circuits Act of 1837
1863 - 10, Tenth Circuit Act of 1863
1866 - 9, Judicial Circuits Act of 1866 
1869 - 9, Judiciary Act of 1869
1948 - 9, Title 28 U.S.C. § 1
2020 - 9, remained.

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...Justice who was nominated by an impeached president who lost the popular vote by 3 MILLION votes. - iNow

U.S. Citizens do not have the Right to vote for a president, registered voters only have the constitutional Right to vote for an elector, under the United States Constitution Twelfth Amendment. (ref. 7)

When people cast their vote, they are not actually voting for president, but for a group of people called electors. The number of electors each state gets is equal to its total number of Senators and Representatives in Congress. A total of 538 electors form the Electoral College. Each elector casts one vote following the general election.

Only an elector has the constitutional Right to vote for a president. (ref. 7)

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Only if they change the Constitution. Otherwise the Supreme Court decides the Constitutionality. - zapatos

In the United States, federal and state courts at all levels, both appellate and trial are able to review and declare the "constitutionality", or agreement with the Constitution, or unconstitutionality of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803. (ref. 8)

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Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that they find to violate the Constitution of the United States. (ref. 9)

Reference:
Wikipedia - SCOTUS overruled decisions: (ref. 1)
https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions

Wikipedia - SCOTUS Nomination, confirmation, and appointment: (ref. 2)
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Nomination,_confirmation,_and_appointment

Wikipedia - SCOTUS size: (ref. 3)
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Size_of_the_court

Cornell University - 28 U.S.C. § 1: (ref. 4)
https://www.law.cornell.edu/uscode/text/28/1

Wikipedia - Act of Congress: (ref. 5)
https://en.wikipedia.org/wiki/Act_of_Congress

Wikipedia - United States constitutional amendment - federal constitution: (ref. 6)
https://en.wikipedia.org/wiki/Constitutional_amendment#Federal_constitution

Wikipedia - United States Constitution - Twelfth Amendment: (ref. 7)
https://en.wikipedia.org/wiki/Twelfth_Amendment_to_the_United_States_Constitution

Wikipedia - United States - Judicial Review: (ref. 8)
https://en.wikipedia.org/wiki/Judicial_review#Review_by_general_courts

Wikipedia - United States - Marbury v. Madison (1803): (ref. 9)
https://en.wikipedia.org/wiki/Marbury_v._Madison
 

Edited October 25, 2020 by Orion1
source code correction...

[iNow]

3 hours ago, Orion1 said:

However, if the structural judiciary branch of government is already bounded within the constitution and therefore requires a modification or constitutional amendment,

But it’s not, which makes so many of your comments moot

3 hours ago, Orion1 said:

the court has evolved to the nine members only by congressional Acts and statute

This is presented in a manner suggesting it rebuts my point, when in fact it only confirms it. 

3 hours ago, Orion1 said:

When people cast their vote, they are not actually voting for president, but for a group of people called electors

True, already understood by me, and also completely irrelevant to the topic under discussion.