The Supreme Court is a peculiar institution in America. It is not mentioned in the Constitution and its members are not elected, yet it has grown to be one of the most powerful government institutions.
The power of the Supreme Court mushroomed under John Marshall’s time as chief justice. In the case of Marbury v. Madison, he established judicial review, the right of the court to rule state and federal laws unconstitutional. His main motivation? To keep the Supreme Court out of a nasty political fight and preserve its power.
Anyways, the Court has used this power to gain leverage over the other two branches of government and to, effectively, legislate from the bench, including historic cases such as the Dred Scott case, Brown v. Board, and Roe v. Wade, which have had resounding impacts on American culture and society, some good and some bad.
This legislative power has drawn many interest groups to use the Court as a means of bypassing the democratic process of Congressional legislation, which has dire implications for democratic society as a whole. When the unelected judiciary is seen as a better way to effect change than the elected Congress, it leads to a degradation of society’s view of the democratic process, which has the capacity to lead to tyranny.
Now, in the right hands, judicial review can be used to bring about good things, and if its use is restricted, it can help balance the government. Therefore, I propose that Congress pass a law, or even a Constitutional amendment, that restricts the Supreme Court’s use of judicial review to cases that specifically challenge a state or federal law as unconstitutional , and have no other request of the court.
This would also weaken the power of precedent, which effectively can doom all future suits to reverse a decision. How? The restriction of judicial review would weaken the strength of judicial decisions, which would in turn mean that lower courts would be more willing to use their own judgment.
Of course, the key component to restricting judicial tyranny is strict constructionism, or judging cases by the letter of the law, which reduces the role of judges’ personal opinions in their decisions. Judges should judge merely by the law, not their personal feelings, but this would be all but impossible to legislate, so we’ll have to leave it to the judges’ consciences.
Basically, as the saying goes, “everything in moderation.”
Please delete one copy of this; it posted twice. Just click the edit tab, scroll down and delete. If it won't cooperate, let me know and I will do so.
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Soar high and laugh on the wind
~Fallon~
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Double Posted
The Supreme Court is mentioned in the Constitution in article III.
"Article III. - The Judicial Branch Note
Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3 - Treason Note
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."
The problem with it is that it is very vague. It doesn't really say what the Supreme Court is supposed to do at all except that it has jurisdiction over certain kinds of cases.
"A casual stroll through the lunatic asylum shows that faith does not prove anything."
Friedrich Nietzsche
Yeah, sorry about that. Slip of the "tongue."
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end had become the end itself." - Clarence Thomas
Supreme court not in the constitution???!?!!?! Come on don't be ridiculous, it is one of our branches of government, unlike trees these things didn't just come out of nowhere. And to be honest the supreme court is probably one of the last good things about the american political system. It shouldn't have elected officals and they shouldn't have term limits. The supreme court is built of men who have worked their entire lives judging crimes and is not based on name recognition or money. We have a lot of work to do before we should ever worry about the court.
Nothing is True, Everything is Permitted
Sorry. As I said to Jsaj, it was a slip of the "tongue."
By the way, the Supreme Court is not one of the branches of the government. The Jduiciary is, but not the Supreme Court in and of itself.
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end had become the end itself." - Clarence Thomas
The only problem here is who would identify which cases are appropriate for judicial review? It's not all that black and white, even though it may sound that way. Some people may say that Roe v. Wade challenged the Constitution while others may disagree. It's all about perspective; so who would make the final determination as to which cases? I don't think making these decisions the responsibility of judges who are appointed and not elected is appropriate - it takes the matter out of the hands of the voting public and into the hands of those who don't necessarily have to answer to citizens. Judges don't have the same connection to the public as members of Congress. Just an observation.
Actually, it wouldn't be that hard. If a case were filed with the stated intent to challenge a law as unconstitutional and did not have any other complaints, requests, or charges, then it would be appropiate for judicial review. It is that black and white. A case would not be appropiate for judicial review if it implied a challenge or the like. The reason why it would have to be specifically stated would be to remove the gray area.
"A government big enough to give you everything you want is big enough to take everything you have." - Barry Goldwater
"... the ostensible means [diversity] of acheiving a desired end had become the end itself." - Clarence Thomas