In 1982 a DOJ attorney wrote a series of memos advocating the position that Article 3 of the Constitution gives the Supreme Court jurisdiction over constitutional issues with "such Exceptions, and under such Regulations as the Congress shall make." Simply put, Congress could enact laws and include a clause exempting that law from Court review — not just the Supremes, but all federal courts.
Motivation behind the memos was advocacy of a position that Congress should pass laws, e.g. banning abortion or mandating school prayer, and bar the Courts from jurisdiction over that law and therefore prevent "travesties" like Roe v Wade. The same argument has been resurrected the past year by the Democratic left only this time the laws that would be protected would be things like Obamacare or a Green New Deal. The author of the memos: Chief Justice John Roberts. davew On Tue, Oct 13, 2020, at 10:43 AM, uǝlƃ ↙↙↙ wrote: > I've forgotten what venue it was. But someone made the argument that > elsewhere (other countries), courts don't have the power to strike down > entire laws, and that extensive power is not inherent in our laws, > either ... that it was somehow more convention than written in stone. > They made the argument that John Roberts understands this, and > understands that if the populace begins to reject the legitimacy of > SCOTUS decisions, a flood of techniques could be used to degrade the > courts' authority (much like the trends in the "unitary executive" have > degraded Congress' authority). > > It seems like that argument is relevant to at least one of your questions. > > For me, until Kavanaugh, I'd never really realized how political the > SCOTUS actually is [⛧]. The membership is pretty much locked down by > the Senate. And the Senate is the rural/right bastion, the core > representation problem. We complain a lot about the electoral college. > But it's the structure of the Senate that's the real problem for > progressivism. So, for me, they've lost all patina of "objectivity" at > this point. They're as vapidly political/partisan as the House. We may > as well admit this loss of credibility and find a way to "harden" it > against abuse. Of course, the Rs don't "govern". So we're left in the > unfortunate position of relying on the Ds to do it, if it'll be done at > all. > > > [⛧] Yes, I know. All the signs were there my entire life. What can I > say? I'm a moron. It took a Frat boy being confirmed to make me realize > it. > > On 10/13/20 9:18 AM, Russ Abbott wrote: > > Amy Coney Barrett said that judges should stick to legal issues and leave > > policymaking to legislatures. > > > > "A judge must apply the law as written, not as the judge wishes it were. > > Sometimes that approach meant reaching results he does not like. 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," > > > > Let's assume she is intellectually honest and will do her best to live by > > this distinction. Do you think that's possible? How would you draw a line > > between legal issues and policy decisions? How could a court refuse to deal > > with cases that seem to require them to make policy decisions? Do you think > > a framework for courts could be established along these lines that would > > widely accepted? > > > -- > ↙↙↙ uǝlƃ > > - .... . -..-. . -. -.. -..-. .. ... -..-. .... . .-. . > FRIAM Applied Complexity Group listserv > Zoom Fridays 9:30a-12p Mtn GMT-6 bit.ly/virtualfriam > un/subscribe http://redfish.com/mailman/listinfo/friam_redfish.com > archives: http://friam.471366.n2.nabble.com/ > FRIAM-COMIC http://friam-comic.blogspot.com/ > - .... . -..-. . -. -.. -..-. .. ... -..-. .... . .-. . FRIAM Applied Complexity Group listserv Zoom Fridays 9:30a-12p Mtn GMT-6 bit.ly/virtualfriam un/subscribe http://redfish.com/mailman/listinfo/friam_redfish.com archives: http://friam.471366.n2.nabble.com/ FRIAM-COMIC http://friam-comic.blogspot.com/
