It is a common thought that all is lost when SCOTUS makes its decisions for they have the final word.
Is that necessarily true?
When the Supreme Court was holding oral arguments last December in the case that brought about the end of Roe v. Wade, Justice Sonia Sotomayor addressed the familiar argument that the Constitution doesn’t mention a right to privacy. That fact was a central argument in the court’s majority opinion issued last month, per NPR. But there’s a lot that’s not mentioned in the Constitution, the justice said. In fact, “there is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means,” Sotomayor pointed out. “And yet, she added, “what the Court did was reason from the structure of the Constitution that that’s what was intended.”
The justice might have been mostly intending to say that rights, including the one to privacy, can exist without being clearly stated in the Constitution, but Joshua Zeitz writes in an opinion piece in Politico that the power of judicial review is in the same boat. “Both exist by strong implication,” he says. Mostly, the court claimed that right for itself. Some framers did expect the Supreme Court, as well as lower federal courts, to exercise a veto on constitutional grounds over congressional and state acts, Zeitz writes. “But they did not intend this power to be unchecked or unlimited,” he says.
The Constitution is all about checks and balances, and the other branches could move to limit the judiciary just as the courts limit the activities of the others. The Constitution didn’t even design the court system, it left it to the other branches. So they can take steps to restrict the court on certain issues, Zeitz points out. Congress could pass a law denying the court authority over a new voting rights act, for example. “Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary,” Zeitz writes.
You can read the full piece here.
I have my doubts about this pronouncement…..why?
The US Congress is a toothless tiger. It is so wrapped up in the mundane crap trying to find a consensus (at least one party is)….nothing will be done for SCOTUS is about political agenda and not what is best for this nation.
And of course there are opinions on how to ‘fix’ the Supreme Court….here are a few (my thoughts later)…..
The Supreme Court’s just-concluded term was a bacchanalia of reactionary indulgence. Roe v. Wade is dead. Gun laws throughout the nation are now in peril. The Court is pummeling the wall separating church and state — and it isn’t afraid to tell easily disprovable falsehoods to achieve this goal. The Court’s GOP-appointed majority curtailed the EPA’s power to fight climate change, and gave themselves an open-ended veto power over any federal regulation.
It’s likely that the worst is yet to come. Three “shadow docket” decisions this past term suggest that the Court is about to slash safeguards against racial gerrymandering. Another case looming in the next term, involving North Carolina’s gerrymandered congressional maps, is likely to give Republican state legislatures the power to defy their state constitution when writing election laws. And that’s after the Court has spent the last decade dismantling the Voting Rights Act and stripping the federal courts of any authority to fight partisan gerrymanders.
The Court’s Republican majority isn’t simply handing down bold conservative policy decrees, it is undermining democracy itself.
But just because court reform isn’t currently politically viable doesn’t mean it’s not worth considering, especially if Democrats somehow manage to pick up larger majorities in a future Congress. There are several options to deal with an increasingly partisan Supreme Court. Here are 10 of them.
My thoughts on these ‘solutions’…..
Court packing is not viable….not in this political climate.
The Supreme Court lottery….now I can get behind this ‘solution’….
The most talked about ‘solution’ is term limits….another one that I agree with….as long as the Congress limits are included.
Omnibus legislation to overrule the court decisions…..again a good idea but the political climate these days will prevent anything like this idea to see the light of day.
SCOTUS needs reforming and some ideas are good……but as long as the court is run by political hacks all we can do is wish and hope and witness the death of the republic.
Any ideas you would like to share?
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