Supreme Court - now Alito's court & legitimacy problem
Oct 17, 2022 22:46:23 GMT
mimima, mollycoddle, and 2 more like this
Post by aj2hall on Oct 17, 2022 22:46:23 GMT
Lots of interesting points and ideas for how to confront the court including some really common sense ones like a supermajority to interpret the constitution.
www.nytimes.com/2022/10/17/opinion/liberals-supreme-court-constitution.html
For American progressives, the Supreme Court has become a maddening institution. The comforting notion of the court as umpire lies in tatters. It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.
Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor with its own distinctive political incentives, internal divisions and weaknesses.
Congress can expand the court by adding new justices, and although term limits for justices would require a constitutional amendment, Congress could enact various proposals to restructure the court to allow for new justices to be appointed regularly, perhaps every two years.
It can also strip the federal judiciary of jurisdiction to overturn vital reforms. The Constitution gives Congress power to define and restrict what kinds of appeals the Supreme Court can accept and what kinds of cases the lower federal courts can hear. Congress uses this power today more often than one might expect: This year’s Inflation Reduction Act, for example, contained some modest provisions insulating certain administrative actions from judicial review.
Other tools deserve much more attention. Congress can delay jurisdiction, giving laws time to work — and become popular — before review is ripe. It can create politically unpalatable choices for the court through backup provisions that take effect if a law is struck down. None of these tactics will sit well with most Americans if they seem like nothing more than tit-for-tat politics. Progressives must also persuade a majority of Americans that the court is wrong about the Constitution — that it has the Constitution backward. The rights this court denies and the laws it strikes down are often ones the Constitution demands.
It is time for progressives to revive their traditions of constitutional politics and political economy so that, as Roosevelt put it, Americans can “save the Constitution from the court, and the court from itself.”
another opinion
www.nytimes.com/2022/10/14/opinion/supreme-court-reform.html?action=click&module=RelatedLinks&pgtype=Article
If Congress can regulate the appellate jurisdiction of the Supreme Court, then it can determine which cases it can hear, the criteria for choosing those cases and even the basis on which the court can make a constitutional determination.
Congress could say, for instance, that the court needs more than a bare majority to overturn a federal statute. Even if you agree that the court has the mostly exclusive right to interpret the Constitution, it doesn’t therefore follow that five justices can essentially nullify the constitutional views of the legislators who passed a law, the president who signed it and the four other justices who affirmed it. Constitutional meaning, in other words, flows as much from the elected branches (and the people themselves) as it does from courts and legal elites.
www.nytimes.com/2022/10/17/opinion/liberals-supreme-court-constitution.html
For American progressives, the Supreme Court has become a maddening institution. The comforting notion of the court as umpire lies in tatters. It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.
Instead of trying to legislate within the lines of Supreme Court case law — lines that might be redrawn tomorrow — liberal lawmakers should view the court primarily as a hostile political actor with its own distinctive political incentives, internal divisions and weaknesses.
Congress can expand the court by adding new justices, and although term limits for justices would require a constitutional amendment, Congress could enact various proposals to restructure the court to allow for new justices to be appointed regularly, perhaps every two years.
It can also strip the federal judiciary of jurisdiction to overturn vital reforms. The Constitution gives Congress power to define and restrict what kinds of appeals the Supreme Court can accept and what kinds of cases the lower federal courts can hear. Congress uses this power today more often than one might expect: This year’s Inflation Reduction Act, for example, contained some modest provisions insulating certain administrative actions from judicial review.
Other tools deserve much more attention. Congress can delay jurisdiction, giving laws time to work — and become popular — before review is ripe. It can create politically unpalatable choices for the court through backup provisions that take effect if a law is struck down. None of these tactics will sit well with most Americans if they seem like nothing more than tit-for-tat politics. Progressives must also persuade a majority of Americans that the court is wrong about the Constitution — that it has the Constitution backward. The rights this court denies and the laws it strikes down are often ones the Constitution demands.
It is time for progressives to revive their traditions of constitutional politics and political economy so that, as Roosevelt put it, Americans can “save the Constitution from the court, and the court from itself.”
another opinion
www.nytimes.com/2022/10/14/opinion/supreme-court-reform.html?action=click&module=RelatedLinks&pgtype=Article
If Congress can regulate the appellate jurisdiction of the Supreme Court, then it can determine which cases it can hear, the criteria for choosing those cases and even the basis on which the court can make a constitutional determination.
Congress could say, for instance, that the court needs more than a bare majority to overturn a federal statute. Even if you agree that the court has the mostly exclusive right to interpret the Constitution, it doesn’t therefore follow that five justices can essentially nullify the constitutional views of the legislators who passed a law, the president who signed it and the four other justices who affirmed it. Constitutional meaning, in other words, flows as much from the elected branches (and the people themselves) as it does from courts and legal elites.
