Supreme Court and Public Opinion

[Osborne Russell]

Re: Supreme Court and Public Opinion

Turns out they actually DO care. At least some small particle of caring. While there are no formal strictures that force them to care... they do think a bit about their 'legacy'. Enough that I'll now start lobbing opinions and kudos and critique at them.

Judge-made law is an evolving thing. Judges listen to arguments. The arguments are made by the parties. If the court bases its decision on the public clamor, it would mean they were ruling on the basis of arguments that the parties did not have the opportunity to contest in court. That would be a denial of due process.

I guess you didn't read the article.

I did read the article. It doesn't say what you think it does. What it does say is worse than useless.

Who stands to gain by attacking the legitimacy of the Court? Putin, Trump, Orban, the Chinese Communist Party, North Korea, right wing militias, etc. This is the list you want to be on? Now Blues want to join the attack, believing they can achieve something of which they're not quite sure, by some means which they cannot state. Still they are confident that the cost will justify the benefit.

From the article:

So the question is not whether Congress has the power to act, but what a meaningful ethics regime should look like

Wrong. The question is, precisely, does Congress have the power to act? How else could a "regime" be established?

"Last and most difficult is the matter of enforcement. Even well-designed rules will not matter if the justices know that they will face no consequences for ignoring them."

Wrong. It's the *first* question, and if one has no answer, none of the rest is worth Jack, one is wasting everyone's time, accomplishing nothing . . . but the furtherance of one's own ignorant attack upon the legitimacy of the Court.

Then the fall-back position: what's the big deal, except, uh, it is a big deal, but gosh darn it, aren't we entitled to a few small things?

Still, adopting these proposed elements . . . would provide a constant reminder . . . would help foster a culture of accountability . . . it would also send the message . .

This is your conception of government? Reminders, culture, messages? You're talking about the separation of powers. The federal judiciary wields the sovereignty of the people.

For this reason, the justices should not simply tolerate being held to a strong code of ethics . . .

Held by whom, pursuant to what Constitutional power?

Whether Congress orders the court to draft such a code or imposes one itself, the point is the same . . .

Uh . . . for the same reasons, why shouldn't the Court "draft such a code" and impose it on the legislature? Why shouldn't the executive impose "codes" on the judiciary and the legislature?

[David G]

Re: Supreme Court and Public Opinion

Judge-made law is an evolving thing. Judges listen to arguments. The arguments are made by the parties. If the court bases its decision on the public clamor, it would mean they were ruling on the basis of arguments that the parties did not have the opportunity to contest in court. That would be a denial of due process.

Do you not even see it when you draw in a StrawMan argument? I didn't say... the article didn't say... that SCOTUS is, or should be, ruled by 'public clamor'. It said that they do take some small notice of public opinion. I'd call that a good thing.

I did read the article. It doesn't say what you think it does. What it does say is worse than useless.

Who stands to gain by attacking the legitimacy of the Court? Putin, Trump, Orban, the Chinese Communist Party, North Korea, right wing militias, etc. This is the list you want to be on? Now Blues want to join the attack, believing they can achieve something of which they're not quite sure, by some means which they cannot state. Still they are confident that the cost will justify the benefit.

Blues don't want to attack the legitimacy of the court. They want to take notice that the court has been compromised by too many years of planned, deliberate, Federalist Society meddling... and want to come up with measures to counteract that corruption.

From the article:



Wrong. The question is, precisely, does Congress have the power to act? How else could a "regime" be established?



Wrong. It's the *first* question, and if one has no answer, none of the rest is worth Jack, one is wasting everyone's time, accomplishing nothing . . . but the furtherance of one's own ignorant attack upon the legitimacy of the Court.

Then the fall-back position: what's the big deal, except, uh, it is a big deal, but gosh darn it, aren't we entitled to a few small things?



This is your conception of government? Reminders, culture, messages? You're talking about the separation of powers. The federal judiciary wields the sovereignty of the people.



Held by whom, pursuant to what Constitutional power?



Uh . . . for the same reasons, why shouldn't the Court "draft such a code" and impose it on the legislature? Why shouldn't the executive impose "codes" on the judiciary and the legislature?

More bombast and misrepresentation. Please stop. I ain't buying it, and it just wastes time in the debunking.

I'm sympathetic, however, to your 'separation of powers' argument. I don't know enough yet to state that the legislative branch can legitimately impose ethics standards on the judicial. It is in their purview though, it seems, to adjust the size of the court. Which may be the leverage they need to get the court to impose their own standards, and enforcement with teeth to back them up.

[Osborne Russell]

Re: Supreme Court and Public Opinion

More bombast and misrepresentation. Please stop. I ain't buying it, and it just wastes time in the debunking.

What misrepresentation?

I'm sympathetic, however, to your 'separation of powers' argument. I don't know enough yet to state that the legislative branch can legitimately impose ethics standards on the judicial. It is in their purview though, it seems, to adjust the size of the court. Which may be the leverage they need to get the court to impose their own standards, and enforcement with teeth to back them up.

Sure. Just remind them, you'll soon face re-election, so, start talking about meddling with the court early, it will be be a tough nut to crack. And it goes without saying that it will unleash a S storm. You'll be betting all your chips.

AFAIK, the Court itself has no power to discipline the Justices. So they "impose" standards on Justice X. He tells them to get bent. He was nominated by the President and confirmed by the Senate. The check is impeachment. Go for it. I call your bluff.

Then what?

While waiting we will be entertained by frivolous journalists. Funny, they didn't attack the legitimacy of the Supreme Court when Roe v. Wade was handed down. They only do it now, when it has been over-ruled. True or false?

p.s. we have to thank the people who urged everyone not to vote for Hillary because "both sides are the same." This is one result.

[Nicholas Carey]

Supreme Court and Public Opinion

I'm sympathetic, however, to your 'separation of powers' argument. I don't know enough yet to state that the legislative branch can legitimately impose ethics standards on the judicial. It is in their purview though, it seems, to adjust the size of the court. Which may be the leverage they need to get the court to impose their own standards, and enforcement with teeth to back them up.

The Congress defines the size of the Supreme Court. It can both restrict its jurisdiction and regulate it.

Article III, section 2, para. 2 says:

https://www.law.cornell.edu/constitution/articleiii

"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 Congress most certainly has the power to issue regulations regarding when justices must recuse themselves. Or simply mandate that if a single justice appears conflicted WRT a case, the court has no jurisdiction over that case (an exception, and kind of the nuclear option).

And no, the Supreme Court doesn't get to weigh in on the Congress's regulation of it -- that power to regulate is one of the checks and balances baked into our tripartite government.

The only thing the Congress can't do, barring an amendment to the Constitution, is do away with life tenure for the justices.

[David G]

Re: Supreme Court and Public Opinion

The Congress defines the size of the Supreme Court. It can both restrict its jurisdiction and regulate it.

Article III, section 2, para. 2 says:

https://www.law.cornell.edu/constitution/articleiii

"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 Congress most certainly has the power to issue regulations regarding when justices must recuse themselves. Or simply mandate that if a single justice appears conflicted WRT a case, the court has no jurisdiction over that case (an exception, and kind of the nuclear option).

And no, the Supreme Court doesn't get to weigh in on the Congress's regulation of it -- that power to regulate is one of the checks and balances baked into our tripartite government.

The only thing the Congress can't do, barring an amendment to the Constitution, is do away with life tenure for the justices.

Thanks for the clarification.

[Osborne Russell]

Re: Supreme Court and Public Opinion

The Congress defines the size of the Supreme Court. It can both restrict its jurisdiction and regulate it.

Article III, section 2, para. 2 says:

https://www.law.cornell.edu/constitution/articleiii

"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 Congress most certainly has the power to issue regulations regarding when justices must recuse themselves. Or simply mandate that if a single justice appears conflicted WRT a case, the court has no jurisdiction over that case (an exception, and kind of the nuclear option).

Yeah but who decides, and enforces, how, by what authority? Congress issues regulations, and for their violation . . . what? They mandate, and by mandating, they restrict jurisdiction . . . suppose the Court proceeds anyway? Is the Court's decision -- including the issue of jurisdiction -- the law?

And no, the Supreme Court doesn't get to weigh in on the Congress's regulation of it -- that power to regulate is one of the checks and balances baked into our tripartite government.

The Constitution is the law; the power to state what the law is, is emphatically the province of the judicial department. If they say the power of the Congress doesn't reach as far as Congress says, which is the final authority?

[Osborne Russell]

Re: Supreme Court and Public Opinion

Is pretty much anything of value. They are, to quote a famous attorney, "incompetent, irrelevant, and immaterial".

Let's all make steel in pots in the forecourts and accomplish the Great Leap Forward. That would be something. On to Marxism!

[Nicholas Carey]

Yeah but who decides, and enforces, how, by what authority? Congress issues regulations, and for their violation . . . what? They mandate, and by mandating, they restrict jurisdiction . . . suppose the Court proceeds anyway? Is the Court's decision -- including the issue of jurisdiction -- the law?

The Congress can attach criminal penalties to their exceptions and regulations. Supreme Court justices, like the President, have no immunity.

Members of the Congress have no immunity either. They are merely privileged from [physical] arrest [from many crimes]: Art. I, section 6 provides that "they shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same."

[Hence the reason so many members of Congress have been prosecuted and convicted, even if they can't be physically arrested.]

As far as violations go, the Congress can impeach and remove from office justices who violate said regulations. The President can have them arrested, jailed, and prosecuted for violating the Congress' laws.

No man (or woman) stands above the law in this country. Not the President, not members of Congress, and not justices of the Supreme Court.

The Constitution is the law; the power to state what the law is, is emphatically the province of the judicial department. If they say the power of the Congress doesn't reach as far as Congress says, which is the final authority?

Long-standing precedent (more than a few centuries, even) in the Common Law: one does not get to judge oneself.

And, as President Andrew Jackson famously put it: the Court has rendered its opinion: let them now enforce it.

You seem very committed to the idea, black-letter law to the contrary, that the Supreme Court is the sole branch of government that is unconstrained (and is unconstrainable) by either of the other two branches, and indeed, has unlimited veto power over both of the other two.

That is contrary to the intent of the people that wrote the Constitution.

[John Smith]

Re: Supreme Court and Public Opinion

Thanks for the clarification.

This congress isn't going to react to Supreme court's decisions.

The question, IMO, is if the voters react. Decisions made by this court MAY help elect a lot of democrats.

[John Smith]

Re: Supreme Court and Public Opinion

Yeah but who decides, and enforces, how, by what authority? Congress issues regulations, and for their violation . . . what? They mandate, and by mandating, they restrict jurisdiction . . . suppose the Court proceeds anyway? Is the Court's decision -- including the issue of jurisdiction -- the law?



The Constitution is the law; the power to state what the law is, is emphatically the province of the judicial department. If they say the power of the Congress doesn't reach as far as Congress says, which is the final authority?

Who is the final arbiter of what the constitution says/means?

[Breakaway]

Who is the final arbiter of what the constitution says/means?

There is no final arbiter.

The Supreme Court decides what is constitutional for specific issues in the here and now.

Kevin


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[John Smith]

Re: Supreme Court and Public Opinion

There is no final arbiter.

The Supreme Court decides what is constitutional for specific issues in the here and now.

Kevin


Sent from my iPhone using Tapatalk Pro

In each case, they are the final arbiter. Are they not?

[Breakaway]

In each case, they are the final arbiter. Are they not?

They are an arbiter but not final. There is no final. The rendered decision is only good until the issue is challenged in court again. See Roe v Wade.

Kevin


Sent from my iPhone using Tapatalk Pro

[Osborne Russell]

Re: Supreme Court and Public Opinion

The Congress defines the size of the Supreme Court. It can both restrict its jurisdiction and regulate it.

I doubt it. Restricting jurisdiction of inferior courts and indeed eliminating them altogether is within the constitutional power of Congress. Doesn't apply to the Supreme Court. They are constitutional, not statutory officers.

The Code of Conduct for United States Judges was initially adopted by the Judicial Conference on April 5, 1973, and was known as the "Code of Judicial Conduct for United States Judges."
- -
Many of the restrictions in the Code are necessarily cast in general terms, and judges may reasonably differ in their interpretation. Furthermore, the Code is not designed or intended as a basis for civil liability or criminal prosecution. Finally, the Code is not intended to be used for tactical advantage.

https://www.uscourts.gov/judges-judg...-states-judges

In any case, it doesn't apply to the Supreme Court.

It isn’t clear, however, how the standards would be enforced, if they are adopted, and a post on Josh Blackman’s Blog questions how the legislative branch can constitutionally regulate the conduct of the judiciary.

In his 2011 end-of-year report, Chief Justice John G. Roberts Jr., who has declined to voluntarily adopt the Code of Conduct for United States Judges, set forth his apparent position, the blog notes.

“The Code of Conduct, by its express terms, applies only to lower federal court judges,” Roberts wrote. “That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”

The Congress most certainly has the power to issue regulations regarding when justices must recuse themselves.

Where in the Constitution is that power found?

Or simply mandate that if a single justice appears conflicted WRT a case, the court has no jurisdiction over that case (an exception, and kind of the nuclear option).

That is an example of jurisdiction limiting, not conduct regulating.

And no, the Supreme Court doesn't get to weigh in on the Congress's regulation of it -- that power to regulate is one of the checks and balances baked into our tripartite government.

Where in the Constitution is that power found?

The only thing the Congress can't do, barring an amendment to the Constitution, is do away with life tenure for the justices.

They can't do away with the delegation of the judicial power to the Supreme Court, under the Constitution, not in the slightest degree. The Supreme Court is the supreme arbiter of the nature and reach of that power. If they could, it would eliminate the Judiciary as a check on the other two branches, violating the principle of separation of powers.

What Congress could do is impeach and remove. They want someone else to do it, so if it goes wrong, they can claim they are not to blame.

[David G]

Re: Supreme Court and Public Opinion

I hope OR is incorrect... but how CAN we argue with him...

He is the very model of a modern Major-General!

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