<div dir="ltr">A lot of current attitudes (in the legal profession) about the proper role of SCOTUSwas shaped by the backlash against Roe vs. Wade. If you go back to that point in history, the push to make abortion legal had a huge amount of momentum, and many states had passed their own laws ensuring abortion was legal. There was every expectation that within a few years, almost every state would have passed similar laws, through the "natural" "democratic" process. When SCOTUS stepped in with its ruling, the idea that THAT was not a decision for the courts to make became a galvanizing issue, and seemed to dramatically increase public anti-abortion sentiment. It is <i>widely </i>believed that abortion rights would be more widely accepted today if the process had been allowed to proceed without judicial interference. Plus it made SCOTUS seem "political" in ways many didn't think was helpful. <div><br></div><div>There was a lot of discussion about this while SCOTUS was deciding whether or not to hear same-sex marriage cases, for example. "Given that more and more states were passing same-sex marriage laws every year, why not just sit back and let the issue resolve itself legislatively?", some argued, "You don't want to risk the backlash that happened with abortion!" </div><div><br></div><div>Regarding the Constitution... We stuck in the last 12 words of Article III, section 2, 2nd paragraph:</div><blockquote style="margin:0 0 0 40px;border:none;padding:0px"><div><span style="color:rgb(33,33,33);font-family:Roboto,arial,sans-serif;font-size:14px;background-color:rgb(245,245,245)">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, <u>with such Exceptions, and under such Regulations as the Congress shall make.</u></span> </div></blockquote><div><br></div><div>The language of the section in question is pretty darn general, but it's never been tested. As I read it, I imagine the founders were thinking of exceptions to broad classes of action, not the review of particular laws. For example, if Congress decided that SCOTUS could not review grazing-permit disputes between private citizens and the federal government, that might make sense.
A law would be written that empowered the holder of a particular federal job to be a final arbiter regarding the granting of permits, and that individual's decisions would not be up for judicial review. Or, for example, if military court marshals were not up for judicial review (though could still be over-ridden by the President - as Commander in Chief) that could make sense. In contrast, it would be weird to try to argue that SCOTUS couldn't review a law broadening the scope of warrantless house-raids to determine whether said law violated constitutional privacy protections. </div><div><br></div><div>If such efforts ever became a big deal, presumably the issue would go before the courts. At that point, we would have the awkward situation of trying to determine whether SCOTUS has the constitutional power to determine the constitutionality of a law that restricted SCOTUS's powers to review the constitutionality of other laws. Ack!</div><div><div><div dir="ltr" data-smartmail="gmail_signature"><div dir="ltr"><div><div dir="ltr"><div dir="ltr"><div dir="ltr"><br></div><div dir="ltr"><br clear="all">-----------<br><div dir="ltr">Eric P. Charles, Ph.D.<br>Department of Justice - Personnel <span>Psychologist</span></div><div>American University - Adjunct Instructor</div><div></div></div><div dir="ltr"><a href="mailto:echarles@american.edu" target="_blank"></a></div></div></div></div></div></div></div><br></div></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Wed, Oct 14, 2020 at 12:09 AM Russ Abbott <<a href="mailto:russ.abbott@gmail.com" target="_blank">russ.abbott@gmail.com</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div dir="ltr"><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)">Thanks, Dave, Eric. I had no idea these positions had been proposed, especially so recently and especially by Roberts!</div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)"><br></div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)">Supreme court review wrt constitutionality is not in the constitution. So there certainly seems to be room to argue that Congress could insulate some laws just by saying so.</div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)"><br></div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)">The policy vs. law issue applies in other situations, though. For example, as I understand it Row v Wade was not a decision of a law that explicitly allowed abortion. Roe v Wade "found" the right to abortion in the constitution. Even though I'm on the pro-choice side, I'm not sure that was a good way to establish such a "right"--and especially by SCOTUS. That really does seem like policymaking. On the other hand, since we've been living with it for quite a while, overturning it now would seem inappropriate. Similarly for gay marriage. </div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)"><br></div><div class="gmail_default" style="font-family:arial,helvetica,sans-serif;font-size:small;color:rgb(0,0,0)">If SCOTUS wants to challenge such SCOTUS-found rights, an interesting approach would be for them to give congress a certain period of time to make a law creating those rights before the decision takes effect.</div><div><div dir="ltr"><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><font><u style="color:rgb(33,33,33);font-family:"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:16.5px;line-height:20px"><br></u></font></div><div dir="ltr"><font><u style="color:rgb(33,33,33);font-family:"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:16.5px;line-height:20px"> </u></font><span style="color:rgb(33,33,33);font-family:"Helvetica Neue",Helvetica,Arial,sans-serif;font-size:16.5px;line-height:24.75px"> </span>-- Russ Abbott <br>Professor, Computer Science<br>California State University, Los Angeles<br></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div></div><br></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Tue, Oct 13, 2020 at 3:17 PM Eric Charles <<a href="mailto:eric.phillip.charles@gmail.com" target="_blank">eric.phillip.charles@gmail.com</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div dir="ltr">Holy cow, this is fascinating! <div><br></div><div>Roberts had written a 27 page Memo on the topic (starting on p. 66). There appears to be no ambiguity that Congress can limit what the federal lower courts can hear. The issue is particularly whether it can limit the ability of SCOTUS to hear cases. Roberts argues strongly that Congress could limit the ability of the SCOTUS to hear issues, effectively making the the state supreme courts the final arbiters on those issues, particularly in the context of 14th Amendment cases (as that Amendment was written in an era where people were pretty pissed at SCOTUS, and therefore it has special language making Congress the final arbiter of relevant issues). However, the context of the article is specifically summarizing a bunch of recent papers and a conference on exactly that topic. As he puts it: </div><blockquote style="margin:0px 0px 0px 40px;border:none;padding:0px"><div>this memorandum is prepared from a standpoint of advocacy of congressional power over the Supreme Court's appellate jurisdiction; it does not purport to be an objective review of the issue, and should therefore not be viewed as such. The memorandum does not consider specific proposals but rather the general question of congressional power </div></blockquote><div><br></div><div>Later Roberts prepared (at request) two versions of letter with different final paragraphs, one arguing that the congress could not limit the Supreme Court and one saything that it could. (page 53-56 in the link below). Both versions said that it was probably a terrible idea for Congress to make the 50 state supreme courts final arbiters of national issues, as surely disagreements would arise.</div><div><br></div><div>When the Attorney General issued a final letter, it appeared to draw heavily upon what Roberts had prepared, including the opinion that Congress could <i>not </i>limit the Supreme Court's power. The Attorney General's letter concluded (p. 7):</div><blockquote style="margin:0px 0px 0px 40px;border:none;padding:0px"><div>
For reasons which I have developed at some
length, I do not agree and have concluded that S. 1742 is
unconstitutional. Ultimately, however, it is for Congress to
determine what laws to enact and for the Executive Branch to
"take care that the Laws be faithfully executed." It is not
for the Attorney General but for the courts ultimately to rule
on the constitutionality of Congress' enactment. As I have
stated in another context, the Department of Justice must and
shall defend the Acts of Congress "except in the rare case when
the statute either infringes on the constitutional power of the
Executive or when prior precedent overwhelmingly indicates
that the statute is invalid." Accordingly, while I believe
that S. 1742 is unconstitutional, should the Congress believe
otherwise and should I be called upon to defend its constitutionality before the courts, I responsibly could and would do
so with all of the resources at my command.</div></blockquote><div><div><br></div><div>Here is a link: <a href="https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/014-supreme-court-jurisdiction/folder014.pdf" target="_blank">https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/014-supreme-court-jurisdiction/folder014.pdf</a><br clear="all"><div><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr"><br><div></div></div><div dir="ltr"><a href="mailto:echarles@american.edu" target="_blank"></a></div></div></div></div></div></div><br></div></div></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Tue, Oct 13, 2020 at 5:04 PM Prof David West <<a href="mailto:profwest@fastmail.fm" target="_blank">profwest@fastmail.fm</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
The author of the memos: Chief Justice John Roberts.<br>
<br>
davew<br>
<br>
<br>
On Tue, Oct 13, 2020, at 10:43 AM, uǝlƃ ↙↙↙ wrote:<br>
> I've forgotten what venue it was. But someone made the argument that <br>
> elsewhere (other countries), courts don't have the power to strike down <br>
> entire laws, and that extensive power is not inherent in our laws, <br>
> either ... that it was somehow more convention than written in stone. <br>
> They made the argument that John Roberts understands this, and <br>
> understands that if the populace begins to reject the legitimacy of <br>
> SCOTUS decisions, a flood of techniques could be used to degrade the <br>
> courts' authority (much like the trends in the "unitary executive" have <br>
> degraded Congress' authority).<br>
> <br>
> It seems like that argument is relevant to at least one of your questions.<br>
> <br>
> For me, until Kavanaugh, I'd never really realized how political the <br>
> SCOTUS actually is [⛧]. The membership is pretty much locked down by <br>
> the Senate. And the Senate is the rural/right bastion, the core <br>
> representation problem. We complain a lot about the electoral college. <br>
> But it's the structure of the Senate that's the real problem for <br>
> progressivism. So, for me, they've lost all patina of "objectivity" at <br>
> this point. They're as vapidly political/partisan as the House. We may <br>
> as well admit this loss of credibility and find a way to "harden" it <br>
> against abuse. Of course, the Rs don't "govern". So we're left in the <br>
> unfortunate position of relying on the Ds to do it, if it'll be done at <br>
> all.<br>
> <br>
> <br>
> [⛧] Yes, I know. All the signs were there my entire life. What can I <br>
> say? I'm a moron. It took a Frat boy being confirmed to make me realize <br>
> it.<br>
> <br>
> On 10/13/20 9:18 AM, Russ Abbott wrote:<br>
> > Amy Coney Barrett said that judges should stick to legal issues and leave policymaking to legislatures. <br>
> > <br>
> > "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," <br>
> > <br>
> > 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?<br>
> <br>
> <br>
> -- <br>
> ↙↙↙ uǝlƃ<br>
> <br>
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