[FRIAM] Can SCOTUS limit itself to law without making policy?

[Russ Abbott]

Basically agree with you. (Justice Marshall decided that courts have the
power to rule that laws violate the constitution.)

I think that in some countries a court that finds a law somehow invalid is
obligated to suggest changes that would make it valid -- and not just throw
it out. (Perhaps that's the same thing you read.)

Drawing a line between policy and legal issues would be one way to "harden"
the courts against overt political interference. But can it be done in a
way that would be widely accepted and then implemented?

-- Russ Abbott
Professor, Computer Science
California State University, Los Angeles


On Tue, Oct 13, 2020 at 9:43 AM uǝlƃ ↙↙↙ <gepropella at gmail.com> 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
>
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