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

[Prof David West]

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.

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.

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.

The author of the memos: Chief Justice John Roberts.

davew


On Tue, Oct 13, 2020, at 10:43 AM, uǝlƃ ↙↙↙ 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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