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

[Eric Charles]

I cannot attest to her earnestness, and we can haggle over the phrasing,
but I think we all agree that there are some sorts of decisions that are
clearly executive branch decisions, some that are clearly legislative
branch decisions, and some that are clearly judicial branch decisions. That
said, there will be gray-area problems where a problem can be looked at
from an angle that makes it seem like a legislative issue or an angle that
makes it seem like a judicial issue.  And beyond just the gray-area
problem, most social issues that are big enough to draw broad cultural
attention are going to be complex enough to include facets that fit into
more than one area.

Even acknowledging the gray area, and that complex problems will have
facets that fit in the different categories, it is still A Good Thing that
anyone put on the Supreme Court sees their job as making certain types of
decisions but not others. If a complex problem comes before them, they
should offer a decision on only those facets that are judicial issues. If a
gray-area case comes before them, the lawyers bringing the case should have
to make a convincing argument that it is appropriate for the court's to
weigh in.

If there is something wrong about her phrasing, it is that - particularly
at the Supreme Court level - judges have a significant role in deciding the
meaning of "law as written."

Roberts tie-breaking Obamacare concurrence is a good example. The law
*appeared* to be written so that people were *penalized *for not having
insurance. Roberts agreed with his conservative colleagues that Congress
does not have the power to do what they appeared to be doing. Roberts,
however, pointed out that a penalty for not having insurance was
mathematically identical with a tax on everyone that you could get out of
by buying insurance. He asserted the "law as written" to be constitutional
based on that equivalence and Congress's power to levy taxes.


<echarles at american.edu>


On Tue, Oct 13, 2020 at 3:06 PM Russ Abbott <russ.abbott at gmail.com> wrote:

> 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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