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

Wed Oct 14 00:08:16 EDT 2020

Thanks, Dave, Eric. I had no idea these positions had been proposed,
especially so recently and especially by Roberts!

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.

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.

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.

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

On Tue, Oct 13, 2020 at 3:17 PM Eric Charles <eric.phillip.charles at gmail.com>
wrote:

> Holy cow, this is fascinating!
>
> 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:
>
> 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
>
>
> 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.
>
> When the Attorney General issued a final letter, it appeared to draw
> heavily upon what Roberts had prepared, including the opinion that Congress
> could *not *limit the Supreme Court's power. The Attorney General's
> letter concluded (p. 7):
>
> 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.
>
>
> Here is a link:
> https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/014-supreme-court-jurisdiction/folder014.pdf
>
> <echarles at american.edu>
>
>
> On Tue, Oct 13, 2020 at 5:04 PM Prof David West <profwest at fastmail.fm>
> wrote:
>
>> 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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