Judicial Branch too Powerful?

[SabreReedfrost]

Is it just me, or is the Judicial Branch somewhat overstepping its boundaries? They were created to interpret laws... but recently, they seem to have been taking matters into their own hands a little much, almost as if they're creating the laws. Is it just me, or are others seeing this as well?

[OROD]

Please give specific examples of what you're talking about.

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[Sean Butler]

Is it just me, or is the Judicial Branch somewhat overstepping its boundaries? They were created to interpret laws... but recently, they seem to have been taking matters into their own hands a little much, almost as if they're creating the laws. Is it just me, or are others seeing this as well?

This isn't exactly a new position to take up concerning the U.S. Supreme Court. In fact, to quote Thomas Jefferson in speaking about the landmark case Marbury vs. Madison where Justice Marshall had deemed the 11th Amendment to be unconstitutional, he said,

"The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal."
http://press-pubs.uchicago.edu/found...1_8_18s16.html

[catwood1]

When one branch oversteps its bounds, you need another branch to follow it there...

[MyrddinsPrecint]

Please give specific examples of what you're talking about.

I agree. There are a number of SC decisions I don't like, but it's often that I don't like the laws they have to work with, or I fundamentally disagree, not that I think that the decisions are an abuse of power.

For Example, DC v. Heller: Now, I'm not so sure I believe in the *individual* right to bear arms at all, partially because until 2008, the Supreme Court had never indicated that there was an individual right. But since a lot of people have believed for a long time that there has always been an individual right, having the Supreme Court finally say that there is one is not exactly shocking, nor is it legislating from the bench (although there's a sentence in the decision about what the decision DOESN'T affect that gets a bit close to that line.)

[dcmdale]

Is it just me, or is the Judicial Branch somewhat overstepping its boundaries? They were created to interpret laws... but recently, they seem to have been taking matters into their own hands a little much, almost as if they're creating the laws. Is it just me, or are others seeing this as well?

Depends a lot on what you mean by "recently."

The Judicial Branch was *not* created to "interpret laws," no matter what your high school civics book said. The natural function of courts is to decide facts and apply law to those facts. "Applying the law," of course, has significant interpretive aspects (Marbury), but it doesn't concentrate interpretation in the hands of the judiciary any more than the executive or legislative branches, nor does it make interpretation exclusively a federal prerogative as opposed to state and individual.

The Constitution is a written document for much the same reason contracts are written: it allows everyone to see what was written and agreed to.

The current trend towards judges asserting the sole right of the judiciary to interpretation traces back to the FDR appointments in the late 1930’s when the Court started expansively utilizing the post-Civil War amendments and the Commerce Clause to expand Federal and Judicial powers. This trend reaches its climax with Roe (1973) where Blackmun invokes the “penumbra” of the Constitution to create a “constitutional right” where he couldn’t even stretch the text enough to justify it. My Constitutional Law professor, a radical feminist, while emphatically happy with the result of the decision, predicted that: 1) because a right that was created out of whole cloth could be abolished just as easy, abortion rights advocates would end up spending the next 50-100 years in a single-minded focus trying to defend a liberal composition to the Supreme Court, and 2) that conservative justices would start to use the Roe rationale as precedent for their own “beyond the Constitution” interpretations. I would personally put the Supreme Court intervention in Bush v. Gore in the latter bucket (even though I supported the result and have zero respect for the Fla. Court). The former is self-evident.

The difference between rule by judicial fiat and legislative process I think comes very clearly in the abortion debate. While Roe is one of the most widely known decisions of the Supreme Court, it is largely only read by law students. In many ways, it is a very moderate decision, trying to mimic the kind of legislative considerations that might have happened had the decision gone through a legislative process. If the abortion debate *had* been decided by legislative process in 1973, it is likely that it would have come out not too different than Roe made it out. However, because it came out of the courts, not the legislative process where the different viewpoints (and there were many viewpoints in 1973, not just 2) might have felt that they had their perspectives taken into account, abortion went from being “an issue” to immediately became the most divisive issue in the United States since slavery. All of the pre-existing moderate views immediately were forced to the two most extreme camps.

I think that rule-by-judiciary is the last thing that the Constitutional fathers intended, but until/unless Congress asserts its own power…

[Sean Butler]

The question is, now that it is accepted that the SC can declare a law unconstitutional, how does Congress pass any law which is immune to this "veto"? If the President vetoes a law, the House and Senate can by 2/3 majority pass it anyway. If the Judiciary "vetoes" it, why isn't there a way to overrule them?

[dcmdale]

The question is, now that it is accepted that the SC can declare a law unconstitutional, how does Congress pass any law which is immune to this "veto"? If the President vetoes a law, the House and Senate can by 2/3 majority pass it anyway. If the Judiciary "vetoes" it, why isn't there a way to overrule them?

The Constitution didn't provide a direct mechanism because they didn't anticipate that with checks and balances, this situation would be allowed by Congress. Congress, however, has a number of tools available to it should it choose.

However, it is much less clear what recourse states have to deal with unconstitutional activities by the Supreme Court. Under the original schema, states legislatures who felt that the Supreme Court was overstepping its authority would have selected Senators who would have a say in the approval of new justices. However, since the 17th Amendment, states, as governments, have lost whatever checks they had over the federal government and I think that is reflected by the overall erosion of state government relevance over the past 70 years. Was the 17th Amendment intended to revoke the 10th? I don't think so.

[Sean Butler]

The Constitution didn't provide a direct mechanism because they didn't anticipate that with checks and balances, this situation would be allowed by Congress. Congress, however, has a number of tools available to it should it choose.

Could Congress pass a law which states that no court may declare a law to be unconstitutional? That would be the real test, wouldn't it?

[Philistine]

{snip}If the President vetoes a law, the House and Senate can by 2/3 majority pass it anyway. If the Judiciary "vetoes" it, why isn't there a way to overrule them?

The two methods for addressing Constitutional decisions Congress doesn't like from the Supreme Court are amendment of the Constitution, or impeachment of one or more Justices.

Alternatively, there is always a "court packing" plan, ala FDR. Assuming Congress and the President are on the same page--add to the number of Justices on the Supreme Court, and the President can appoint several new Justices whose idea of constitutionality is more in line with his.

--Philistine

[dcmdale]

Could Congress pass a law which states that no court may declare a law to be unconstitutional? That would be the real test, wouldn't it?

I have actually heard that proposed by certain members of Congress; however, it generally is assumed that they would just declare that law unconstitutional--probably correctly.

[Inquartata]

The two methods for addressing Constitutional decisions Congress doesn't like from the Supreme Court are amendment of the Constitution, or impeachment of one or more Justices.

Alternatively, there is always a "court packing" plan, ala FDR. Assuming Congress and the President are on the same page--add to the number of Justices on the Supreme Court, and the President can appoint several new Justices whose idea of constitutionality is more in line with his.

--Philistine

Or just redrafting the law to address the grounds on which it was ruled unconstitutional. Although that could make for a protracted process if the Court was really determined to quash the idea of the law rather than just the specific statute...