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  1. #1
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    Supreme Court decisions

    The legislative process is well defined. We vote for legislators, they go to Washington. They draft, debate, vote, and the president approves or vetos. There are definite rules to follow along the way, most of it is public, and we feel like we have a degree of input and control. If we don't tke what they do, next election we can vote the moreons out. Plus, they are bound by Court review for legality under the Constitution.

    The Court is different. Appointments are rare, somewhat mysterious, and for life. There us very little input or responsiveness. The process is mostly closed off. We can see the briefs and argument, but then we know nothing until the result is announced months later. While there are internal rules of procedure, there are almost zero rules for what the decision is. There are "rules" of construction and precedent, but they are so vague and loose, any result is possible. The Court attempts to justify its decisions, but frequently the result oriented approach is transparent. Then, we feel mostly powerless to do anything about a decision we dislike. Constitution amendments are possible, but it's very cumbersome and never been done to overturn a Court decision. Justices can be replaced, but only as they die or retire, and it is relatively rare. Plus, even when replacements occur, we can't expect decisions to be reversed. We are essentially stuck with their decisions, with no public process, no rules, and no recourse. It all feels very undemocratic.

    Recall that the Constitution does not actually grant the Court the power to declare legislation or actions unconstitutional. In addition to all the undemocratic circumstances above, the Court bootstrapped for itself the most important power it has in one of its own decisions. In Marbury v. Madison, the Court ruled that it had the power to declare legislation unconstitutional, ironically an act enlarging the Court's power.

    All that makes it frequently difficult to accept the Court's decisions. They appear political when they aren't supposed to be. We expect judges to be impartial, but they don't appear to be. We expect them to be restained and confined to the precise legal question before them, but frequently they appear to over reach. We expect them to follow precedent and the words of legislation, unless of course we dislike either. Maybe we expect them to protect us from ourselves, the village elders all wise and fair. We are disappointed when we feel let down.

    Nonetheless, i don't think anyone has come up with a solution to change the process for the better. Just as baseball has umpires and no one can challege a judgment call, we similarly have to have someone to "make the call."

    This also shows that probably the single most important and long lasting task a president does is make Court appointments. Short of engaging the military, almost everything else has little consequence or can be changed.

    Any realistic suggestions for improvement?
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  2. #2
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    I think the first step should be to question all aspects of the status quo.

    For example, what constructive purpose does having their appointments last until death or retirement serve?

  3. #3
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    Quote Originally Posted by TerminatorX91 View Post
    I think the first step should be to question all aspects of the status quo.

    For example, what constructive purpose does having their appointments last until death or retirement serve?
    Let us say for argument that their appointments were of fixed specified length. What happens at a time like the last 4 years, where 1/2 of Congress openly tried to keep as many appointments from happening as possible? I'm honestly not sure what the number is right now, but even last year the number of vacant appointments being held up in Congress for no real reason was in the hundreds.

    Imagine if instead of 5-4 decisions, we could only have 4-4? Or could the Court not convene at all? Among the many matters of SCOTUS that "just are" and not stipulated in the Constitution, there's nothing saying that there can only be 9 judges on the SCOTUS.
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  4. #4
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    Quote Originally Posted by Marc View Post
    Let us say for argument that their appointments were of fixed specified length. What happens at a time like the last 4 years, where 1/2 of Congress openly tried to keep as many appointments from happening as possible? I'm honestly not sure what the number is right now, but even last year the number of vacant appointments being held up in Congress for no real reason was in the hundreds.

    Imagine if instead of 5-4 decisions, we could only have 4-4? Or could the Court not convene at all? Among the many matters of SCOTUS that "just are" and not stipulated in the Constitution, there's nothing saying that there can only be 9 judges on the SCOTUS.
    We need to define how long Congress can hold up court appointments before it is derelict in it's duty and then determine what if any remedy the should be.

    Should the Legislative Branch have the ultimate upper hand over the Executive's nominees for appointments to the Court?

    How does a 4-4 Court decision go now when one recuses them self from a case?

  5. #5
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    Quote Originally Posted by Marc View Post
    Let us say for argument that their appointments were of fixed specified length. What happens at a time like the last 4 years, where 1/2 of Congress openly tried to keep as many appointments from happening as possible? I'm honestly not sure what the number is right now, but even last year the number of vacant appointments being held up in Congress for no real reason was in the hundreds.

    Imagine if instead of 5-4 decisions, we could only have 4-4? Or could the Court not convene at all? Among the many matters of SCOTUS that "just are" and not stipulated in the Constitution, there's nothing saying that there can only be 9 judges on the SCOTUS.
    Can't a vote be 4-4 now if one recuses? Are the Justices required to render an opinion?
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  6. #6
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    Quote Originally Posted by Live Steam View Post
    Can't a vote be 4-4 now if one recuses? Are the Justices required to render an opinion?
    A 4-4 vote means the previous (Court of Appeals) decision stands.
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  7. #7
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    and speaking of recusing
    why didn't Thomas recuse himself from the last decision. Having your family take $1.5 million from the healthcare industry seems to be a conflict of interest
    one nation, under surveillance with liberty and justice for few

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  8. #8
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    Quote Originally Posted by atpjunkie View Post
    and speaking of recusing
    why didn't Thomas recuse himself from the last decision. Having your family take $1.5 million from the healthcare industry seems to be a conflict of interest
    Same for Kagan.
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  9. #9
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    I think that the current system works pretty well. Of course, people on my side of the aisle still are upset about Bush v. Gore, and people on your side of the aisle, are upset about last week's decision on the ACA.

    There are two constitutional changes that I throw out for discussion. I'm not sure that I necessarily would support them. But, they could address certain criticisms of the Court.

    First, have each seat on the court have an 18 year term, with the incumbent being ineligible to be re-nominated at the end of the term and the senior sitting justice being the Chief Justice. The terms would be staggered at two year intervals so that a president would have two spots to fill during each presidential term. This change would address the criticisms that justices stay too long and that some justices refuse to retire until a president of their liking is in office.

    Second, make judicial review of constitutionality an explicit part of the Constitution, but require that any holding that a statute is unconsitutional be by at least a 6-3 vote of the Court. This change would make it harder for the Court to overturn laws that were enacted by the democratically elected branches (i.e., the Congress and the President), but still have a constitutional check.

    Neither of the reforms that I have stated above would have helped those who are upset about what happened last week. John Roberts has served less than 18 years and the complaint from the right about last week is not that the Court struck down a statue, but that it allowed it to stand.
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  10. #10
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    My understanding was that lifetime appointments were there to keep them impartial. They don't have to please whoever was elected the previous year to keep their job so they ought to be able to make their decisions freely. That's the idea I guess, at least, but it doesn't help set aside personal ideals. I suppose that's why there's nine of them.


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  11. #11
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    Quote Originally Posted by JoeDaddio View Post
    My understanding was that lifetime appointments were there to keep them impartial. They don't have to please whoever was elected the previous year to keep their job so they ought to be able to make their decisions freely. That's the idea I guess, at least, but it doesn't help set aside personal ideals. I suppose that's why there's nine of them.


    joe
    So... If they have a standard term limit doesn't that have the same effect?

  12. #12
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    Quote Originally Posted by JoeDaddio View Post
    My understanding was that lifetime appointments were there to keep them impartial. They don't have to please whoever was elected the previous year to keep their job so they ought to be able to make their decisions freely. That's the idea I guess, at least, but it doesn't help set aside personal ideals. I suppose that's why there's nine of them.


    joe
    I think the lifetime appointments stabalize the situation. We don't need a fight over the SCOTUS or a change of it's makeup that looks like a political roller coaster. It's fine the way it is as is most of the original blueprint for our govt.

  13. #13
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    Quote Originally Posted by TerminatorX91 View Post
    I think the first step should be to question all aspects of the status quo.

    For example, what constructive purpose does having their appointments last until death or retirement serve?
    Supposedly to make them a-political. Didn't work for Roberts.

  14. #14
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    Quote Originally Posted by Snakebit View Post
    I think the lifetime appointments stabalize the situation. We don't need a fight over the SCOTUS or a change of it's makeup that looks like a political roller coaster. It's fine the way it is as is most of the original blueprint for our govt.
    If you think random chance has a stabilizing effect.

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    Quote Originally Posted by Mel Erickson View Post
    A 4-4 vote means the previous (Court of Appeals) decision stands.
    What if there a different lower courts had different decisions like the case of ObamaCare? Some courts upheld it, other strucked it down.

  16. #16
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    Quote Originally Posted by TerminatorX91 View Post
    So... If they have a standard term limit doesn't that have the same effect?

    I guess it depends on whether or not they are allowed to be re-nominated/appointed.


    joe
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  17. #17
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    Broken ... not Fixed

    Let's begin with the assumptions made in your opening paragraph.

    The legislative process is well defined. [true]

    We vote for legislators, they go to Washington. They draft, debate, vote, and the president approves or vetos. [false]

    There are definite rules to follow along the way, most of it is public, and we feel like we have a degree of input and control. [false]

    If we don't tke what they do, next election we can vote the moreons out [false]

    The process of electing, and subsequent governing is awash with special interest influence with outcomes that frequently have little or no semblance of what the general public wants. Public elections at the federal level have become so expensive that average Joe donation have next to no influence. Day-to-day legislative and executive action are moderated, if not controlled, by powerful lobbyists who, in some cases actually write the legislation, but in all case weigh in. Much of this is not public. And now ,in this post-Citizens United era, special interest money for seemingly unknown, and even perhaps foreign sources, are buying access to the legislative process, and perhaps even elections. And finally, your notion that the current system allows for periodic elective house-cleaning is naive, as incumbents win 90% or more of their re-elections.

    The Supreme Court current demise from a lofty tower of judicial reckoning, to a soiled hall of partisan, 5-to-4 decisions along ideological line is worrisome. But this is what you should expect when a government is control by special interest and not the people's interest.

    Reform begins with an elective transformation with public funds only, and over a much shorter period.

    The last true Commander and Chief got it right when he said the people must always be vigilant and beware the effects of powerful, organized outside institutional influence.
    Last edited by troutmd; 07-03-2012 at 09:41 AM.
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  18. #18
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    Quote Originally Posted by JoeDaddio View Post
    I guess it depends on whether or not they are allowed to be re-nominated/appointed.


    joe

    I would expect that they could not.

  19. #19
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    A couple potential solutions, from a self-described moreon:
    - make the appointments lengthy, but not a lifetime; let's say 10 years (some states do this)
    - increase the size of the court to reduce the power of any one judge (13? 17?)
    What's the Matter with Kansas?

  20. #20
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    Quote Originally Posted by Jett View Post
    What if there a different lower courts had different decisions like the case of ObamaCare? Some courts upheld it, other strucked it down.
    That's one of the problems of an equally divided court. The SCOTUS may choose to hear rearguments of the case once the full court is available (perhaps the court was down to 8 due to illness or a vacancy). It's more problematic when there is a recusal because that means as long as the judge(s) who recused themselves sit on the bench there will always be an even number of judges and the possibility of another evenly split vote. Most of the time split appellate court decisions that are not decided by the Supremes work their through the system again via certciorari on another case with similar questions, but it can take years. It can leave the system in a state of limbo (didn't the Catholic Church recently abolish Limbo?).
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  21. #21
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    Quote Originally Posted by NJBiker72 View Post
    Supposedly to make them a-political. Didn't work for Roberts.
    Standardized term limits for justices on the Court without the possibility of reappointment would be just as effective at ensuring they are politically impartial.

    I don't believe for second that there is zero political partiality influencing these people. Term limits would at least keep flushing through these people and their biases on a uniform schedule.

    There is one hitch though... Marc already pointed it out... If Congress is permitted to drag out appointments for unreasonably long periods of time term limits on a set schedule won't work

  22. #22
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    Quote Originally Posted by TerminatorX91 View Post
    If you think random chance has a stabilizing effect.
    There is nothing random about the selection of these Justices. What very often happens is that they grow with the job and will rule counter to the wishes of those who appoint them. Changing them every 8 to 10 years wastes their experience in the judicial system and more importantly their understanding of the responsibility and duty of the highest court in the land. The FF's got it right, they protected us from the impatience of those who think they know what's best by taking politics out of their considerations.

  23. #23
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    No. For good or ill, the Founders and their immediate heirs figured out an amazingly great system, which includes a SCOTUS that will drive you (all of us) nuts.

    Quote Originally Posted by Fixed View Post
    The legislative process is well defined. We vote for legislators, they go to Washington. They draft, debate, vote, and the president approves or vetos. There are definite rules to follow along the way, most of it is public, and we feel like we have a degree of input and control. If we don't tke what they do, next election we can vote the moreons out. Plus, they are bound by Court review for legality under the Constitution.

    The Court is different. Appointments are rare, somewhat mysterious, and for life. There us very little input or responsiveness. The process is mostly closed off. We can see the briefs and argument, but then we know nothing until the result is announced months later. While there are internal rules of procedure, there are almost zero rules for what the decision is. There are "rules" of construction and precedent, but they are so vague and loose, any result is possible. The Court attempts to justify its decisions, but frequently the result oriented approach is transparent. Then, we feel mostly powerless to do anything about a decision we dislike. Constitution amendments are possible, but it's very cumbersome and never been done to overturn a Court decision. Justices can be replaced, but only as they die or retire, and it is relatively rare. Plus, even when replacements occur, we can't expect decisions to be reversed. We are essentially stuck with their decisions, with no public process, no rules, and no recourse. It all feels very undemocratic.

    Recall that the Constitution does not actually grant the Court the power to declare legislation or actions unconstitutional. In addition to all the undemocratic circumstances above, the Court bootstrapped for itself the most important power it has in one of its own decisions. In Marbury v. Madison, the Court ruled that it had the power to declare legislation unconstitutional, ironically an act enlarging the Court's power.

    All that makes it frequently difficult to accept the Court's decisions. They appear political when they aren't supposed to be. We expect judges to be impartial, but they don't appear to be. We expect them to be restained and confined to the precise legal question before them, but frequently they appear to over reach. We expect them to follow precedent and the words of legislation, unless of course we dislike either. Maybe we expect them to protect us from ourselves, the village elders all wise and fair. We are disappointed when we feel let down.

    Nonetheless, i don't think anyone has come up with a solution to change the process for the better. Just as baseball has umpires and no one can challege a judgment call, we similarly have to have someone to "make the call."

    This also shows that probably the single most important and long lasting task a president does is make Court appointments. Short of engaging the military, almost everything else has little consequence or can be changed.

    Any realistic suggestions for improvement?

  24. #24
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    Quote Originally Posted by OES View Post
    No. For good or ill, the Founders and their immediate heirs figured out an amazingly great system, which includes a SCOTUS that will drive you (all of us) nuts.
    On the surface we seem to be in step on this one.

  25. #25
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    Quote Originally Posted by Snakebit View Post
    There is nothing random about the selection of these Justices. What very often happens is that they grow with the job and will rule counter to the wishes of those who appoint them. Changing them every 8 to 10 years wastes their experience in the judicial system and more importantly their understanding of the responsibility and duty of the highest court in the land. The FF's got it right, they protected us from the impatience of those who think they know what's best by taking politics out of their considerations.
    No, what's random is WHEN justices die or retire and WHEN new justice are selected.

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