Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”
Many observers dismissed his comment out of hand, noting the express language in Article III, establishing the court’s jurisdiction under “such regulations as the Congress shall make.”
But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.
No part of the Constitution gives the Supreme Court the power of judicial review either. The court created that power out of nothing. If you wanna get pissy, Alito.
He seems to think he’s above the Constitution. Probably thinks he’s Judge Dredd.
I don’t know why but I can’t picture Alito in a full suite of armour with helmet and sidegun and all… the image I have of him with such a loadout on himself is that of a frail, weak, elderly man blabbering about his authority on people’s life…
Wait, that’s how I would see more or less anyone of that sort nowadays.
Maybe American institutions nedd a bit of a refresher
I can’t tell you how happy I am to see someone point this out here.
As if the ridiculous set of laws we have weren’t bloated enough already, the nearly bottomless stack of court cases that modify them all and stack on each other make it impossible to have a fair trial.
It’s telling that the people who want to eliminate the Executive Departments because they don’t have Constitutional authority to create laws have been silent on Judicial Review.
I made the same point elsewhere in this thread… But in fairness, the Constitution gives them final judicial appeal power (pretty much word-for-word).
It’s an interestingly thin line that their judicial decision about any dispute is binding. It’s clear they have judicial decision about any dispute of fact. From that, it seems obvious in retrospect that would give them final appeal power on any dispute of law as well. Ironically, that they aren’t the final decisionmaker on State Law seems the oddity based upon the wording of their mandate.
That’s the point of a judiciary, sadly. If two parties disagree on something relevant, we’re supposed to have a neutral arbitration about which party is correct. One party says “the Constitution does not allow abortions” and the other party says “that’s not how it looks to me”. Lacking congressional action, there’s already relevant law one way or the other and people are disagreeing on which way the law goes. In an ideal world, a “free” country should err any ambiguity on the side of individual freedom, but even then there’s a disagreement on whether a fetus could legally be seen as an individual.
I think the problem with Marbury is that nobody saw exactly how broken the idea of having one authority to decide “who decides what is true when two parties disagree on the facts?” could extend. As the US court is a Common Law court, I wonder how much of that comes from European judicial style anyway.
Wow what a stupid misunderstanding you’ve spent so many paragraphs elucidating on.
Dissolve the court. Arrest Alito, Thomas, Gorsuch and Kavanaugh - the crimes committed by those four are known to the public. Appoint a special investigator for each remaining justice. If they’ve so much as taken a stick of chewing gum from someone with business before the court imprison them too. Every one of them is delinquent in their duty to preserve the impartiality and legitimacy of the court. Every one of them has cosigned Alito’s statement that the court is above regulation. Every one of them endorses this clown show where the highest court in the land is blatantly, publicly for sale. If they won’t protect the legitimacy of the court we need to take steps to protect the legitimacy of the court from them. They can declare themselves immune from prosecution but no one is immune from the will of a people united in their support for real justice.
At least 59 people think this is a high quality post or more likely just agree with it.
no one is immune from the will of a people united in their support for real justice
How do you intend to enforce that will? While you aren’t saying it outright it almost sounds like you are thinking about grabbing a red hat and storming the building.
How do you intend to enforce that will.
Frankly, I don’t. That would make me a dictator. But you’ll notice that history tends to have a pattern of punctuated equilibrium where things stay mostly the same for a really long time, then become very different very quickly, then stay that way for a really long time. Those decades where nothing happens tend to be associated with people forgetting that they can have whatever they want whenever they decide to get it. Then they remember that nothing works unless they do, and that turns into a few weeks where decades happen. Sometimes people just need a hand remembering that they always have and always will run the show.
It’s interesting that your first thought is violence. It’s direct, and it has worked in the past, but I think that even aside from the issue of morality violence is becoming less and less effective as states are more prepared for it. What I would propose if I had the power to make this decision is literally nothing. I think we should all sit on our hands and do absolutely nothing for a couple days. Coordinate with one another so that we can make sure no one goes hungry while we do nothing, and so that we can accurately convey to the master class what it would take from them to get us back to doing something. Then we wait, and I don’t suspect it would take very long. In fact, I honestly believe that if a majority of us did nothing on Monday that we would all have whatever we wanted by Friday. Much more complex to implement than violence, it requires a lot more coordination and cooperation, but I think that it’s both morally superior and more effective if you can pull it off. It’s easy to defeat violence. All you need is superior violence and the state is really good at violence. They could pretty handily stimy violent revolution. But a flat refusal to participate in any manner is a lot harder to deal with.
A nation-wide walk-out is definitely a fun thought experiment. If we could even have meeting of the minds on a state level, I bet having a single state-wide walk-out would shift political discourse quite a bit. I suspect that there would be an overwhelming fear of it happening again.
Why are you acting like the only possibility of removing Alito would be an insurrection?
Add more justices to the court. Then Alito’s opinion will not matter so much.
The Judiciary Act of 1869 sets the size of the Supreme Court at 9. Congress would have to pass a law to make that happen.
In order:
The Republican controlled House won’t vote for it.
Republicans in the Senate would filibuster it.
Democrats in the Senate will never get rid of the filibuster because they love their procedural excuse for breaking campaign promises.
Yes but according to Alito, Congress has no power over the supreme court so that act is moot and anyone can just make up a number.
I didn’t think about that. If Congress can’t set the number of justices, then the law currently setting it at 9 is illegal.
I think you’re actually right, people can just make up a number and go with it. If the President and Senate agree to 500 justices, and Alito is correct, then there are 500 justices. If both later decide they only want 3 justices, then 497 of them are fired. There is no legal limit, which means it literally can be any number as long as the president nominates and the Senate confirms.
Brilliant find!
I’m going to say n- and r-words here. National referendum.
Congress will never agree to give up anymore power than the other branches already take.
Short of a Constitutional Convention we will never see this passed. Unfortunately, a Constitutional Convention is a dangerous game even when we are less divided as a nation. The last one produced a new constitution instead of edits to the old one.
Could you imagine what a constitution would like like if it was written by the current bunch of goobers running the country?
