Checks and Balances regarding the U.S. Supreme Court

[Condessa]

Whatever side one may be on concerning the recent SCOTUS decision revoking Roe v. Wade, it seems to me that there may be common ground to be found over concerns about the power of the Supreme Court.  

One position has been very concerned by SCOTUS going beyond interpreting what is clearly written into law to inferring unwritten content, what is often referred to as “legislating from the bench”.  These people may be happy with recent rulings, but the precedent is still there for this to continue in the future.  
Others are very angry that a changing makeup of the Supreme Court has resulted in the revocation of rights established by judiciary precedent when the political makeup was different that people had relied upon for decades, and fear what other rights and precedents could suffer similar treatment.

Some believe it is unfair that the chance circumstance of however many justices dying when the executive and legislative branches are controlled by the same party should result in one party holding sway in the Supreme Court for decades going forward.  Some support “stacking the court” by simply adding more justices favoring their politics whenever they come back into power to retake the Court to prevent this outsized effect on the political balance.

Others believe this would completely neuter the judiciary branch’s ability to provide any checks or balances on the other two branches, and would turn them into a flip-flopping extension of the two main political parties in this country.

 

So whatever your personal politics, my question is: What changes would you suggest to check the power of the Supreme Court?  Or would you be against any changes for this purpose?

[Condessa]

Personally, I think that term limits might be a good place to start.  Even if it were possible to select them again for another term, I think that needing to be selected and affirmed again by a new president and congress would go a long way towards limiting chance from having an outsized result in the power balance for decades to come.

[Lady Florida.]

The checks and balances are there. The current way to 'check' the SCOTUS is to vote for senators and representatives who will make laws that can withstand court scrutiny. Obviously that hasn't worked and I don't think it will ever work again the way it once did - and the way it was meant to. It might be time to add term limits to the justices. Another option would be citizens voting whether or not to retain them as is done with many lower level judges. 

I'm not against expanding the current court. There IS precedent. It's been expanded before. 

[Katy]

Their power IS checked by congress. The fact that current legislative rules keep congress deadlocked is their problem, not the courts. If Democrats actually wanted to legislate Roe they’ve had plenty of squandered chances. They don’t. I don’t know why. Maybe both sides see it as their biggest, most controversial reason for turnout. 

[Faith-manor]

4 minutes ago, Lady Florida. said:

The checks and balances are there. The current way to 'check' the SCOTUS is to vote for senators and representatives who will make laws that can withstand court scrutiny. Obviously that hasn't worked and I don't think it will ever work again the way it once did - and the way it was meant to. It might be time to add term limits to the justices. Another option would be citizens voting whether or not to retain them as is done with many lower level judges. 

I'm not against expanding the current court. There IS precedent. It's been expanded before. 

Yes, and the court is really backed up because we don't expand it. There should be a justice for each circuit because they all take turns researching cases and writing briefs. So they are backed up because there aren't enough justices. There are 13 circuit appellate courts. 

That said, though this could be a basic civics discussion, I think the thread will be locked.

[shawthorne44]

Congress has been lily-livered as far back as I can remember.  They are the ones that are supposed to declare war when needed, they've taken the chicken way out.   They are supposed to pass actual laws.   But, instead they turn their power over to the bureaucrats.   

Now on the Supreme Court, I don't want an activist bench.   

Edited July 19, 2022 by shawthorne44

[Pawz4me]

5 minutes ago, Faith-manor said:

There should be a justice for each circuit because they all take turns researching cases and writing briefs. So they are backed up because there aren't enough justices. There are 13 circuit appellate courts. 

 

This is what I keep coming back to, so . . . yeah, I think I'd support expanding the court. And also term limits. 

[Condessa]

I could get behind expanding the court to a number logical to keep up with their cases if it were written into law to then keep it at that number.  But if it’s done to wrest control from one party to another as I have frequently heard suggested lately, that would undermine our judicial system and set us up for it happening over and over again as each party temporarily gains the upper hand.

[Condessa]

1 hour ago, Katy said:

Their power IS checked by congress. The fact that current legislative rules keep congress deadlocked is their problem, not the courts. If Democrats actually wanted to legislate Roe they’ve had plenty of squandered chances. They don’t. I don’t know why. Maybe both sides see it as their biggest, most controversial reason for turnout. 

But what check is there when the court goes beyond interpreting law to creating it?  For whatever reason, neither party has ever had the political will to legislate on abortion at a federal level.  But despite this lack of legislation, Roe was the de facto law for fifty years.

[Condessa]

1 hour ago, shawthorne44 said:

Congress has been lily-livered as far back as I can remember.  They are the ones that are supposed to declare war when needed, they've taken the chicken way out.   They are supposed to pass actual laws.   But, instead they turn their power over to the bureaucrats.   

Now on the Supreme Court, I don't want an activist bench.   

On the bolded statement: I wholeheartedly agree.  How can it be prevented or discouraged?

Edited July 19, 2022 by Condessa

[KSera]

1 hour ago, shawthorne44 said:

Now on the Supreme Court, I don't want an activist bench.   

 

8 minutes ago, Condessa said:

On the bolded statement: I wholeheartedly agree.  How can it be prevented or discouraged?

I think now that we're there, it's hard to address. Term limits seem like a good idea, but it also concerns me that if justices were up for vote, their decisions might be swayed by wanting to remain "popular" and retain their positions. I think the way they are appointed might need tweaking, but it's hard to figure out how that should be. One president shouldn't end up appointing a large portion of the court over the course of a single term. I don't think that was intended, but I'm not sure why the framers didn't see that potential. I tiptoe around saying this, because it's awful, but it makes me concerned for the judges' safety, because the current way of appointing seems to potentially put them at risk if someone wants new judges and doesn't care if they go to jail to do it.

[prairiewindmomma]

I think:

impeachment re: the lying that occurred during the confirmation hearings should be considered. (Samuel Chase is the only sitting justice to have ever been impeached—but there is precedent.)

Justice Gorsuch is seated only because McConnell blocked Garland—I would like to see the voting rules changed a bit here.

I think the ethics and professional responsibility/disciplinary arm should kick in with re: to Justice Thomas and his wife’s actions. It arguably should have blocked him from appointment to begin with re: Anita Hill, and he should have been subject to discipline with re: to the later accusations. Everyone is hesitant to act since it would ding the reputation of the Court generally, but I think we crossed that threshold this year. The legitimacy of the Court, and therefore the freedom of our nation is in question.

[shawthorne44]

1 hour ago, Condessa said:

On the bolded statement: I wholeheartedly agree.  How can it be prevented or discouraged?

Congress needs to step up an actually pass laws.   The Supreme Court fills the void left by the Congress.  

The presidents have also been filling the void with presidential mandates.  I've been waiting for a president to start their first day in office with a presidential mandate nulling all previous presidential mandates.  

The thing is, to have a stable government it needs to be hard to make changes.  I quake inside at the idea of elected justices.  

Regarding safety of the justices, wasn't there a Grisham book based on that idea?  

 

[Faith-manor]

Also, the reputation of the court really should not be a consideration when it comes to discipline. Haven't we learned this lesson before? Accountability always. No reputation should come ahead of tossing those to the curb who impugn themselves and their colleagues by ethical and potentially illegal behavior. I think we put too much stock in reputation and saving face in this country.

[desertflower]

No politics please