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Wed Jun 26, 2013, 11:23 PM

Did Justice Scalia get it right?

This passage from our bigoted Justice Antonin Scalia in his angry dissent is deliberately singled out by me for purpose of discussion. Let me preface this by clarifying that I celebrate marriage equality today and that I am hard pressed to think of a single area of agreement between myself and Justice Scalia.

Here is the passage from Justice Scalia's dissent:
"That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere 'primary' in its role."

Did Justice Scalia unintentionally reveal a very real severe problem currently plaguing our very democracy?

Keeping things simple for those of us who are not Constitutional scholars. I learned in high school civics long ago that we had three 'coequal' branches of government. (Executive, Legislative and Judicial). No branch was more powerful than the other.

I further learned that our government was set up that way by our founding fathers deliberately to provide checks and balances on itself and that through the vote of the citizenry we become the final arbiter.

Justice Scalia asserts that the Supreme Court is more powerful than either the Executive or the Legislative branches. Thom Hartmann has been argueing the very same thing for years now.

So big DU, can one branch and only one branch of our government overrule the will of the other two? Can that branch of our government tell We The People how we can or can not act? Did Justice Antonin Scalia unintentionally reveal something about our government that he already knows to be true?




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Arrow 21 replies Author Time Post
Reply Did Justice Scalia get it right? (Original post)
chknltl Jun 2013 OP
William769 Jun 2013 #1
chknltl Jun 2013 #3
William769 Jun 2013 #6
Volaris Jun 2013 #2
chknltl Jun 2013 #9
Ms. Toad Jun 2013 #18
suston96 Jun 2013 #4
chknltl Jun 2013 #12
suston96 Jun 2013 #15
chknltl Jun 2013 #17
samsingh Jun 2013 #5
chknltl Jun 2013 #14
petronius Jun 2013 #7
Katashi_itto Jun 2013 #8
Ms. Toad Jun 2013 #20
chknltl Jun 2013 #16
Revanchist Jun 2013 #10
Douglas Carpenter Jun 2013 #11
pnwmom Jun 2013 #13
liberal_at_heart Jun 2013 #19
Iggo Jun 2013 #21

Response to chknltl (Original post)

Wed Jun 26, 2013, 11:44 PM

1. It's really simple.

Legislative Branch writes the laws, the executive branch enforces the laws and the juridical branch interprets the laws. Yes it's that simple.

Supreme Court justices can be impeached, thats where the checks & balances come into play. So Scalia if you don't like your job because when you throw a temper tantrum and don't get your way, do the honorable thing & quit (trust me you won't be missed).

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Response to William769 (Reply #1)

Thu Jun 27, 2013, 12:01 AM

3. Yesterday's SCOTUS interpretation was nothing more than an interpretation?

Then it does not overturn legislation created by Congress and signed into law by President Johnson? (In other words one branch having ultimate power over the other two?)

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Response to chknltl (Reply #3)

Thu Jun 27, 2013, 12:17 AM

6. They never overturn anything.

They find it Constitutional or Unconstitutional. If it's Unconstitutional get the laws rewritten to conform to the Constitution.

I'm not saying it's right, I'm saying thats how it works. Today's decisions is a perfect example. One member of the House & one member of the Senate has already put up legislation to take care of what was not accomplished in repealing all of DOMA. The system works it may not be fast but it works.

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Response to chknltl (Original post)

Wed Jun 26, 2013, 11:55 PM

2. If youre talking about the VRA case,

I think (even though I don't like the ruling) that there is governmental recourse available regarding the Courts decision. Basically, the Court said it's unconstitutional for Congress to require something for one state, and not another (not that WHAT is being required is unconstitutional, that would be a seperate question, and a seperate case).

The Constitutional remedy, as it were, is to have Congress make these kinds of voting requirements universal across ALL states. THIS is what requires the involvement of We The People, as getting a Congress capable of actually DOING that, is OUR problem, and to that, the Court could actually care less.

Basically, what Scalia said is that as it stands now, it's not a fair system. If we want to MAKE it fair, it's OUR problem, and we KNOW what the solution is (even if it's going to be damn hard to implement).

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Response to Volaris (Reply #2)

Thu Jun 27, 2013, 12:22 AM

9. A caller to Hartmann's program suggested this remedy:

The POTUS be mandated to add one new Supreme Court Justice each year of his Presidency. It means that the most senior Justice is retired each year. This opens (according to the caller) the Supreme Court more up to the will of the citizenry. Thom sounded quite captivated by the notion. He said he believed Congress could make such a change in the way our SCOTUS is currently run.

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Response to chknltl (Reply #9)

Thu Jun 27, 2013, 01:52 AM

18. Not a good idea.

Institutional memory - there is great value in not reinventing the wheel every few years just because the ever-new crop of justices can't remember what a wheel is. I worked for a judge who could remember nearly every case for the preceding 20-ish years he had been on the court, and could find cases decided by other influential courts it would be unlikely anyone would have found using standard legal research. It wasn't that the cases always went his way, or that we relied on his memory to tell us what a case said - we always pulled the actual cases - but his grounding in the history of the court meant the decisions were relatively consistent over time. The law needs to be consistent so people who make decisions based on the law can rely on the rug not being pulled out from under them just because all of the institutional memory vanished.

Insulation from political influence. That may seem odd, but how a jurist performs on the bench often has little relationship to the party which appointed him. There are many factors which lead to this, but two of them are being completely disconnected from political influence (in the sense that once appointed you no longer rely on party affiliation as a job retention prerequisite), and working on the breadth of cases which come before the court over time with some of the best legal minds around (both your fellow justices, and the cream of every year's law school graduates as judicial attorneys). Justice O'Connor and Justice Kennedy were appointed by Reagan, and Justice Souter was appointed by Bush. Just to name a few recent examples, but it often takes time to mature into a view which is independent of the person/party who appointed you (and there are, of course, a few stinkers who never do).

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:04 AM

4. Small disagreement - The 3 branches of government cannot be "co-equal".......

They have three very different functions albeit their commonality in the making, enforcing, and judging the law.

Nowhere in any of the founding documents, or in any other organic documents of the founding of this nation will that phrase -"co-equal branches" be found.

Checks and balances? Sure. But "co-equality"? Hardly.

The people are indeed supreme and their branch of government - the Congress - is also the supreme branch of government. "The Legislative is supreme" as John Locke inspired the founders of this new kind of government.

Indeed, there had never been a government created in human history where power originated in the will of those to be governed.

Consider their functions and the pecking order of supremacy between the three very different branches of government will become obvious.

Great OP. Thanks for bringing this topic up.


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Response to suston96 (Reply #4)

Thu Jun 27, 2013, 12:43 AM

12. The 'co-equal' notion came from an old civics class.

That class was back in the late 1960s early '70s. It stuck with me all these years. Regarding SCOTUS decision from two days ago, it allows the repugs to increase their voter suppression shenanagans. The fact that Congress can on its own descression challenge this provides none of us any comfort. That said doesn't it overrule actual legislation by Congress signed into law by President Johnson?

Furthermore on yesterdays Thom Hartmann program I heard that the SCOTUS also recently decided that we can not hold protests and demonstrations on quite specific areas (I believe banks were one of those areas). I saw no mention of this here in the DU but with my limited access I may have missed it. Don't we have a Constitutional right to gather and speak our minds when we feel our government is in error? Can the SCOTUS decide that We The People do not have such a right?

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Response to chknltl (Reply #12)

Thu Jun 27, 2013, 12:59 AM

15. I made that mistake years ago.....

...and I was corrected and was prompted to do some research on the topic.

Sure enough, no "co-equal" anything in our government.

Besides ALL the power in the Constitution is expressed in the first three words: We, the People.

Here is something I found recently you may like:

The people made the Constitution, and the people can unmake it.
It is the creature of their will, and lives only by their will.

Chief Justice John Marshall, 1821

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Response to suston96 (Reply #15)

Thu Jun 27, 2013, 01:31 AM

17. Chief Justice John Marshall's words from 1821 just put a huge smile on my face.

I think I may have to change my sig. line. Thanks for posting that.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:13 AM

5. scalia selected bush as president and ignored democrasy

his thoughts and words are full of shit.

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Response to samsingh (Reply #5)

Thu Jun 27, 2013, 12:51 AM

14. Yeah, he aint on my Christmas card list either. nt

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:17 AM

7. I would say that yes, the SC does get to over-rule the other branches, and thwart

their will when their will is deemed to be unConstitutional - determining whether or not a law or policy transgresses Constitutional boundaries seems to one of the purposes of the USCC. But I think Scalia is exaggerating in claiming that this puts the Court at the "apex" of government, for at least two reasons: the Court has to wait for cases to come to it (it doesn't get to go hunting for things to review), and the Court doesn't get to make laws or policies on its own or order the other branches around. Plus, appointments to the Court are controlled by the other two branches, and justices can themselves be impeached (as pointed out above).

So it's not a hierarchy, but a balance of three branches with defined responsibilities.

It seems to me that Scalia is throwing a bit of a tantrum here...

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Response to petronius (Reply #7)

Thu Jun 27, 2013, 12:21 AM

8. One other thing is SCOTUS has no enforcement capability

It's up to one other branches of govt to enforce it. For example DOMA ended up in front of SCOTUS because Executive wouldnt enforce it.

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Response to Katashi_itto (Reply #8)

Thu Jun 27, 2013, 01:55 AM

20. That is not why DOMA ended up in front of SCOTUS,

And in fact the refusal of the Executive Branch to argue on its behalf almost made the Supreme Court kick it out for lack of standing.

It wound up before the Supreme Court because an injured party challenged the law as unconstitutional. When that happens, it is the courts who decide the matter.

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Response to petronius (Reply #7)

Thu Jun 27, 2013, 01:23 AM

16. Wow. So of the three they do have the most power

Yes I do understand that this power is modified by the fact that they have no system of enforcement. (Presidents Jackson and Roosevelt were used as examples of POTUSes deliberately ignoring Supreme Court decisions on the Thom Hartmann show yesterday).

I am not comfortable knowing that our democracy has nine people overseeing it like this. I believe they can be used by those with designs and purposes contrary to the will of the citizenry. (I even heard a conspiracy theory that recent SCOTUS decisions are aimed to deliberately keep the electorate in deep schism.)

The fact that they can be impeached would be more comforting if I saw examples of it happening within my lifetime. Perhaps the bar for SCOTUS impeachment is higher than that for POTUS impeachment. Justice Roberts for Citizens United would be my first candidate for impeachment. Justice Scalia would be next.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:26 AM

10. In response to several of the posts here

You're leaving out one key element. If the Judicial branch decides that something is unconstitutional the Congress (and the American people) have the power to ammend the constitution to make it legal once again. In that way, the Supreme Court can never truly have the last word.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:32 AM

11. Justice Scalia is contridictding himself in regards to how he ruled on Citizens United.

A fundamental foundation principle of any western democracy are limited powers of the state. No matter how popular or unpopular an idea may be - that elected representatives cannot enact certain laws that contradict constitutional principle. For example the elected representative cannot ban the practice of the Jehovah Witness religion because it is unpopular - both with secular and religious people. Justice Scalia ruled that the elected representatives cannot restrict spending of individuals, independent PAC or corporations on political campaigns because that would represent a restriction on freedom of speech. So in fact Mr. Scalia did decide that when it came to the power of corporations to promote their interest - the Supreme Court is in fact more powerful than the elected representatives of the people.

The ruling on DOMA simply says that the federal government cannot penalize states for taking actions that are matters for the states to decide. The ruling on Proposition 8 simply says that the California Supreme Court has jurisdiction on matters of California Law. I suppose in some ways -both of these rulings are victories for state's rights and are in fact fairly conservative rulings. The courts did not decide that states cannot engage in discriminatory practices against gay people. They simply decided that the federal government cannot prevent the elected representatives of state governments who are subject to the judicial review of their state courts from enacting protection against discrimination against gay people.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 12:46 AM

13. No, he didn't get it right. And he completely contradicted himself with his VRA opinion,

where he didn't hesitate to overturn a law that had been approved by multiple Congresses and Presidents.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 01:55 AM

19. The fact that our Supreme Court is partisan one way or the other just shows how corrupt our

government is. One of the job requirements of being any kind of judge used to be impartial. Used to be a job requirement for journalism too. They don't even pretend anymore.

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Response to chknltl (Original post)

Thu Jun 27, 2013, 02:48 AM

21. No.

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