Can The Supreme Court Do Anything? (hell, America)

[Joe Stocks]

Hello everybody,

I remember having a discussion with doppelganger about Roe v. Wade and I was questioning whether the decision was the correct one or not. And doppelganger's argument was more semantical, but it was basically that the Supreme Court said it was constitutional, therefore it was constitutional (I have also learned that doppelganger has gone to law school where I have not so case closed there is no need to discuss legal issues if you haven't gone to law school ).

But is this right? It doesn't seem to be right. I mean, if the Supreme Court calls something Constitutional and then it is Constitutional doesn't that make it the most powerful branch of government in American government? And doesn't that violate the entire intention of having a federal judiciary (with other equal branches of government)?

So, my question is, does the Supreme Court calling something "constitutional" make that something "constitutional?"

[doppelgänger]

Ask the Cherokee of Georgia.

[Sunstone]

Who would you prefer had the final say-so on whether something was constitutional or not, Joe?

[Joe Stocks]

Hi doppelganger,

Ask the Cherokee of Georgia.

Can you elaborate on this?

[Joe Stocks]

Hi Sunstone,

Who would you prefer had the final say-so on whether something was constitutional or not, Joe?

I would prefer that we should emphasize that the Supreme Court is one branch of government that shares power with two other branches and that their word is not the final word on all Constitutional matters.

[gnomon]

Originally Posted by Joe Stocks

So, my question is, does the Supreme Court calling something "constitutional" make that something "constitutional?"

That's pretty much the case.

Here's some background,

Judicial review in the United States - Wikipedia, the free encyclopedia

The Federalist #78

In many cases the SCOTUS does not rule on the constitutionality of laws but rather the interpretation of lower courts on those laws. An example would be the case where Michael Newdow filed suit against the inclusion of "under God" in the pledge of allegiance. After the 9th circuit ruled that phrase to be unconstitutional under the establishment clause the state appealed to the Supreme Court. The case before the Court was not the constitutionality of the phrase or any law but whether or not Newdow had the appropriate parental authority to file a suit on behalf of his daughter. They ruled he did not because he no longer exercised guardianship over his daughter.

The same with Raich v. Ashcroft.

Giving such power of interpretation to a sole individual in the executive or too a varied body such as Congress would be a nightmare in my opinion.

[Joe Stocks]

Hi gnomon,

But that shouldn't be the case. The Supreme Court has put its nose into a lot places that it had no right to (but it delcared it had the right to). Cases where state legislatures made decisions, but the Supreme Court didn't like those decisions.

[CaptainXeroid]

Originally Posted by Joe Stocks

Can you elaborate on this?

Dopp can correct me if I miss something, but here's the gist. The Supreme Court ruled in favor of a group of Cherokee American Natives that the 'Indian Removal Act' requiring them to relocate was unconstitutional. President Andrew Jackson blatantly disregarded the Court's ruling and ordered the Cherokee forcibly removed from their lands.

As to the question in the OP:

Originally Posted by Joe Stocks

So, my question is, does the Supreme Court calling something "constitutional" make that something "constitutional?"

The short answer is 'Yes', unless a future ruling changes it. IIRC, in 1896, in Plessy v. Ferguson, the Court ruled that seperate but equal was constitutional as it related to racial segregation in public accomodations. As you may have read, in 1954 in Brown v. Board of Education, that notion was reversed.

As a side note, the Supreme Court does have tremendous power as evidenced by the fact that phrases not found in the Constitution such as 'seperate but equal' and 'seperation of church and state' are thrust into the legal lexicon to the point that many people mistakenly believe that they were in the document itself.:

[gnomon]

Originally Posted by Joe Stocks

Hi gnomon,

But that shouldn't be the case. The Supreme Court has put its nose into a lot places that it had no right to (but it delcared it had the right to). Cases where state legislatures made decisions, but the Supreme Court didn't like those decisions.

I don't think I would agree with that. The cases must be brought to the Supreme Court and they decide whether or not the case has merit. The Fourteenth Amendment binds the States as well. The right of due process is a right held up by the Supreme Court as inviolate by any legislative body. I would like to see some use of the forgotten 9th Amendment used as well ... but that's a completely different matter.

There are many cases where I disagree with the Court's decision. Sometimes I wonder if the justices (specifically Scalia) have gone off the deep end. Raich, Kilo and Hudson are very poor decisions by the court in my opinion. Many others, notably those with executive and police powers, disagree. But the decision being made by a third party is a necessity in my opinion. I also realize that their decisions do not set anything in stone.

Congress still has the power to establish laws (by amending the Constitution) and the Executive has used the power of privilege to exempt itself from law (and thus creating new law in my opinion). Among judicial review, executive privilege and amending the Constitution only the latter is explicitly stated in the Constitution as an actual power. The others exist as an understanding of the separation of powers. The power of judicial review is very important, in my opinion, to maintain a stable federalist, constitutional republic.

The SCOTUS is a reactive body entirely dependent on the other two bodies of government whereas both the Executive and Legislative bodies are proactive. The existence of the SCOTUS is necessary in my opinion. I'll respect that body even though I find it's current mentality somewhat lacking.

I believe the discussion can go no further unless we discuss specific cases. Unfortunately, I am not a legal scholar by any means. I've only read the more recent decisions and some rather old ones regarding religion.