The Supreme Court of the United States Thread

#3,476
#3,476
volgr said:
Ironically, the Supreme Court itself largely operates outside of the Constitution. Like the other 2 branches, it magically gave itself many powers it wasn't Constitutionally granted. If I were President, I would largely ignore SCOTUS rulings.
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Wut
 
#3,488
#3,488
n_huffhines said:
You've gone from federal to local, so it doesn't necessarily work the same, but the judge in Greeneville, TN would be ruling on a law presumably laid out by the mayor and/or city council, or some other body of government. I don't know of instances where a local judge is just making up laws out of thin air and if they are, it's not supposed to work that way.
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Unfortunately courts do this all the time. Gay marriage is an example. Very few states passed laws that marriage can be between members of the same sex but that's what we've got
 
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#3,492
#3,492
n_huffhines said:
He'd just usurp power like the rest of them...
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I find it amusing when people ask if a nominee is an originalist...while most don't understand the actual originalist intent of the Supreme Court and how it mostly operates outside of originalist intent.
 
#3,493
#3,493
Sea Ray said:
Unfortunately courts do this all the time. Gay marriage is an example. Very few states passed laws that marriage can be between members of the same sex but that's what we've got
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I misunderstood his hypothetical @Wireless1

The response I should have had was,

A ruling in Greeneville that a mask mandate is constitutional wouldn't apply to Knox County, unless Knox County had a law, too. Just because the law is constitutional doesn't mean it gets applied to everyone.

However, in the case of gay marriage where SCOTUS found a law unconstitutional, the ruling struck down all similar laws.
 
#3,494
#3,494
85SugarVol said:
I believe that’s what we refer to as an Originalist.

Scalia would be the oft cited example.
Gorsuch too, I think.
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Yes and no.

Originalism is not a uniform methodology except that all originalists seek to root constitutional interpretation in the original meaning of the document because that creates a sense that judges are seeking the right or wrong answer rather than just making things up.

I don’t think anyone currently on the court looks too much at the framer’s intent. Trying to determine what the framers meant was an early originalist idea, but became disfavored when it became clear that it allowed too much outcome-driven jurisprudence the way examining legislative intent did in statutory interpretation.

I think all of them now claim to look at the original public meaning, or how it was publicly understood when it was ratified. There is a lot more evidence for this, and there is some common methodology among Thomas, Kavanaugh, Gorsuch, Barrett, and Kagan (yes, she claims to be an originalist). I’m not sure if Alito and Roberts claim to be originalists or not. All of the other five look at the text, history, and tradition. Text being the document itself. History being the British common law and law of the colonies. Tradition being everything that happened after ratification.

Kagan, Kavanaugh, and maybe Barrett seem to place more emphasis on tradition than do Thomas and Gorsuch.

It’s a general framework aimed at a particular goal (judicial restraint) that creates a pretty broad range of methods and outcomes. Not unlike critical race theory.

If interested, there’s a podcast: Dissenting Opinions, that had like a 7 part series where one law professor criticized originalism and the other defended it. Will Baude, the professor defending originalism, has written some extremely insightful law review articles, so it’s not like Lawrence Tribe and Johnathon Turley doing a WWE bit together. It’s pretty dry and granular, but I listened to it while mowing the yard last summer and thought it was very good.
 
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#3,495
#3,495
n_huffhines said:
I misunderstood his hypothetical @Wireless1

The response I should have had was,

A ruling in Greeneville that a mask mandate is constitutional wouldn't apply to Knox County, unless Knox County had a law, too. Just because the law is constitutional doesn't mean it gets applied to everyone.

However, in the case of gay marriage where SCOTUS found a law unconstitutional, the ruling struck down all similar laws.
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Government shouldn’t be in the marriage business to begin with.
 
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#3,496
#3,496
volgr said:
I find it amusing when people ask if a nominee is an originalist...while most don't understand the actual originalist intent of the Supreme Court and how it mostly operates outside of originalist intent.
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Judicial Review is a power the supreme court magically bestowed upon itself. Roosevelt and congress should have acted immediately after the Marbury v Madison ruling and stripped this made up power from the court. It's been an albatross around our necks since.
 
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#3,498
#3,498
hog88 said:
Judicial Review is a power the supreme court magically bestowed upon itself. Roosevelt and congress should have acted immediately after the Marbury v Madison ruling and stripped this made up power from the court. It's been an albatross around our necks since.
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This is something I've never really understood. Isn't the power of judicial review implied? If they don't have that power, what is even the point of SCOTUS?
 
#3,499
#3,499
n_huffhines said:
This is something I've never really understood. Isn't the power of judicial review implied? If they don't have that power, what is even the point of SCOTUS?
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The first Justice, I believe, left to become a Governor and complained that it was basically a meaningless position. Maybe it was the second, but an early Justice.
 
#3,500
#3,500
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