How to curtail judicial activism

[JimG]

I agree with the first part. But what provision of the constitution gives the Congress the power to limit the jurisdiction of the court in any way it wishes? If that were the case, the three branches of government would not be co-equal. The Congress would be in a position to completely dominate the court.

Article III, Section 2: . . . In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

 

[oliver927]

… you may not like the “legislative activism” that will result from you new provision of giving judicial powers to the legislature.

I’m not suggesting giving judicial powers to the legislature. I am suggesting that it would be good for a sufficiently large majority of the legislature to be able to say to the SCOTUS: “you got this wrong” and nullify the court ruling. The legislature wouldn’t be making a judicial ruling, just nullifying one. Right now the courts are able to essentially rewrite laws with little to no consequence.

…
This essentially creates an alternate federal legislature out of the state legislatures. This essentially guts the power of the existing national legislature, and replaces it with a body that is not more responsive to the people than the body that you just displaced. The alternate federal legislature is elected on a state by state basis, just like the existing one. What’s the difference?

Nope, it doesn’t. Not at all. An ‘alternate federal legislature’ would be able to make laws. I am not suggesting that. I don’t want the state legislatures to make federal laws, only to be able to nullify them with a sufficient majority of the States.

 

[oliver927]

You render the document meaningless if you take away SCOTUS authority to declare laws unconstitutional.

It will take on the meaning of whatever congress happens to believe at any given moment in time. Which mean we will have no foundational rights.

I’m not proposing taking anything away, just suggesting an additional check on the courts which have been taking it upon themselves the power of the legislature to rewrite laws and invent “rights”.

The constitution is supposed to place limits on government power and affirm that individuals have rights which can’t be taken away-- not even by the majority. It is the only way to protect from the tyranny of the majority over foundational rights.

Now, I will agree that at times SCOTUS has ‘found’ rights that don’t exist in the document. Legally, I think the appropriate ruling on the gay marriage issue was to simply state- there ain’t nothing in the constitution about the federal government having the authority to define marriage- it’s up to the individual state.

Too many times SCOTUS has failed to invoke the 10th amendment,
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

To me, that’s where a lot of the ‘judicial activism’ has come from. Not recognizing that if the Constitution didn’t grant the authority, its a states rights issue. And that includes- a state doesn’t have the authority in an area either.

I agree with this part.

 

[LeafByNiggle]

Article III, Section 2: . . . In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

This gives Congress the power to limit the court’s appellate jurisdiction, but not is original jurisdiction, as was decided in Marbury v. Madison. So you are half-right.

 

[Inisfallen]

I would define it as, "whenever the Court rules contrary to the original intent of the framers of the constitution, or of the original intent of the framers of an amendment. "

Jon

Then you’re gonna need another Super-Supreme Court to decide when the Supreme Court has “rules contrary to the original intent of the framers of the constitution.”

And another to decide when the Super-Supreme Court is wrong. . .

It’s turtles all the way down.

 

[JimG]

This gives Congress the power to limit the court’s appellate jurisdiction, but not is original jurisdiction, as was decided in Marbury v. Madison. So you are half-right.

The Congress might vote to limit the Court’s jurisdiction with respect to certain matters. But then the Court, exercising the power of judicial review of congressional legislation—a power it gave itself in Marbury v Madison—might declare the legislation unconstitutional, thereby setting up a clash over powers of the Court vs powers of the Congress. The States could call for a constitutional convention to settle such a conflict.

 

[LeafByNiggle]

The Congress might vote to limit the Court’s jurisdiction with respect to certain matters. But then the Court, exercising the power of judicial review of congressional legislation—a power it gave itself in Marbury v Madison—might declare the legislation unconstitutional, thereby setting up a clash over powers of the Court vs powers of the Congress. The States could call for a constitutional convention to settle such a conflict.

In any case, there is no currently-constitutional way for Congress to exercise absolute control over the jurisdiction of the court. Either we disband the Federal government, or we modify the Constitution.

 

[JimG]

In any case, there is no currently-constitutional way for Congress to exercise absolute control over the jurisdiction of the court. Either we disband the Federal government, or we modify the Constitution.

I’m no constitutional expert, but according to the linked article, Article III of the Constitution IS a constitutional way for Congress to exercise control over the Court’s jurisdiction.

 

[LeafByNiggle]

I’m no constitutional expert, but according to the linked article, Article III of the Constitution IS a constitutional way for Congress to exercise control over the Court’s jurisdiction.

It is a way for Congress to exercise limited control, yes. But it is not a way to arbitrarily redefine primary jurisdiction.

 

[mary_bobo]

I would like to see Congress override court rulings similar to overriding a presidential veto.

I would like to see the States override federal laws with a 2/3 or maybe 3/4 majority of the States voting to do so.

Term limits for judges and Congress would be a good thing in my opinion.

And a mandatory retirement age at least for Congress would not be bad either.

 

[styrgwillidar]

And a mandatory retirement age at least for Congress would not be bad either.

Drafting our representatives similar to the way juries are manned would be even better.