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Thread: The Supreme Court Is Much Too Powerful

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    The Supreme Court Is Much Too Powerful

    The current frenzy over the vacancy on the Supreme Court in the wake of Justice Kennedy's retirement highlights just how much power has been centralized in the hands of a small number of people in Washington, DC.



    The left has grown positively hysterical over the thought of yet another Trump-appointed judge being installed, who could potentially serve on the court for decades. Right-wingers who claim the left is overreacting, however, are unconvincing. One can only imagine the right's reaction were Hillary Clinton president. She would have already had the opportunity to appoint Scalia's replacement, and we might now be talking about her nominee to replace Justice Ginsberg.

    The right-wing media would be filled with article after article about how the new court would be a disaster for health-care freedom, private gun ownership, and, of course, the unborn.

    But, as it is, we live in a country where five people on a court decide what the law is for 320 million people. And for some reason, many people think this is entirely normal. It's our own American version of the Soviet politburo, but few are even bothering to ask whether it's a good idea.

    After all, if it makes sense for a small handful of people to decide law for the entire country, why even bother with a House of Representatives? Even the Senate — composed primarily of multimillionaires living full-time in Washington, DC, is is extravagantly "democratic."

    The Myths Behind the Court
    To combat the obvious absurdity of the Supreme Court's vast lawmaking powers, however, we have invented a number of myths designed to convince ourselves that the Court is not, in fact just another political institution. It is — we tell ourselves — something special. Something non-political.

    But, as I wrote in “ The Mythology of the Supreme Court,” the idea of the court as a group of jurisprudential deep thinkers is a tale for little school children:

    This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

    In practice, the Supreme Court is just another federal legislature, although this one decides matters of public policy based on the opinions of a mere five people, most of whom spend their time utterly divorced from theeconomic realities of ordinary people while cavorting with oligarchs and other elites.

    The court’s legislative power is matched by its political power since every vacancy on the court is a gift to the dominant political parties. Every time a justice dies or retires, the event provides political parties with yet another opportunity to issue hysterical fundraising letters to the more monied supporters and demand unqualified support from the rank and file while claiming the SCOTUS-appointment process makes the next election “the most important ever.”

    It seems to bother few, however, that we live in a political system where the most important political and economic matters of the day — or so we are told — are to be decided by a tiny handful of people, whether they be the chairman of the Federal Reserve, five Supreme Court justices, or a president with his “ pen and phone.”

    Just as it is supremely dysfunctional for a major economy to hang on every word of a central bank chairman, so too should it be considered abnormal and unhealthy for a country of 320 million people to wait with bated breath for the latest prognostications of nine friends of presidents in black robes from their palatial offices in Washington, DC.

    The Court Is Just a Group of Nine Politicians in Fancy Robes
    We’re told by pundits and politicians from across the spectrum how indispensable, awe-inspiring, and absolutely essential the Supreme Court is. In truth, we should be looking for ways to undermine, cripple, and to generally force the Court into irrelevance.

    We ought to point out at every opportunity that the whole notion of judicial review, which is itself a total innovation and fabrication dreamed up by Chief Justice John Marshall. Absolutely nowhere does Article III of the Constitution (the part that deals with the court, and is half a page long) give the court the power to decide on what can be legal or not in every state, town, village, or business of the United States. Moreover, as Jeff Deist has noted, the Court’s powers we so blithely accept as fait accompli are mostly made up:

    The concept of judicial review is a fabrication by the Court, with no basis in Article III.

    Constitutional jurisprudence is not constitutional law.

    The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.

    Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.

    A Tool of Centralization of Power
    But don’t look for many in Washington to admit this any time soon. The Supreme Court serves a very important function in centralizing federal power in DC and in the hands of a small number of senior federal personnel.

    And how convenient it is for members of the ruling classes to influence and access these guardians of the federal government's intellectual respectability: the members of the court, presidents, and senators are all generally all members of the same socio-economic class, send their children to the same elite schools, and work and live together in the same small social circles. At the same time, this closed social and professional circle also helps to diminish the influence of those outside the Washington, DC bubble.

    The Court in Its Present Form Could be Abolished Overnight
    If it wished to, Congress could overhaul the Court this afternoon. Nothing more than simple legislation would be necessary to radically change or completely abolish the lower federal courts. Congress could decide what topics fall under the lower courts' jurisdiction, and thereby limit the Supreme Court’s jurisdiction as well. Congress could also decide that the Supreme court is made up of one justice or 100 justices.

    Indeed, since the Supreme Court is nothing more than a legislature, why not make it one? Why not make SCOTUS a body of 50 “judges,” with the understanding that the Senate will not ratify any appointment which does not hold to the rule that each state gets a judge on the Court? Politics and ideology prevent this, but no Constitutional provision does.

    “But the court would just declare all those reforms to be unconstitutional,” some might say. That is true, although to that, we need only paraphrase the (possibly apocryphal) words of Andrew Jackson: “the Court has made its decision. Now let them enforce it.”

    The Court need not worry, though, since its can nearly always count on the support of the president and the Congress precisely because the Court serves an essential role in augmenting the power of the other branches of the federal government.

    The Solution: Mock the Court and Seek to Undermine It
    Far too often we’re told to revere the Court simply because it is enshrined in the Constitution. Slavery is enshrined in the Constitution too. Need we revere that?

    Even if the Supreme Court’s current form were actually Constitutional (which, again, it is not) it would still be a obsolete relic of a distant age. The idea that the Supreme Court could somehow address all the legal issues arising in a vast confederation was absurd from the outset, but all the more so now. Recognizing this, the authors of the Constitution created the Court as a body designed to address only conflicts between states, or between individuals of different states. In other words, it was supposed to head off conflicts that could lead to crises between state governments; it was designed to prevent wars between states. Whether or not your local confectioner should bake a cake for gay couples wasn’t exactly at the top of the agenda.

    Even in the late 18th century though, the Court's status as a tiny elite club required the creation of the myth that the court was somehow "apolitical" which was buttressed by the creation of lifelong tenure for judges, no matter how senile or out of touch. Otherwise, prevailing ideas of representation in government at the time would have never allowed for a political institution like the Court to gain acceptance. This can be illustrated by the fact that in 1790, Congress was far more "democratic" than it is now, in the sense that there were far more representatives per person than today. Elections in many state governments were annual affairs, and legislative districts very small by today's standards, ensuring that your elected officials lived in close proximity to you and were physically accessible.

    In contrast to this, in 1790, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans. Not even the Soviet politburo managed that level of non-representation.

    On the other hand, there is no reason why a council of state governments could not be employed to address issues of conflicts between states, and the states (or even small portions thereof) — not nine political appointees — should perform the function of judicial review. This isn't the 18th century. Having delegates from a variety of diverse and geographically varied states remain in constant contact and regularly meet is by no means a logistical impossibility.

    Even worse, many of the justices haven't had a real job in decades and have no idea how reality actually works. It's unlikely that the older members of the Court could even use Google to find a phone number on the internet, let alone understand the complexities of how modern people run their businesses, raise their families, or function in every day life. The Court is largely the domain of geriatrics who are paid generously to make complex judgments about a world they rarely engage and can scarcely understand.

    If Americans want a government that's more likely to leave them in peace, they should ignore the pleas to elect another politician who will just appoint another donor or political ally to the court. Instead, state and local governments should seek at every turn to ignore, nullify, and generally disregard the rulings of the Court when they run counter to local law and local institutions where — quite unlike the Supreme Court — average citizens have some actual influence over the political institutions that affect their lives.

    https://www.zerohedge.com/news/2018-...h-too-powerful
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    Re: The Supreme Court Is Much Too Powerful

    That was just funny. I don't remember any articles like this when it was a liberal court with a lefty president.

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by brosil View Post
    That was just funny. I don't remember any articles like this when it was a liberal court with a lefty president.
    That's the point of the article. It should not matter the judges political bent because they have no jurisdiction within the states.
    "Paper is poverty, it is only the ghost of money, and not money itself." --Thomas Jefferson to Edward Carrington, 1788
    "The greatest threat to the state is when the people figure out they can exist without them." - Twisted Titan
    "Some Libertarians are born, the government makes the rest."
    "Voting is nothing more than a slaves suggestion box, voting on a new master every few years does not make you free."

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by Ares View Post
    they have no jurisdiction within the states.
    Nonsense. The States agree to the jurisdiction by going along with the federal 'scheme'. They even write federal legislation into their state code. Review the definitions of the revised code of Washington wherein "within this state" is the federal areas within the exterior boundaries of the state. Not without mind you. WITHIN.

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    midnight rambler (12th July 2018)

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by ziero0 View Post
    Nonsense. The States agree to the jurisdiction by going along with the federal 'scheme'. They even write federal legislation into their state code. Review the definitions of the revised code of Washington wherein "within this state" is the federal areas within the exterior boundaries of the state. Not without mind you. WITHIN.
    As the Constitution was written, Legislative branch, Executive branch, Judicial branch have zero jurisdiction within the state.


    It is clear that Congress, as a legislative body, exercise two species of legislative power: the one, limited as to its objects, but extending all over the Union: the other, an absolute, exclusive legislative power over the District of Columbia. . . . Cohens v Virginia, 19 U.S. 264, 434 (1821).

    The laws of congress in respect to those matters [preservation of the peace and the protection of person and property] do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national goverment [sic]. . . . Caha v. U.S., 152 U.S. 211, 215 (1894).

    It [the legislative power of Congress in the District of Columbia] exists independently, and the legislative powers of the States can never conflict with it, because it can never operate within the States. . . . Cohens v Virginia, 19 U.S. 264, 436 (1821).

    [T]here is no such thing as a power of inherent sovereignty in the government of the United States. It is a government of delegated powers, supreme within its prescribed sphere [federal territory] but powerless outside of it [the Union]. In this country, sovereignty resides in the people, and Congress can exercise no power which they have not, by their Constitution, entrusted to it; all else is withheld. Julliard v. Greenman, 110 U.S. 421, 467 (1884).

    Since I see no Constitutional amendment giving them such jurisdiction then the States providing it through Roman Civil Law does not grant them that power either since the states themselves are just political subdivisions of D.C. via incorporation (need I remind you that the Constitution provides zero authority for corporate governance?) I.E. absolutely no authority to give D.C. any legislative, judicial, executive power over the Union member States.
    "Paper is poverty, it is only the ghost of money, and not money itself." --Thomas Jefferson to Edward Carrington, 1788
    "The greatest threat to the state is when the people figure out they can exist without them." - Twisted Titan
    "Some Libertarians are born, the government makes the rest."
    "Voting is nothing more than a slaves suggestion box, voting on a new master every few years does not make you free."

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by Ares View Post
    [T]here is no such thing as a power of inherent sovereignty in the government of the United States.
    There is no federation of independent countries on the face of the earth that is sovereign. This includes the U.K., Canada, Mexico or the Swiss federation. Not even Russia is sovereign.

    sovereign (adj.)

    early 14c., "great, superior, supreme," from Old French soverain "highest, supreme, chief," from Vulgar Latin *superanus "chief, principal" (source also of Spanish soberano, Italian soprano), from Latin super "over" (from PIE root *uper "over"). Spelling influenced by folk-etymology association with reign. Milton spelled it sovran, as though from Italian sovrano. Of remedies or medicines, "potent in a high degree," from late 14c.

    sovereign (n.)

    late 13c., "superior, ruler, master," from Old French soverain "sovereign, lord, ruler," noun use of adjective meaning "highest, supreme, chief" (see sovereign (adj.)). Meaning "gold coin worth 22s 6d" first recorded late 15c.; value changed 1817 to 1 pound.
    Didn't you ever wonder why the U.S. no longer issues declarations of war? They have to be addressed to SOVEREIGNS. There are none left. All they can do is perform police actions against miscreant dictators and concepts like poverty and drugs.

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by ziero0 View Post
    There is no federation of independent countries on the face of the earth that is sovereign. This includes the U.K., Canada, Mexico or the Swiss federation. Not even Russia is sovereign.



    Didn't you ever wonder why the U.S. no longer issues declarations of war? They have to be addressed to SOVEREIGNS. There are none left. All they can do is perform police actions against miscreant dictators and concepts like poverty and drugs.
    I don't wonder at all, the people lost the Republic that was given to them and it was stolen by Lincoln. It's why he is so celebrated in D.C. he's the one that gave them the power they currently wield unchallenged by the union member states that have forgotten their own power.
    "Paper is poverty, it is only the ghost of money, and not money itself." --Thomas Jefferson to Edward Carrington, 1788
    "The greatest threat to the state is when the people figure out they can exist without them." - Twisted Titan
    "Some Libertarians are born, the government makes the rest."
    "Voting is nothing more than a slaves suggestion box, voting on a new master every few years does not make you free."

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    Re: The Supreme Court Is Much Too Powerful

    Quote Originally Posted by Ares View Post
    the people lost the Republic....
    What someone has lost or abandoned another might take up. In law it is called abating a nuisance. You should place a legal notice in a newspaper of county wide circulation advising whoever lost the thing (or abandoned it) who has it and that they might have it back upon paying costs. After a period of time the costs might become more valuable than the thing seized so equity creates a situation that makes redeeming the thing impractical. So much so that in things that don't exist you might have better luck creating them again from scratch.

    The problem is that the thing you are attempting to re-create requires a sovereign for you to either take it from or to grant it to you. The problem is not frivolous or trivial.

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