Liberals' worst nightmare: a second supreme court pick for Trump

[Starlight]

Fun fact: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were all passed unanimously by the Senate. That happening nowadays seems inconceivable.

Well one of them is dead, and it seems unlikely a dead person would get many votes if they were nominated.

[NorrinRadd]

It could be even more profound if he were to replace Justice Ginsburg^[1], who is considerably more liberal and while virtually all other Republicans would concede to the left's demands that a liberal must be replaced by a liberal or at the very least moderate-left, Trump could well be someone who'll disagree and name who he wants.






1. Who is 85 and has beaten cancer twice (colon in 99 and pancreatic in 09)

That would be an interesting place to renominate Merrick Garland, if for no other reason than to see the reactions all around.

[Terraceth]

Well one of them is dead, and it seems unlikely a dead person would get many votes if they were nominated.

Heh. Though I was actually referring more to the general idea of anyone getting a unanimous vote, not just those four.

[KingsGambit]

We all agree the system could be better but we still have to play the game with the rules we have.

[Starlight]

We all agree the system could be better but we still have to play the game with the rules we have.

Well except when the rules get changed like "presidents can't nominate justices in their final year" or "the Senate doesn't have to perform the constitutionally required nominee consideration process if it doesn't feel like it" or "nominees can no longer be filibustered" or "SCOTUS can have more than 9 justices" etc.

[Terraceth]

This is something I have been thinking about lately. In my country and in the UK, the elected politicians rather than the judiciary are the highest branch of government - the courts are unable to declare a law "unconstitutional" and overturn it.

It seems to me that was also probably the intent of most of the US founding fathers - they assumed that the final interpreters of the constitution would be Congress who would decide whether or not they thought a law was constitutional as part of their deliberations on it before passing it. They did not think it would be up to the smaller panel of unelected Supreme Court justices to decide the question of constitutionality or to overturn laws passed by congress. So when SCOTUS subsequently appointed itself to that role and gave itself that power (Marbury v. Madison) this upset quite a lot of people.

I'm not sure what the founding fathers in general thought of judicial review (the ability of courts to determine if something is constitutional), but we know at least some of them believed in it even before the constitution was passed. The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay to try to persuade people that the Constitution was a good idea, explicitly gives support for the courts to have the ability to decide if laws are constitutional, such as this snippet from #78:

"The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Alexander Hamilton wrote that section (in fact, he wrote pretty much the whole part relating to the judiciary), so that's one founding father who explicitly stated the power of judicial review, and this opinion was therefore presumably shared by James Madison and John Jay. In fact, James Madison personally made the point in a constitutional convention debate, where he stated "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void". Well, technically this was a paraphrasing by the person taking the minutes of the meeting, so it isn't his exact words, but the substance is clearly supporting judicial review.

Furthermore, judicial review actually was used by the Supreme Court seven years before Marbury v. Madison, in Hylton v. United States (1796). The court simply had no objection to the law in that case, which is why the later Marbury v. Madison gets all the attention.

[Roy]

Well one of them is dead, and it seems unlikely a dead person would get many votes if they were nominated.

Not that unlikely .

[Starlight]

I'm not sure what the founding fathers in general thought of judicial review (the ability of courts to determine if something is constitutional), but we know at least some of them believed in it even before the constitution was passed. The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay to try to persuade people that the Constitution was a good idea, explicitly gives support for the courts to have the ability to decide if laws are constitutional, such as this snippet from #78:

"The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Alexander Hamilton wrote that section (in fact, he wrote pretty much the whole part relating to the judiciary), so that's one founding father who explicitly stated the power of judicial review, and this opinion was therefore presumably shared by James Madison and John Jay. In fact, James Madison personally made the point in a constitutional convention debate, where he stated "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void". Well, technically this was a paraphrasing by the person taking the minutes of the meeting, so it isn't his exact words, but the substance is clearly supporting judicial review.

Furthermore, judicial review actually was used by the Supreme Court seven years before Marbury v. Madison, in Hylton v. United States (1796). The court simply had no objection to the law in that case, which is why the later Marbury v. Madison gets all the attention.

Thomas Jefferson seems to have been one of the bigger dissidents against judicial supremacy:

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." - Thomas Jefferson, Letter to William Jarvis, 1820

[carpedm9587]

Fun fact: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were all passed unanimously by the Senate. That happening nowadays seems inconceivable.

[rogue06]

Thomas Jefferson seems to have been one of the bigger dissidents against judicial supremacy:

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." - Thomas Jefferson, Letter to William Jarvis, 1820

For a bit of context, in an earlier letter (1804) Jefferson told Abigail Adams that, in the context of the Sedition Act, that he believed that judiciary had the right to review the constitutionality of laws but also thought that the president should also have the right to do so as well.

[rogue06]

I'm not sure what the founding fathers in general thought of judicial review (the ability of courts to determine if something is constitutional), but we know at least some of them believed in it even before the constitution was passed. The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay to try to persuade people that the Constitution was a good idea, explicitly gives support for the courts to have the ability to decide if laws are constitutional, such as this snippet from #78:

"The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Alexander Hamilton wrote that section (in fact, he wrote pretty much the whole part relating to the judiciary), so that's one founding father who explicitly stated the power of judicial review, and this opinion was therefore presumably shared by James Madison and John Jay. In fact, James Madison personally made the point in a constitutional convention debate, where he stated "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void". Well, technically this was a paraphrasing by the person taking the minutes of the meeting, so it isn't his exact words, but the substance is clearly supporting judicial review.

Furthermore, judicial review actually was used by the Supreme Court seven years before Marbury v. Madison, in Hylton v. United States (1796). The court simply had no objection to the law in that case, which is why the later Marbury v. Madison gets all the attention.

Records from the 1787 Constitutional Convention in Philadelphia shows that fifteen delegates from nine of the thirteen states discussed judicial review in nearly two dozen instances. In fact, the understanding that judicial review would exist under the proposed Constitution was a decisive factor for several decisions including the rejection of the proposal to give Congress veto power over state laws.

Only two delegates, John Dickinson and John Mercer, even questioned the idea of judicial review, but neither proposed a provision prohibiting it and even they agreed, during the ratification, that the Constitution would authorize judicial review of federal statutes.

Also an examination of the records of the state ratification conventions demonstrates that it was accepted that the Constitution established judicial review.

It should be noted that Saikrishna B. Prakasht and John C. Yoo in their "The Origins of Judicial Review" published in the Chicago Law Review on the 200th Anniversary of Marbury v Madison noted that:

"Outside the conventions, Americans confirmed that the Constitution authorized judicial review in pamphlets and in newspapers across twelve states. Federalists and Anti-Federalists alike understood that courts would be able to ignore unconstitutional federal statutes. Just as significant, no scholar has been able to cite any Federalist or Anti-Federalist who declared that the Constitution did not permit judicial review of federal legislation. Though people disagreed on much else about the Constitution, all those who addressed judicial review agreed that the Constitution authorized the judiciary to ignore unconstitutional federal statutes."

[*Emphasis in the original*]

[Faber]

It could be even more profound if he were to replace Justice Ginsburg^[1], who is considerably more liberal and while virtually all other Republicans would concede to the left's demands that a liberal must be replaced by a liberal or at the very least moderate-left, Trump could well be someone who'll disagree and name who he wants.

1. Who is 85 and has beaten cancer twice (colon in 99 and pancreatic in 09)

Didn't she promise that she would move to New Zealand if Donald Trump won the election? What is she waiting for?

[rogue06]

Didn't she promise that she would move to New Zealand if Donald Trump won the election? What is she waiting for?

She was of course only joking

[Sparko]

[carpedm9587]

Didn't she promise that she would move to New Zealand if Donald Trump won the election? What is she waiting for?

That was me! But not for the first election (though I seriously debated it). It remains highly likely if he gets re-elected, however.