"If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities." ??????
Since when is it the responsibility of the court to ensure universal healthcare, redress climate change, and realize egalitarianism? Isn't this the job of the legislature?
"If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities." ??????
Since when is it the responsibility of the court to ensure universal healthcare, redress climate change, and realize egalitarianism? Isn't this the job of the legislature?
This last claim makes a mockery of the author's prior argument to depoliticize the court.
You're committing a logical falacy here. Saying the court shouldn't "make it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities" is not the same thing as saying it should "ensure" those things. The whole point of the article is that courts should show discretion in interfering with legislatures. Of course the courts don't exist to ensure these things - legislatures do, and they should be allowed to do their jobs to the extent that they don't unduly infringe on individual liberties. Courts and judicial review exist to protect people's fundamental rights against the "tyranny of the majority" - not to overturn legislation which represents the will of the people and their prerogative to address matters of general concern to society.
Perhaps "ensure" was inappropriate choice of words. We agree that "courts and judicial review exist to protect . . . . against "tyranny of the majority". However, courts also exist to honor the constitution, which means that sometimes the court should overturn legislation that represented the will of the people.
The article's suggesting that the court not stand in the way of the people's wills on these issues misses 2 points (a) it is not at all clear that there is as yet a common "will of the people" as regards climate change, universal healthcare, etc. and (b) "will-of-the-people" legislation may have unconstitutional features that warrant court overturning.
As to point a), I think you should check some recent polls. I believe you will find that a strong majority of Americans do, in fact, support efforts to curb climate change. And while that may be a more recent development, the idea of *some* sort of "universal health care" has been wildly popular for some time. Yes, the details matter - people largely don't want Bernie Sanders' compulsory Medicare-for-all, but they generally do favor Medicare-for-more or Medicare-for-whomever-wants-it. And though it is definitely a reversal from the opinion of 10 years ago, Americans now do largely want to preserve the ACA.
As to point b), we both agree that the "will of the people", i.e. the majority, is not absolute. That's where people's rights come into play, which limits the laws that Congress and state legislatures can pass. Still, there's a broad universe of legitimate legislation since the Constitution prohibits rather than allows on this point. I'm willing to grant that Roe v. Wade may have been an overreach, and perhaps other decisions that liberals prize, if there is indeed no Constitutional basis for taking such things out of the hands of (or placing them in the hands of) legislatures. How do you feel about, say, "Citizens United"? Was that not an example of the courts invalidating a legitimate law with reasonable provisions to ensure more fair and democratic elections? Or "Rucho v. Common Cause": should the court really have been prevented from stepping in to prevent blatant abuse of legislative power to further entrench political power? Is there any way conservatives and liberals can come to agreements on what constitutes judicial overreach, independent of our desired political outcomes?
On point a) climate change. Polling people on belief in / support for mitigation of climate change is notoriously tricky. It's like asking people whether they like apple pie. Nearly everyone says yes, until you tell them that it costs $1,000 a slice. Polls, e.g. https://www.nbcnews.com/news/us-news/more-americans-believe-global-warming-they-won-t-pay-much-n962001, indicate that folks aren't willing to pay more than ~$100/year to mitigate climate change. Support evaporates above that.
Similar polling finds that people support universal healthcare (when characterized in certain ways, e.g., covers pre-existing conditions and caps out-of-pocket), yet reject it when they learn that they'll loose access to their preferred corporate plan and choice of physician.
My personal views on Citizens United are quite conflicted, so I won't comment.
My general view is that the congress has abdicated way to much power to both the executive branch administrative authorities and to the federal courts. The former results in legislation by un-elected/mostly unaccountable administrators, the latter politicizes the judiciary. I'd much prefer that the supreme court circumscribe the rule making (aka legislative) authority of the executive administrative offices AND punt contentious political issues, e.g., abortion, same-sex marriage, back to the legislature - possibly to state legislatures. Nancy Pelosi's comment on the ACA - that "we need to pass it to learn what's in it" is a great example of abdicating lawmaking authority to the administrative branch. A court review of Chevron Deference would be nice.
No, that is not his point. His point is, if they overide what is done legislatively, (as in, say, universal healthcare) THEN go ahead and appoint new judges.
It is not up to the judges to determine how we provide for the general welfare. It is up to the legislative body. If they can't refrain from undoing the will of the people, thru their representatives, then we need to reform the court.
There are other ways to reform the court besides packing it.
I understood his point. Mine is that the "will of the people" does not always prevail. By your reasoning
(a) law = what the legislature passes (and Pres. approves),
(b) what the legislature passes = the will of the people, and
(c) the supreme court should never overturn the will of the people
Then there would be no purpose for the supreme court - as by definition all law is legitimate. What matters is not whether a law = "will-of-the-people", rather what matters is whether the law is constitutional.
I understand. But my broader point is that they justices contort themselves to find things "unconstitutional" just because they don't like the politics of the party that passed the legislation.
Obamacare was, and is, constitutional. But so many right wing judges tried their hardest to find it "unconstitutional". They also tried it to undo social security and medicare the same way.
The Court exceeds its authority if it makes anything not barred by the Constitution "impossible." That includes legislation "to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities."
"If the Court makes it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities." ??????
Since when is it the responsibility of the court to ensure universal healthcare, redress climate change, and realize egalitarianism? Isn't this the job of the legislature?
This last claim makes a mockery of the author's prior argument to depoliticize the court.
You're committing a logical falacy here. Saying the court shouldn't "make it impossible to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities" is not the same thing as saying it should "ensure" those things. The whole point of the article is that courts should show discretion in interfering with legislatures. Of course the courts don't exist to ensure these things - legislatures do, and they should be allowed to do their jobs to the extent that they don't unduly infringe on individual liberties. Courts and judicial review exist to protect people's fundamental rights against the "tyranny of the majority" - not to overturn legislation which represents the will of the people and their prerogative to address matters of general concern to society.
Perhaps "ensure" was inappropriate choice of words. We agree that "courts and judicial review exist to protect . . . . against "tyranny of the majority". However, courts also exist to honor the constitution, which means that sometimes the court should overturn legislation that represented the will of the people.
The article's suggesting that the court not stand in the way of the people's wills on these issues misses 2 points (a) it is not at all clear that there is as yet a common "will of the people" as regards climate change, universal healthcare, etc. and (b) "will-of-the-people" legislation may have unconstitutional features that warrant court overturning.
As to point a), I think you should check some recent polls. I believe you will find that a strong majority of Americans do, in fact, support efforts to curb climate change. And while that may be a more recent development, the idea of *some* sort of "universal health care" has been wildly popular for some time. Yes, the details matter - people largely don't want Bernie Sanders' compulsory Medicare-for-all, but they generally do favor Medicare-for-more or Medicare-for-whomever-wants-it. And though it is definitely a reversal from the opinion of 10 years ago, Americans now do largely want to preserve the ACA.
As to point b), we both agree that the "will of the people", i.e. the majority, is not absolute. That's where people's rights come into play, which limits the laws that Congress and state legislatures can pass. Still, there's a broad universe of legitimate legislation since the Constitution prohibits rather than allows on this point. I'm willing to grant that Roe v. Wade may have been an overreach, and perhaps other decisions that liberals prize, if there is indeed no Constitutional basis for taking such things out of the hands of (or placing them in the hands of) legislatures. How do you feel about, say, "Citizens United"? Was that not an example of the courts invalidating a legitimate law with reasonable provisions to ensure more fair and democratic elections? Or "Rucho v. Common Cause": should the court really have been prevented from stepping in to prevent blatant abuse of legislative power to further entrench political power? Is there any way conservatives and liberals can come to agreements on what constitutes judicial overreach, independent of our desired political outcomes?
On point a) climate change. Polling people on belief in / support for mitigation of climate change is notoriously tricky. It's like asking people whether they like apple pie. Nearly everyone says yes, until you tell them that it costs $1,000 a slice. Polls, e.g. https://www.nbcnews.com/news/us-news/more-americans-believe-global-warming-they-won-t-pay-much-n962001, indicate that folks aren't willing to pay more than ~$100/year to mitigate climate change. Support evaporates above that.
Similar polling finds that people support universal healthcare (when characterized in certain ways, e.g., covers pre-existing conditions and caps out-of-pocket), yet reject it when they learn that they'll loose access to their preferred corporate plan and choice of physician.
My personal views on Citizens United are quite conflicted, so I won't comment.
My general view is that the congress has abdicated way to much power to both the executive branch administrative authorities and to the federal courts. The former results in legislation by un-elected/mostly unaccountable administrators, the latter politicizes the judiciary. I'd much prefer that the supreme court circumscribe the rule making (aka legislative) authority of the executive administrative offices AND punt contentious political issues, e.g., abortion, same-sex marriage, back to the legislature - possibly to state legislatures. Nancy Pelosi's comment on the ACA - that "we need to pass it to learn what's in it" is a great example of abdicating lawmaking authority to the administrative branch. A court review of Chevron Deference would be nice.
Agreed that the courts should "punt" on contentious issues. Just don't take it up at all. Let the voters decide.
No, that is not his point. His point is, if they overide what is done legislatively, (as in, say, universal healthcare) THEN go ahead and appoint new judges.
It is not up to the judges to determine how we provide for the general welfare. It is up to the legislative body. If they can't refrain from undoing the will of the people, thru their representatives, then we need to reform the court.
There are other ways to reform the court besides packing it.
I understood his point. Mine is that the "will of the people" does not always prevail. By your reasoning
(a) law = what the legislature passes (and Pres. approves),
(b) what the legislature passes = the will of the people, and
(c) the supreme court should never overturn the will of the people
Then there would be no purpose for the supreme court - as by definition all law is legitimate. What matters is not whether a law = "will-of-the-people", rather what matters is whether the law is constitutional.
I understand. But my broader point is that they justices contort themselves to find things "unconstitutional" just because they don't like the politics of the party that passed the legislation.
Obamacare was, and is, constitutional. But so many right wing judges tried their hardest to find it "unconstitutional". They also tried it to undo social security and medicare the same way.
That is what is wrong.
The Court exceeds its authority if it makes anything not barred by the Constitution "impossible." That includes legislation "to provide universal health care, to deal effectively with climate change, and to reduce social and economic inequalities."