WI: Congress can Trump Supreme Court?

The Supreme Court has been criticized by those on the right (and occasionally by those on the left) as being an unaccountable entity not unlike the kings and emperors of old. What if there is a provision in the Constitution that allows a Congressional super-majority (lets say a minimum 60% vote) to nullify Supreme Court decisions?

Mike Collins said:

The Supreme Court has been criticized by those on the right (and occasionally by those on the left) as being an unaccountable entity not unlike the kings and emperors of old. What if there is a provision in the Constitution that allows a Congressional super-majority (lets say a minimum 60% vote) to nullify Supreme Court decisions?

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The Supreme Court is set up the way it is to remove it from political pressures. To allow Congress to override it would cause it to become a political organ and we would quickly have fallen under tyranny.

Note that Congress CAN trump the SC by passing constitutional amendments.

Congress can trump the Supreme Court through a constitutional amendment process. Yes it takes a while, and also requires a supermajority(2/3), and involves states, but if the issue is important enough, it can be done.

Abdul Hadi Pasha said:

The Supreme Court is set up the way it is to remove it from political pressures. To allow Congress to override it would cause it to become a political organ and we would quickly have fallen under tyranny.

Note that Congress CAN trump the SC by passing constitutional amendments.

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IIRC Andrew Jackson was able to ignore the ruling of the Supreme Court that upheld the rights of the Cherokee Nation. That he could get away with doing this was because the political set-up meant it was more important to have Southern states like Georgia on board, than to care what the minority were going to suffer

Grey Wolf

POD

There is actually a well defined POD for this, Marbury v. Madison (1803) is central to the federal court and the Supreme Court's power as final arbiter of the U.S. Constitution. This case ended up standing for the proposition that the Supreme Court has the 'power of judicial review', if the case had somehow turned differently, then the court might not have had the power.

"IIRC Andrew Jackson was able to ignore the ruling of the Supreme Court that upheld the rights of the Cherokee Nation. That he could get away with doing this was because the political set-up meant it was more important to have Southern states like Georgia on board, than to care what the minority were going to suffer"

No, not really, Grey Wolf. Jackson beat the court in a technically legal fashion. The court simply said that the Cherokee were a sovereign people.

A sovereign people have the right to sell their land. Jackson got a few Cherokee who believed moving west would allow them freedom, and a bunch of faithless drunks, and had them sign a treaty giving up all of their lands. The legitimacy of this couldn't really be challenged, because the Cherokee had no clear central authority to usurp. From any perspective besides that of the Cherokee, it seemed that a random bunch of chiefs and non-chiefs took part in the overall leadership - and it was just such a group that signed.

And obviously, no-one could be bothered to learn the names of the principle leaders, so it was quite a while before anyone realized that few had approved of it.

Not that any of that makes the action any better.

If Congress could automatically trump the SC in the US with the power to specifically overrule unpopular court decisions, or likewise here in Aust our Parliament could automatically overrule HC decisions, then the doctrine of separation of powers which underpins our Anglo system of responsible govt would be dead, and yes indeed, we would be subject to tyranny and the trampling of individual ppl's rights. So in your scenario Congress could've overturned the BROWN v TOPEKA BOARD OF EDUCATION decision due to the influence of conservative white Southerners.

Mike Collins said:

The Supreme Court has been criticized by those on the right (and occasionally by those on the left) as being an unaccountable entity not unlike the kings and emperors of old. What if there is a provision in the Constitution that allows a Congressional super-majority (lets say a minimum 60% vote) to nullify Supreme Court decisions?

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The mechanism already exists, although it has never been used, to date. The Constitution gives Congress the power to determine what types of cases the Supreme Court and other federal courts have jurisdiction to decide. So, for example, there is no reason why Congress could not simply pass a law, for example, stating that federal courts (including the supreme court) shall have no jurisdiction to hear cases involving homosexuality, abortion, or any other of the hot button issues that fill our newspapers and TV broadcasts every day. This would effectively place these issues back in the realm of State action (where I personally think they belong...but that is neither here or there).

These are all true. You all fogot at least two other ways around a Supreme Court decision. If the Supreme Court is merely interpreting a Federal Statute, Congress can revise the law to make it state something contrary to the decision. Another route is FDR's threat of Court packing. When the New Deal era Supreme Court kept invalidating New Deal programs as unconstitutional, President Roosevelt threatened to change the number of authorized Supreme Court justices and keep putting on enough justices to get the results he wanted.

Although these and everyone elses methods exist OTL, they have limits. The first example I cited only applies to statutes. The rest (Court packing, Constitutional ammendments, etc.) are difficult and would probably become contentious. Imagine trying to put an amendment through that would invalidate Roe v. Wade or how about a President (take your pick) trying to pack the Court in anticipation of invalidating the War Powers Act? So what if a simple up or down super majority vote existed (whether wise or not)?

robertp6165 said:

The mechanism already exists, although it has never been used, to date. The Constitution gives Congress the power to determine what types of cases the Supreme Court and other federal courts have jurisdiction to decide. So, for example, there is no reason why Congress could not simply pass a law, for example, stating that federal courts (including the supreme court) shall have no jurisdiction to hear cases involving homosexuality, abortion, or any other of the hot button issues that fill our newspapers and TV broadcasts every day. This would effectively place these issues back in the realm of State action (where I personally think they belong...but that is neither here or there).

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That's not true, because the Supreme Court could just declare such a law was unconstitutional, and they would be right.

Grey Wolf said:

IIRC Andrew Jackson was able to ignore the ruling of the Supreme Court that upheld the rights of the Cherokee Nation. That he could get away with doing this was because the political set-up meant it was more important to have Southern states like Georgia on board, than to care what the minority were going to suffer

Grey Wolf

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Jackson is widely regarded as having set back US industrialization by 50 years by destroying the Bank of the US and trampling on the Constitution by his actions against the Cherokee. He might have been one of our worst presidents, a populist tyrant who is the original model for dystopian visions of American dictatorship.

I would add, though, that I would like to see him get away with that today. FDR almost lost his head for trying to increase the numbers of Supreme Court Justices which is constitutionally permissable.

Fifty years?!? That's incredible! I'm surprised I haven't seen any TLs based on that.

Could you cite a source on that? I want to know more.

Abdul Hadi Pasha said:

That's not true, because the Supreme Court could just declare such a law was unconstitutional, and they would be right.

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Actually, it is true. Article III, Section 2, Clause 2 of the Constitution states..."In all the other Cases before mentioned [in Section 2, Clause 1, which sets forth the various areas over which the Supreme Court shall have jurisdiction], 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."

Therefore, according the Constitution, Congress has the power to regulate, and to create exceptions to, the jurisdiction of the Supreme Court. The Supreme Court has no power to declare laws passed creating such regulations and exceptions unconstitutional. If Congress decided to do so, it could, in fact, pass the very law I earlier described (removing...or "excepting"...cases dealing with things like homosexuality, abortion, etc. from the jurisdiction of the supreme court) and there is nothing the Supreme Court could do about it. Congress's action would be completely constitutional.

Robert: Your interpetation is an interesting one, but it ultimately fails in that the constitutionality of a congressionally mandated exception would have to be ruled upon by the SCOUS, and it is unlikely in the extreme that they would uphold it. Now, it is possible to argue that the SCOUS could voluntarily deny their own standing in a specific case (in fact they do often when they refuse to take a case), but this doesn't grant congress some magic loophole with which to eviscerate Marbury v. Madison. The constitution, for better or for worse, is what the SCOUS says it is, and barring the almost inconceivable trick of getting a future SCOUS to reverse MvM, tht isn't going to change.

robertp6165 said:

Actually, it is true. Article III, Section 2, Clause 2 of the Constitution states..."In all the other Cases before mentioned [in Section 2, Clause 1, which sets forth the various areas over which the Supreme Court shall have jurisdiction], 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."

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But that doesn't apply to the areas of the SC's jurisdiction named in Section 2, Clause 1, which leaves the Supremes with wide powers that Congress cannot limit.

The only point I would make is that the Supreme Court lacks the ability to enforce any of their decisions. The purse-strings are controlled by the House, the power to ratify treaties is in the Senate, and the military power is invested in POTUS. The Jackson-Cherokee case is an example of that point: if very few people in power agree with the decision, it will basically be ignored.

For example, Roe v. Wade. If states decided to outlaw abortion, they could just ignore the ruling and pass laws banning the practice. Provided that there was popular support for banning abortion and the powers-that-be (state gov'ts+POTUS+Congress) accepted the ban, there is nothing the SCOUS could do about it.

Practically all of the decisions, even the unpopular ones, are accepted because no one cares to battle those who either stand with the opinion of the court or those who believe in the authority of the court and who worry about circumventing Constitutional powers. In other words, the powers granted to these institutions depend heavily on the government institutions and citizens buying-in and that individuals in the military and the rest of the government will not "go into business for themselves". POTUS trumps them all with CIC of the military forces of the US; but, if the Generals start a Coup de Tate, that means nothing. It is important for these parties to maintain the Constitutional powers and limits because it it critical to their own power.

Admiral Matt:
L. Neil Smith wrote a series of books set in such a timeline, although the POD was an extra word in the Declaration of Independence.

JClark: Interesting analysis, and one that points to the great strength of our govt, that the branches respect each other's authority, even when it is bitterly opposed...

jclark said:

POTUS trumps them all with CIC of the military forces of the US; but, if the Generals start a Coup de Tate, that means nothing.

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Who is Tate, and what blow is he planning to strike? Should I be concerned?

What if the Framers weren't so concerned about making three branches of government, and made the Senate the Supreme Court?