The Roe Countdown

[crescent]

Don't quote me on this,

TOO LATE! The forum has a quote function.

but I don't think they can. I don't know that SCOTUS has the power to overturn laws passed by the entirety of the legislature since they decide what is law.

The legislature and President can decide what it law.

But the Supreme Court is the sole arbitrator of what is or is not Constitutional and can overturn any law they feel to be unconstitutional.

There are a few conservatives who used feel otherwise, but they all quieted down or changed their tunes once the SC was clearly flipped to a conservative majority. The closest you'll get now is some conservative legal theory that supposes that the constitution only gives the SC jurisdiction over federal laws and regulations, but not State or County laws. But that theory has little traction outside the Bundy Family/Sagebrush Rebellion movement.

 

[JoeMorgue]

Which is why expanding the court will not work. The second there's a Sane majority the Deathcult will suddenly switch gears back to "Oh but the SCOTUS shouldn't have this much power and checks and balances and tyranny of minority/majority (neither concept makes sense so just pick one)" and the Democrats will fall for it.

This is not a political battle. It's a battle of who's the most stubborn and who has the greatest force of will and the Democrats loose both of those.

 

[plague311]

You don’t think it possible for the US Supreme Court to rule a law passed by both houses and signed by the President to be unconstitutional?

It is, unequivocally. It has been since Mayberry v Madison.

*sigh*

Yes, I understand you guys are telling me I'm wrong. I would like an example of how I was wrong, but Marbury seems to be arguing about an appointment rather than the entirety of the law.

So, I'm wrong. I understand that now. Thank you. Is there another case than that one that illustrates this point? That one is entirely too confusing on how it relates to something like abortion rights.

 

[JoeMorgue]

I don't what you're asking for. An example that Republicans ignore rules when it suits them and get away with it?

 

[cosmicaug]

I'm not so sure about that. The next hearings aren't for a couple weeks, giving them time to be the headline again.

More importantly, it's Drumpf's fault, second only to McConnell. People aren't going to completely ignore that.

What might just happen, along the lines of 'be careful what you wish for', are political upsets in some of these state houses this Nov.

Not really. I'd love to think that folk will riot over this. It's not going to happen. We've been getting used to the idea over the intervening weeks between the leak and today and this was not much of a shock. One might even argue that the time for that was weeks ago (and I am sure that many will) However, the real reason why this is not going to happen is that we are Americans. We are not like the French and we don't come out into the streets over stuff like this these days. We have other **** to worry about (like the price of gasoline).

As for the ballot box, nah! That's not going to happen either. Whoever would vote against Republicans because of this already has been voting against Republicans because of this; and whoever has not been voting against Republicans because of this despite supporting women's health will find more ways to rationalize to continue not voting against Republicans because of this.

 

[plague311]

Because if the way I'm understanding is true then this country really is ****** because it doesn't matter what Congress does. SCOTUS is the ultimate and final word and, in essence, runs this country. If they say no, then it's no.

So that's just it? We're done then. All over, there's no ******* way abortion can get passed at a federal level because the SCOTUS will tell the entirety of government to **** themselves? Then what's the ******* point of congress? lol. Just have the SCOTUS run the country. I have to be missing something here.

I don't what you're asking for. An example that Republicans ignore rules when it suits them and get away with it?

No, I get that. I would just like an instance (maybe something from the last 50-60 years) where the SCOTUS overturned a law that passed through all 3 branches of the government. That's it. Marbury doesn't make sense to me. I'm sure others see the connection, but I'm not especially adept at law. I was hoping someone could explain it easier, but that might not be possible here.

 

[crescent]

Yes, I see you guys saying this, I'm asking for some form of example. Nothing is coming to mind where all 3 branches of legislature passed something and then SCOTUS said "no, you can't do that".

Here's a list: Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court

Sort fifth column by "Federal". There are dozens, if not a hundred or more of Federal laws wholly or partly overturned by the SC. Laws - not executive orders or regulations, but actual laws that went through congress and got signed into law. Federal law.

(ETA: I counted 95, but might be off a bit, it is hard to count while scrolling like that).

More recent ones: Defense of Marriage Act, Stolen Valor Act, many portions of Affordable Care Act.

 

[sarge]

Is that comparable to this case? Reading through it, it sounds like it's more about a specific appointment than the law being overturned. Perhaps break it down better for me? Like I said, I don't understand all this stuff like you may. Pretend I'm a dumb ass, it shouldn't be hard.

Mayberry v Madison established that a law, duly passed by the house and senate and signed by the President is void if the law conflicts with the constitution.

So, what question are you asking? If it is “can the Supremes overturn a federal law?” then the answer is an unequivocal yes.

If the question is ‘under what grounds would the SC conceivably determine that a law allowing abortion is unconstitutional?” then the answer is I don’t know. I would have to speculate. But one thing is absolute…..should the SC do so, that would be it for that law. It would be unenforceable without leading to a constitutional crisis.

 

[plague311]

Here's a list: Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court

Sort fifth column by "Federal". There are dozens, if not a hundred or more of Federal laws wholly or partly overturned by the SC. Laws - not executive orders or regulations, but actual laws that went through congress and got signed into law. Federal law.

(ETA: I counted 95, but might be off a bit, it is hard to count while scrolling like that).

Thank you, that's all I was looking for.

 

[cosmicaug]

Don't quote me on this, but I don't think they can. I don't know that SCOTUS has the power to overturn laws passed by the entirety of the legislature since they decide what is law.

There's no one weird trick here (like following the Constitution or whatever). This does not even address whether the entirety of the legislature would even do anything like what is suggested in the first place (spoiler: they would not —heck, in the Senate, Democrats probably wouldn't even be able to get Manchin to go along with this).

 

[Stacyhs]

Yeah, everyone is super shocked that conservatives lied. I know I'm completely blown away.

Er wait...no. I'm the opposite of that. I expect conservatives to lie about their intentions to get power and then abuse that power as soon as possible.

Yep...they lied through their damn mouths. Shocking, ain't it? And the right-wing hypocrites have the nerve to b**** about 'liberal activist' judges.

 

[Suddenly]

Is that comparable to this case? Reading through it, it sounds like it's more about a specific appointment than the law being overturned. Perhaps break it down better for me? Like I said, I don't understand all this stuff like you may. Pretend I'm a dumb ass, it shouldn't be hard.

This is how it has worked since Marbury.

Technically what the Court does is simply interpret the law under the principle that the Constitution is superior to a statute (or other form of positive law) and that when they contradict the Constitution controls and the statute is without force. This also applies to executive branch actions.

That's the gist of Marbury, and that's how it has worked since. Marbury was a controversial decision at the time. Thomas Jefferson opposed it taking the position that each branch was responsible for deciding how to follow the constitution rather than the court making rulings as to whether the executive or legislature was acting within the constitution.


That's judicial review in a nutshell. We talk of the court "overturning" a statute but really they are just precluding the enforcement of same because it conflicts with the constitution. The law stays on the books.

 

[Stacyhs]

In his concurrence, [Justice Clarence] Thomas wrote that the court should now "reconsider" its decisions that found a right to contraception, sex between consenting adult men, and same-sex marriage — and "correct the error" made in cases like "Griswold, Lawerence and Obergefell."

See post 2000.

https://www.salon.com/2022/06/24/in-a-6-3-ruling-strikes-down-roe-v-wade-with-dobbs-decision/

Clarence Thomas is a POS.

 

[plague311]

This is how it has worked since Marbury.

Technically what the Court does is simply interpret the law under the principle that the Constitution is superior to a statute (or other form of positive law) and that when they contradict the Constitution controls and the statute is without force. This also applies to executive branch actions.

That's the gist of Marbury, and that's how it has worked since. Marbury was a controversial decision at the time. Thomas Jefferson opposed it taking the position that each branch was responsible for deciding how to follow the constitution rather than the court making rulings as to whether the executive or legislature was acting within the constitution.


That's judicial review in a nutshell. We talk of the court "overturning" a statute but really they are just precluding the enforcement of same because it conflicts with the constitution. The law stays on the books.

That makes a lot more sense. Thanks for the clarification.

 

[Regnad Kcin]

Just remember, kids:

1) It doesn’t matter who you vote for.
2) All politicians are corrupt.
3) They’re all the same.

Hmm, upon reflection, #1 and 3 are basically the same. So:

1) It doesn’t matter who you vote for, both parties are the same.
2) All politicians are corrupt.
3) Anyway, stare decis.

Does that about cover it, my apathetic friends?

 

[Brainster]

Is that comparable to this case? Reading through it, it sounds like it's more about a specific appointment than the law being overturned. Perhaps break it down better for me? Like I said, I don't understand all this stuff like you may. Pretend I'm a dumb ass, it shouldn't be hard.

It's generally considered the most important constitutional law case ever because it set the ground rules. The court ruled in Marbury that Congress and the President could not pass a law that the court felt violated the US Constitution. This established the principle of judicial review of all laws; essentially the Supreme Court is the final arbiter of what is legal under the Constitution and what is illegal.

The irony was that while the law in question supposedly gave the Supreme Court additional powers (jurisdiction over this particular case), by rejecting the law the Court gave itself dramatically expanded powers.

Now you may not like judicial review; in that case you'd be in agreement with those silly Texas Republicans (in addition to suggesting a vote on secession, they mentioned their opposition to judicial review).

 

[TragicMonkey]

This is how it has worked since Marbury.

Technically what the Court does is simply interpret the law under the principle that the Constitution is superior to a statute (or other form of positive law) and that when they contradict the Constitution controls and the statute is without force. This also applies to executive branch actions.

That's the gist of Marbury, and that's how it has worked since. Marbury was a controversial decision at the time. Thomas Jefferson opposed it taking the position that each branch was responsible for deciding how to follow the constitution rather than the court making rulings as to whether the executive or legislature was acting within the constitution.


That's judicial review in a nutshell. We talk of the court "overturning" a statute but really they are just precluding the enforcement of same because it conflicts with the constitution. The law stays on the books.

Precisely. And the way to fix a law that the legislative and executive branches passed but the judicial says is unconstitutional is to put it into the constitution. Once it's there the SC can't say part of the constitution is unconstitutional.

Not that I expect our current crop of politicians or the public they scam to actually consider adding a series of constitutional amendments enumerating and clarifying specific rights in clear language. That would be the action taken by sensible leadership of a sensible people, and that is not what we have. It would probably be easier to start over from scratch than to amend the current constitution in that way.

 

[Stacyhs]

The January 6 Commission can't undue the nominations of Trump's 3 toadies no matter what they prove Trump did.

The 6-3 Conservative Majority isn't going away in our lifetimes.

Trump and McConnell have done more damage to this country than any other administration in America's history. I've never despised two people more.

 

[Suddenly]

Mayberry v Madison established that a law, duly passed by the house and senate and signed by the President is void if the law conflicts with the constitution.

So, what question are you asking? If it is “can the Supremes overturn a federal law?” then the answer is an unequivocal yes.

If the question is ‘under what grounds would the SC conceivably determine that a law allowing abortion is unconstitutional?” then the answer is I don’t know. I would have to speculate. But one thing is absolute…..should the SC do so, that would be it for that law. It would be unenforceable without leading to a constitutional crisis.

The most obvious way would be to find the law is not within the powers of congress. All federal laws need constitutional authorization. A law legalizing abortion would almost certainly use the interstate commerce clause as justification (the vast majority of these sorts of laws including the civil rights act of 1964 uses this as their authorization).

One of the missions of the present majority is to weaken the control of the Feds in general, and "abortion is not commerce" is a pretty juicy rhetorical hook to selectively gut the commerce clause.

More grim would be a finding that abortion itself is unconstitutional as it violates the rights of the unborn.

 

[beachnut]

Not a surprise