Enforcing the Constitution
I have met this man on several occasions. He is one of the most unimposing and quiet people I have ever run across. You would never know he is one of the most knowledgeable and capable constitutional attorneys in the nation having testified to Congress on SCOTUS appointments.
Erwin Chemerinsky: In Marbury vs. Madison, in 1803, the Supreme Court declared that it is “the province and duty of the judicial department to say what the law is.”Quoting Chief Justice John Marshall from Marbury vs. Madison (1803) footnote 742, the Court declared:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
Justice Elena Kagan in minority dissent:
Justice Elena Kagan wrote: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
The Supreme Court just abdicated its most important role: enforcing the Constitution
Justice Kagan wrote : “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
I doubt that this was the first time. Based on the records, the justices of the early US Supreme Court were much less likely to rule on constitutional issues.
From 1789 to 2006 the SCOTUS ruled 182 Acts of the US Congress to be unconstitutional. It took 162 years to find the first half of those to be ruled unconstitutional and only 55 years for the second half.
From 1789 to 2017 the SCOTUS ruled 968 state laws to be unconstitutional. It took 165 years to find the first half of those to be unconstitutional and only 63 years for the second half.
The plain truth is that we have been living in a time of an extremely active US Supreme Court where constitutional issues might be involved. and none of its members are elected.
Which is worse, having ELECTED representatives writing districting laws which favor their party or having APPOINTED justices rule that one law after another is unconstitutional?
Justice Roberts wrote: “The States, for example, are actively addressing the issue on a number of fronts.”
Since the SCOTUS has declined to rule on the constitutionality of this case, I assume that they are prepared to accept the judgement of the state courts.
So gerrymandering cases will end up in a state Supreme Court. In Kentucky those justices are elected.
Did you read the LA Time’s article written by Erwin? I have known Erwin for quite a few years. I also write him from time to time when I have a question. He answers or directs me to some reading.
The question here is not whether a law or action is constitutional or unconstitutional. Your references do not support your reasoning of a court not deciding. The Robert’s court has decided not to decide and has abdicated its responsibility in determining constitutionality. Instead of allowing lower court decisions to stand as it has in many previous decisions, it now disallows any federal court to decide also.
The “plain truth” is SCOTUS and the other federal courts are the third branch of the government which can decide whether a president’s actions are unconstitutional or constitutional the same as it can decide for Congressional acts. What we have today is one man blocking Senatorial actions in the legislature and conservative ideology in SCOTUS blocking decisions. This was not the intent of the founding fathers when the three branches were created as checks and balances to each other.
The states are addressing the issue on a number of fronts only to have the various political legislatures block the decisions of the constituents garnered through referendums.
Erwin goes on:
Your LA Times link was for the Erwin Chemerinsky article was behind a paywall but I found another way to get at it.
I understand the SCOTUS interpretation of the constitution in the 1803 Marbury vs Madison case and what it meant. It opened the door to outright abuse of representative government. It took over 150 years for the abuse to become what it is today.
OUR ELECTED REPRESENTATIVES CAN PASS ANY LAWS THAT THEY WANT AND THE PRESIDENT CAN SIGN THEM, BUT SCOTUS OR ANY FEDERAL JUDGE CAN RULE THEM TO BE UNCONSTITUTIONAL.
Roberts wrote: “What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years.”
Roberts wrote: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate politi-cal power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
I understand that if Justice Kagan had the vote from one more justice, THEN THE COURT WOULD HAVE FOUND CONSTITUIONAL GROUNDS TO STRIKE DOWN THE GERRYMANDERED DISTRICTING. She didn’t.
Conservatives now control the US Supreme Court and that has had consequences.
IF YOU BELIEVE THAT THE SCOTUS HAS THE EXCLUSIVE RIGHT TO DECLARE LAWS UNCONSTITUTIONAL. THEN IT ALSO HAS THE RIGHT TO LEAVE THOSE LAWS IN PLACE. Neither the Executive nor the Legislative branches can interfere with their decision. That is not good or bad, it is just a fact.
There will be long messy arguments about gerrymandering in the state courts. Those arguments will be done in public and may affect elections over the long run.
Representative Pelosi (D) controls the House and Senator McConnell (R) controls the Senate.
That is not good or bad, it is just a fact. It is too bad that partisanship has become so bitter that compromise is almost impossible.
I am a registered Independent because I could never agree with many of the Democrat’s policies and I could never agree with many of the Republican’s policies.
As to the power of the SCOTUS, I would prefer a constitutional amendment which would require at least two branches to rule that a law is unconstitutional. It took two branches to pass the laws.
Seems to me every time we run into one of these “states’ rights” moments, disaster follows.
Erwin did not cite this as a states right issue. Indeed, he did claim, SCOTUS did have the right to decide on the constitutionality of the gerrymandering. Roberts is abdicating SCOTUS’s responsibly to “say what the law is.”
The court did not decide. Jim is wrong.
Oh, I don’t doubt Jim is wrong. And I am aware that Erwin did not address this as a states right issue, but the Supreme Court in abdicating their duty made it a states rights issue.
This is not about states rights. Or any other trumped up excuse!
This is about the right of the US Supreme Court to deliver whatever judgement that they choose!
This was true for the liberal leaning US Supreme Court, and it is true of the current conservative leaning US Supreme Court.
If you believe that what the current US Supreme Court did was illegal then contact your representatives and ask them to impeach Chief Justice Roberts.
If you believe that the US Supreme Court’s action was merely inappropriate, then pour a glass of wine and reflect on the unfairness of life.
1. I already said it is not about states rights.
2. SCOTUS did not decide or deliver a judgment on the issues at hand.
3. “the province and duty of the judicial department to say what the law is (Chief Justice John Marshall in Marbury vs Madison).” Erwin: It is wrong for the court to say that the federal judiciary cannot hear constitutional challenges to a practice which so dramatically undermines our constitutional democracy.
4. It is for the SCOTUS to hear challenges to the Constitution and established law or precedent and decide on the merits of those challenges and whether they are constitutional.
You are just babbling.