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Drudge Retort: The Other Side of the News
Friday, July 01, 2022

Jamelle Bouie: [T]he Constitution tells us that the [SCOTUS]' appellate jurisdiction is subject to "such Exceptions" and "under such Regulations" as "the Congress shall make." This is where it gets interesting. The court's appellate jurisdiction accounts for virtually everything it touches.

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And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court's appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, "An interpretation that destroys the very characteristic of the government cannot be just."

The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the "sinister legislation" of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.

They are drastic measures that would break the norms of American politics. They might even spark a constitutional crisis over the power and authority of Congress.

But let's not be nave. The norms of American politics were shattered when Donald Trump organized a conspiracy to subvert the presidential election. They were shattered again when he sent an armed mob of supporters to attack the Capitol and stop Congress from certifying the votes of the Electoral College. And they were shattered one more time in the early hours of the next day, when, even after all that, hundreds of his congressional allies voted to overturn the election.

Maybe it's time for Congressional Democrats to stop focusing on the SCOTUS and start examining the text of the Constitution and use the powers given them to restrain a rogue Court hellbent on upending norms and restricting rights and traditions held for centuries. Bouie ends his screed with a sage, salient admonition:
The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy - and if they don't, whether it is finally time for us to find ones who do.
Amen.

#1 | Posted by tonyroma at 2022-07-01 03:44 PM | Reply

Doesn't that mean that the Senate will let SCOTUS do anything they want?

#2 | Posted by bored at 2022-07-02 01:08 AM | Reply

Just as every cop is a criminal
And all the sinners saints
As heads is tails
Just call me Lucifer
'Cause I'm in need of some restraint

#3 | Posted by Corky at 2022-07-02 01:18 AM | Reply

A journalist opining on legal matters. www.google.com

Pardon me but not impressed.

Can't view the NYT paywalled article but from #1, I have some reservations.

Separation of powers have a role. So too political practicality. I'm sure there are others.

Again, never, ever, rely on journalists to accurately report on legal matters.

#4 | Posted by et_al at 2022-07-02 02:49 AM | Reply | Newsworthy 1

A journalist opining on legal matters.

A citizen opining on the U.S. Constitution - citing it's exact language to delineate the powers invested in the separate branches by its dictates.

Separation of powers have a role.

Which he openly notes, while also noting Congress' expressed right to promote its own power over the SCOTUS' when it comes to certain adjudications of appellate law.

Again, never, ever, rely on journalists to accurately report on legal matters.

Again, never, ever, rely on conclusions made by a lawyer who hasn't even read the details of the argument being made by anyone quoting from the actual U.S. Constitution itself - and its expressed language supported by the same types of historical touchpoints (my imprecise word) currently being used in the majority opinions of today's Court rulings.

#5 | Posted by tonyroma at 2022-07-02 08:25 AM | Reply

One lawyer's point of view who has actually read the article:

Jamie, I love your column today. I am a lawyer who practices in federal court. and I also have some familiarity with the Federalist Papers and the amazing elasticity of our wonderful Constitution.

Your suggestions are spot on.

www.nytimes.com

Thank you, Mr. Bouie, for reminding us that it is Congress and the Federal courts that have failed to use the constitution in order to preserve democracy, rather than the constitution itself that has forced its degradation on us. How can gerrymandering and other vote-dilution and denying tactics R's have been pursuing so vigorously and successfully in the red states to entrench their unrepresentative political power possibly be constitutional, given the Guarantee Clause?

Legislators and jurists who wanted to save our democracy could surely manage to muster the Constitution to do so. The best inference is that this is not something they want. The next inference is that it is not something the wealthy donors who pull their strings and secure their nominations and confirmations want. And that is no surprise. Oligarchy is, after all, an alternative to democracy, not a form of it.

www.nytimes.com

#6 | Posted by tonyroma at 2022-07-02 08:39 AM | Reply

Whoops, sorry about the overbolding. Try this.

One lawyer's point of view who has actually read the article:

Jamie, I love your column today. I am a lawyer who practices in federal court and I also have some familiarity with the Federalist Papers and the amazing elasticity of our wonderful Constitution.

Your suggestions are spot on.

www.nytimes.com

Thank you, Mr. Bouie, for reminding us that it is Congress and the Federal courts that have failed to use the constitution in order to preserve democracy, rather than the constitution itself that has forced its degradation on us. How can gerrymandering and other vote-dilution and denying tactics R's have been pursuing so vigorously and successfully in the red states to entrench their unrepresentative political power possibly be constitutional, given the Guarantee Clause?

Legislators and jurists who wanted to save our democracy could surely manage to muster the Constitution to do so. The best inference is that this is not something they want. The next inference is that it is not something the wealthy donors who pull their strings and secure their nominations and confirmations want. And that is no surprise. Oligarchy is, after all, an alternative to democracy, not a form of it.

www.nytimes.com

#7 | Posted by tonyroma at 2022-07-02 08:41 AM | Reply

Only if Democrats get a clear majority.

November is going to be critical to the health of our democracy.

#8 | Posted by donnerboy at 2022-07-02 10:45 AM | Reply | Newsworthy 1

8 billion people on the planet and we are burning it up.

To the ones for whom this really matters this will be viewed as the last shot of the boomer derangement syndrome and proof, that there should be term limits in government.

It won't stand.

Just need to wait for a few old -------- to die off. This is just one of the many problems created by an increased life expectancy.

#9 | Posted by RightisTrite at 2022-07-02 10:47 AM | Reply

Just need to wait for the old CIC ------- to die off.
#9 | POSTED BY RIGHTISTRITE

There, IFIFY

#10 | Posted by phesterOBoyle at 2022-07-02 10:52 AM | Reply

"Just need to wait for a few old -------- to die off.0

Wishful thinking.

This radical and illegitimate SC will probably outlast you. Pretty sure it will outlast me. Especially if they don't properly "stack" it and rebalance it. Or at least (and then by a bare minimum) hold it accountable for its actions when it violates the law or moral ethics.

#11 | Posted by donnerboy at 2022-07-02 03:12 PM | Reply | Newsworthy 1

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