U.S. Supreme Court's immense power may pose a danger to its legitimacy

By Richard L Pacelle, Jr

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If the majority of the Judges support and promote left ideologies then there would not be any complaint about it's legitimacy .. This is the reality of the USA media. or journalism now.

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There needs to be more variety of experience on the Supreme Court. The current justices are all former prosecutors and criminal trial judges. 6 of the 9 are Catholic. No Hindus, no Muslims and currently no Jews on the bench. There has never been a Quaker on the court either. There was a time in the past when Supreme Court justices were not always former judges. There were former state Governors, Senators, Cabinet Secretaries and other esteemed public servants from other parts of the government. Earl Warren was the last former legislator to sit on the court. The Supreme Court is called upon to settle all manner of disputes, from patent infringement to disputes between states, water rights, tax disputes, and even on occasion matters of foreign policy. I would argue that the US would be better served by a court with members coming from a variety backgrounds where you might just have a justice who has some hands on with that matter from their previous elected or appointed positions able to offer different insights than prosecutors might have, and a variety of faiths so one religious point of view is not allowed to dominate.

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Not a word about Citizens United ?

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The author very conveniently forgets to mention that the Supreme Court judges are appointed for life, i.e. they never retire..this is what needs to change, they should have fixed terms..also one needs to ask why they are appointed for life..what's the very legacy reasoning behind that decision.

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Congress has lost much of its clout due to abdication of its powers. It gave much of its fiscal clout to a private creation called the Federal Reserve, and has given regulatory powers to numerous government departments created since the Constitution was written. And Congress has allowed the Executive branch to wage almost endless, undeclared warfare since the 1950s.

A strong Supreme Court upholding the Constitution is the only thing that is protecting the rights of the individual citizen. Without a strong, active Supreme Court the American people will be no better than slaves.

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There is a perception that the court has become a political instrument, open to control by the monied interests.

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For what it is worth, when the provision in the US Constitution stipulating appointments for life was made, the average lifespan for a man in the USA was only 34 years.

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Good article.

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Not a peep about the Federalist Society, one of the most successful programs to reshape the judiciary in American history? People like Kavanaugh and Coney Barrett don't get on the court by random chance. This is a decades-long, partisan attempt to remake the Supreme Court, and it's working.

Remember: the louder these justices say they aren't partisan activists, the more you should beware what they are about to do.

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The controversy over recent nominations, threats to pack the court, and whispers that certain precedents are about to be overturned have held the court up to more attention and threaten its legitimacy. And the court’s ultimate authority rests on its legitimacy . . . The justices have been criticized for using the court to make policy decisions . . . But the court’s willingness to push its way into the political maelstrom has quietly been welcomed by the other branches that can avoid the difficult questions and then curry favor with the voters by criticizing the court.

Overturning Roe would invite criticism and closer scrutiny. It might expose the court as an institution that makes the law rather than one that interprets it.

It is not often that I cite primarily to Wiki. I will for an occasion such as this, and invite readers to further explore cites and references within both the body of the law and judicial philosophy.

First, I note that Professor Pacelle studiously avoids using the term, "judicial activism," in his remarks about the court's popularity, and its danger towards losing it. Yet he makes identical arguments when he says "justices have been criticized for using the court to make policy decisions" and "[o]verturning Roe would invite criticism and closer scrutiny. It might expose the court as an institution that makes the law rather than one that interprets it." Thus leading to the court "enacting policy" which "may also cause the loss of the court’s legitimacy . . . as popular acceptance."

Wiki notes that Judicial activism - a term coined in contemporary times by Arthur Schlesinger Jr. back in 1947 - is a "judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions . . . sometimes used as an antonym of judicial restraint, [i]t is usually a pejorative term, implying that judges make rulings based on their own political agenda rather than precedent and take advantage of judicial discretion." [FNs omitted].

Just about there. Wiki continues: "Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker."

Hence, by making "policy decisions" aka "activist decisions," Professor Pacelle argues that the Court risks making illegitimate decisions, against headwinds of popular acceptance. Thereby the court threatens its legitimacy, even though the unpopular and illegitimate opinion may ironically be otherwise welcome by those other branches who avoided making the hard decisions in the first instance.

Unpopular is a threat to legitimacy. As opposed to “legislating from the bench?” Or "judicial activism?"

With all due respect to this political scientist, he unfortunately glosses over the fact that - time after time, after time - overly vague and overly broad language contained within statute and regulations, combined with constant political and societal changes, and the evolution of technology and science, requires the judiciary to apply some kind of a legal interpretation; many that would have baffled any and all the framers of the U.S. Constitution.

SCOTUS, in particular, sends a majority of cases back to the other branches, telling them that it must be within their powers to decide what to do. Often without much guidance, since the court does not pretend to give legal advice to the legislative or executive branches. Not their job! Courts do follow precedent whenever possible; please remember, though, that in order to follow precedent, often precedent must first be set.

In most democratic countries, there will always be a constant tension between what is considered right versus wrong, moral versus immoral, and just versus unjust. And so will unhappiness with the courts that send our own value system occasionally into overdrive. Unhappiness with SCOTUS in fact dates back to the foundings; Wiki reminds us of one of the earliest examples: "Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall." And from his book, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Kermit Roosevelt III "argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with." [FNs omitted].

No matter what the court comes up with, rest assured that many will be unhappy with the result. And many who claim outrage will ignore that the solution, as with the original problem, rests firmly at the feet of another branch of government. Sounds like democracy to me.

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