Far-Left news outlet VOX called for the abolishment of the Supreme Court in an article Friday.
The case for abolishing the Supreme Court https://t.co/WJU1Nxa1LQ
— Vox (@voxdotcom) October 12, 2018
How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?
In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And, in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.
And how does that kind of system work?
The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”
Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?
Yeah, I do. I’m a big fan of the dialogic approach. And it’s worth noting that even very conservative legal scholars like Robert Bork have proposed this sort of system, which suggests this is something people across the ideological spectrum could get behind. And I’ve felt this way for my entire career, regardless of the ideological makeup of the Supreme Court.
This is an awful idea. The Supreme Court was set up to uphold the Constitution. As the law professor admits in his next answer this on many occasions had upheld the rights of the minority.
If you look at the overall course of US Supreme Court history, the description that you’ve offered is basically correct. But there are exceptions, as there always are, to that kind of generalization. One is the relatively brief Warren Court era, which still occupies the imagination of many people who think about the Constitution.
We’ve had the Brown v. Board of Education decision and Roe v. Wade, and then, more recently, the Obergefell v. Hodges decision that legalized same-sex marriage — and all of these decisions were empowering for different segments of the population.
The big question is whether the gains from those kinds of protections of minority interests are substantial enough to outweigh the Court’s interference with legislation on behalf of the most powerful elements of our society. If you’re focused on many recent decisions, like Citizens United, the Court certainly seems to be favoring corporate power, but the picture is less clear when you step back and evaluate it over a much longer period of time.
Notice how 2/3 cases he mentions are ones that leftist were happy about. Roe v Wade and Obergefell v Hodges were both wins for the socially liberal crowd. Why did he not mention DC v Heller which upheld American’s 2nd Amendment rights? Why does he mention Citizens United, a first amendment case with such contempt?
The bottom line is that the Supreme Court is a needed branch of government. Its role is to uphold the constitution plain and simple. If Congress can just say forget the Court’s ruling and move forward anyway the rights of all Americans are in danger. If you want to protect the rights of the minority, the Supreme Court must exist in the form the founders intended.
Past blog posts expose Harvard Professor as a liberal hack:
MARK TUSHNET, 2016: Oh man it’s gonna be grrrrreat to seize a majority on SCOTUS we are going to slaughter our enemies in the culture wars I am *frothing at the mouth with anticipation*.
MARK TUSHNET, 2018: On second thought, judicial review is kind of a bad idea isn’t it.
— Jeff B. (@EsotericCD) October 12, 2018
(P.S. here’s the link to Tushnet’s infamous May 2016 piece about this on Jack Balkin’s blog, which galvanized legal conservatives: https://t.co/B2Eal5KR6I)
— Jeff B. (@EsotericCD) October 12, 2018
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