A Brief Lesson On The Court System
This may come as a bit of a surprise to some, but the truth is, no matter who becomes the next Supreme Court justice, life will pretty much be the same. Whether the political philosophy of the ultimate nominee is to the far left, far right, or somewhere in between, laws will not be changed in the short term.
Oddly enough to me is that it is the conservatives (OK, to be fair to my fellow ‘Pubs, the ultra-conservatives) who are the most vocal in this debate at the moment. It seems that they want Bush to select someone who will immediately reverse precedent on everything from abortion rights to affirmative action. Well, I’m sorry to say, that is not how the court system works. Perhaps they should spend some of their funds raised for advertising campaigns on educating themselves on how the court system works.
You see, with the exception of the notoriously liberal 9th Circuit Court here in California, higher courts grant certiorari only when a statute or specific aspect of a particular case has an ambiguous legal standing. In order for any ruling to come under scrutiny at the Supreme Court, someone needs to file a lawsuit that makes its way from the lower courts, to the appellate court, to the state Supreme Court, then on to the Circuit Court, and finally, after all that (and usually many years), to the US Supreme Court, with possible backtracking at any step to a lower court that is directed to re-hear a particular facet of the case in question.
The nature of the lawsuit, and in particular, the issue which is contested as being ambiguous, determines whether or not any of the higher courts grant certiorari. If an issue has been adequately examined by the courts in the past, and there is no area that needs further review, it is unlikely that a lawsuit could get a hearing. Now I grant that this entire process can be short-circuited by the 9th Circuit, which has a long history of “legislating from the bench.” However, that would still require the US Supreme Court to agree to hear the issue. While not everyone always agrees with every decision, one fact that is indisputable is that they have been remarkably consistent in their reasons for granting or denying a hearing.
This process is specifically intended to ensure that laws are rooted in the Constitution, and are not changed at the capricious whim of whatever justices happen to be on a particular bench at a particular time.
The problem faced by the ultra-right-wingers is finding an issue with enough ambiguity to make its way through the system. In the case of affirmative action, that legal leeway quite possibly exists due to Justice O’Connor’s irreconcilable opinions in the two University of Michigan lawsuits. However, it will still take a new case based on new circumstances (and someone with the financial resources) to chaperone the case through the court system.
The situation for Roe v. Wade is much more complex. A direct challenge to Roe cannot be made, as it would never be granted certiorari. That leaves the ultra-right crowd with the problem of finding a “back door” into the Roe ruling. As an example, assume Congress passed a law making heart surgery on fetuses illegal. Assume also that a doctor who performs some other type of surgery on a fetus is subsequently sued under that law. Finally, assume that one of the lower courts ruled the intent of the law was not to be restricted to heart surgery, and therefore the doctor is guilty. In this scenario, a credible challenge to Roe could then be made under the argument that abortion was surgery. Herein lies the problem – all of this takes time and specific assumptions, and therefore, the law will not be overturned any time soon.
As I argued in my previous post on the Supreme Court (“On Hollywood, the 4th of July, and Supreme Court Nominees”), the political bickering going on from both sides is outside the intent of the “advice and consent” clause of the Constitution. Justices should be selected based on a history of rulings that were compatible with the framer’s intent. There is no provision in the Constitution that could be construed as to allow a judge to insert his political philosophy. Indeed, the Constitution provides the specific (and only allowable) test when evaluating cases. That test of course is to examine whether or not the challenged statute arose as a law under the Constitution. In order to ensure there was no room for politics, the framers added the “necessary and proper” clause to the powers of Congress.
If the President and the Senate adhered to this, there would be no need to examine the political philosophy of prospective nominees. And there certainly would be no need to subject innocent Americans to the endless barage of TV ads from groups that evidently do not understand the Constitution.
Oddly enough to me is that it is the conservatives (OK, to be fair to my fellow ‘Pubs, the ultra-conservatives) who are the most vocal in this debate at the moment. It seems that they want Bush to select someone who will immediately reverse precedent on everything from abortion rights to affirmative action. Well, I’m sorry to say, that is not how the court system works. Perhaps they should spend some of their funds raised for advertising campaigns on educating themselves on how the court system works.
You see, with the exception of the notoriously liberal 9th Circuit Court here in California, higher courts grant certiorari only when a statute or specific aspect of a particular case has an ambiguous legal standing. In order for any ruling to come under scrutiny at the Supreme Court, someone needs to file a lawsuit that makes its way from the lower courts, to the appellate court, to the state Supreme Court, then on to the Circuit Court, and finally, after all that (and usually many years), to the US Supreme Court, with possible backtracking at any step to a lower court that is directed to re-hear a particular facet of the case in question.
The nature of the lawsuit, and in particular, the issue which is contested as being ambiguous, determines whether or not any of the higher courts grant certiorari. If an issue has been adequately examined by the courts in the past, and there is no area that needs further review, it is unlikely that a lawsuit could get a hearing. Now I grant that this entire process can be short-circuited by the 9th Circuit, which has a long history of “legislating from the bench.” However, that would still require the US Supreme Court to agree to hear the issue. While not everyone always agrees with every decision, one fact that is indisputable is that they have been remarkably consistent in their reasons for granting or denying a hearing.
This process is specifically intended to ensure that laws are rooted in the Constitution, and are not changed at the capricious whim of whatever justices happen to be on a particular bench at a particular time.
The problem faced by the ultra-right-wingers is finding an issue with enough ambiguity to make its way through the system. In the case of affirmative action, that legal leeway quite possibly exists due to Justice O’Connor’s irreconcilable opinions in the two University of Michigan lawsuits. However, it will still take a new case based on new circumstances (and someone with the financial resources) to chaperone the case through the court system.
The situation for Roe v. Wade is much more complex. A direct challenge to Roe cannot be made, as it would never be granted certiorari. That leaves the ultra-right crowd with the problem of finding a “back door” into the Roe ruling. As an example, assume Congress passed a law making heart surgery on fetuses illegal. Assume also that a doctor who performs some other type of surgery on a fetus is subsequently sued under that law. Finally, assume that one of the lower courts ruled the intent of the law was not to be restricted to heart surgery, and therefore the doctor is guilty. In this scenario, a credible challenge to Roe could then be made under the argument that abortion was surgery. Herein lies the problem – all of this takes time and specific assumptions, and therefore, the law will not be overturned any time soon.
As I argued in my previous post on the Supreme Court (“On Hollywood, the 4th of July, and Supreme Court Nominees”), the political bickering going on from both sides is outside the intent of the “advice and consent” clause of the Constitution. Justices should be selected based on a history of rulings that were compatible with the framer’s intent. There is no provision in the Constitution that could be construed as to allow a judge to insert his political philosophy. Indeed, the Constitution provides the specific (and only allowable) test when evaluating cases. That test of course is to examine whether or not the challenged statute arose as a law under the Constitution. In order to ensure there was no room for politics, the framers added the “necessary and proper” clause to the powers of Congress.
If the President and the Senate adhered to this, there would be no need to examine the political philosophy of prospective nominees. And there certainly would be no need to subject innocent Americans to the endless barage of TV ads from groups that evidently do not understand the Constitution.
posted by exsubdriver at 1:19 PM
2 Comments:
And of course, one needs to keep in perspective, that in addition to certiorari, SCOTUS has traditionally been extremely reluctant to overturn a previous decision. The thinking being that this leads it down a slippery slope where no opinion is ever final.
RE: last post, the principal is called "stare decisis" or "to stand by that which is decided".
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