Scalia's bold new view of the Supreme Court

[cthulu2016]

Scalia thinks that the Voting Rights Act is no longer needed. For whatever reason.

Congress renewed the act only a few years ago.

But the Supreme Court has the power to cancel the law simply because it has been around too long.

When Congress renewed it they did so only because voting for it was politically popular. (Scalia said that there was "no benefit" to any congress person voting against it.)


So the Supreme Court can strike down a Constitutionally valid law passed by Congress, signed by the President, because the law is bad policy (in the view of the court) and we all know that Congress only passed the law because it was politically popular.


(when thinking of bills that pass only because congress persons are afraid to vote against them, several tax reductions come to mind, but when the deficit effect of the Bush tax cut became apparent I don't recall SCOTUS announcing that the tax cut was no longer a good idea, and Congress couldn't act because tax cuts are popular.)

[graham4anything]

1. That interpolated means they can at any time strike down or interpret the 2nd.

for the same reasons.

wouldn't that be nice!

[thelordofhell]

2. Or Citizen's United

[patrice]

4. K&R!

[1StrongBlackMan]

3. Well ...

So much for the right's constant Judicial Activism whine.

Remember a time when, just about everyone, right and left, thought acting undemocratic was a bad thing? Even Barry Goldwater would be at stroke-levels with scalia's crap.

[hedgehog]

5. The Right doesn't understand the difference between judicial activism

to identify rights inherent in the Constitution vs. judicial activism to write new laws or correct the laws Congress wrote.

[octoberlib]

6. Members of Congress are representatives of the people

They're supposed to vote the way that's "politically popular". The Conservative members of the Supreme Court are engaging in partisan politics. This makes me sick. Ugh.

[dballance]

7. So I Agree With You About This Current Issue. BUT...

You have to realize the Supreme Court invalidates laws all the time. Some days their rulings fall into the category of things you and I might agree with and some days they don't.

Try to remember the Supreme Court made rulings in Griswold vs. Connecticut and Loving vs. Virginia that invalidated bills passed by legislatures and signed into law by an executive. Then there is that Dred Scott vs. Sanford case too.

I think we'd argue the propriety of those laws that were invalidated by taking sides on the position espoused by those laws. The Supreme Court has certainly not always ruled in a manner that agrees with my opinions.

So even if I loathe a SCOTUS ruling I have to, as a citizen, support their constitutional right to make those rulings. And by consenting to be a citizen of the US because I choose to reside in the US rather than immigrating to another country I, by default, agree to live by their rulings.

On a different day some Tea Party people may be posting a post much like yours to decry the "liberal" Supreme Court.

[pinboy3niner]

8. That's not the rationale for disagreeing with Scalia

He believes that racial discrimination is no longer a factor in passage of voting laws. Despite all the contrary evidence that it is a factor.

A law passed by Congress and signed by the President is not immune to judicial review. The travesty would be if the court ignores the evidence and decides that such laws are benign.

[jberryhill]

9. DOMA was passed by Congress too

I don't get your point.

Can the Supreme Court strike down laws? Uh, yes, that's one of their functions.

Your logic runs in a circle with the addition of the phrase "constitutionally valid". The Supreme Court is there to decide that.

And, at the end of the day, appellate courts are not trial courts - appellate judges say all kinds of things to test the arguments of the lawyers in front of them. Granted, Scalia is probably expressing an opinion he holds, but the notion that a judge in an appellate context said "something outrageous" is not at all by itself much of anything.

[cthulu2016]

10. We are (kind of obviously) talking about *absent Constitutional issue*

The Court has no (proper) power to strike down a law for being poor policy absent a constitutional basis.

I know you don't need this explained... but you also know I don't need it explained, which makes your comment a puzzle to me.

Of course the SCOTUS can review laws in light of their conformity with the Constitution.

And of course the SCOTUS is the last word in interpreting what the statute says.

The Court, however, has no proper power to rewrite the act of Congress for the reason that the Court thinks the law is poor policy... and particularly not with the observation that Congress is merely incapable of thinking straight about whether to renew the VRA because it is politically popular.

The proper arbiter of whether the VRA should have been renewed was Congress. They arbited. They renewed it. They have not canceled it.

So either it is unconstitutional, or it stands.

Scalia noting that the Senate faced political pressure to fail renew it is not sufficient to dismiss the fact that Congress, in fact, decided only a few years ago that Scalia was wrong, and that the VRA continued to be needed.

Now, if out of the blue after almost 50 years Scalia wants to concoct a Constitutional argument that's fine, but it seems that the one he is angling for is based on a factual assessment by the Court of whether the act has served its purpose and thus has become unconstitutional.

But to mention that Congress was under pressure to pass it suggests that the fact Congress did, fairly recently, pass it is of interest to Scalia as something that should be explained away.

And I am suggesting that it cannot be explained away by suggesting that a Congressional action made under political pressure can be discounted as the "real" will of Congress.

Scalia actually said that the fact it was passed 98-0 in the Senate seven years ago suggested that there was some inauthenticity to the vote.

[jberryhill]

11. That's pretty much the dissent in Lochner v New York

At the end of the day, the only functional definition of "improper substitution of legislative judgment" is "the court didn't agree with me".