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> I'm sorry but you are just making sht up*

Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law.

> The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not.

You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison [0] was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it.

EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's [1] school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school [2].

The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman [3].

> An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.

See above.

NOTES:

[0] http://en.wikipedia.org/wiki/Marbury_v._Madison

[1] Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...."

[2] http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html

[3] http://en.wikipedia.org/wiki/Ex_parte_Merryman




a) "Um, no", but times a thousand!

b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear?

The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense.

As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy.

See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law?

Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs.

The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution.

SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.


> Have you ever practiced law or been involved in it?

As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.)

> The judiciary has no real power other than that of apparent authority.

That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 courses or high-school civics.

> It is an assumed power; an assumption which could just as easily be undone by another accident of history.

True enough, but the system has worked reasonably well for a couple of centuries now, achieving a kind of dynamic stability. (And yes, I'm mindful of those Court decisions that history has rightly come to regard as, how shall I put this, less than successful, such as Dred Scott, Plessy v. Ferguson, and Korematsu.)

You're welcome to try to convince ~150 million voters and their elected representatives that a change in the arrangement is warranted. Good luck with that; in fact, good luck even getting their attention, given that all of those folks do have a few other things on their minds. Past attempts to overhaul the arrangement have never caught on and in fact have been viewed with suspicion, for example as FDR learned the hard way when he tried to pack the Court in the mid-1930s.


Great I'm glad you agree with me on the facts. They are hard to disagree with. You and your friend "Thomas" can discuss the matter on your own on why he fails to do so.

I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly:

What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

Before you answer consider a study of all the acts of Congress struck by SCOTUS from 1953-1997 and the current status of these statutes as summarized by J Mitchell Pickerell [0] Details can be found by following references in the article which any lawyer (regardless of gender) can find.

[0]: http://apps.americanbar.org/publiced/constitutionday/Supreme...


> What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

That's like asking, what is the actual effect of a thunderstorm. The answer is, it depends.

At a minimum, if a government official were to attempt to enforce a law after it had been declared unconstitutional, almost certainly someone would challenge the enforcement attempt in a lower court. (If no one cared, the law wouldn't have ended up in the Supreme Court in the first place.)

The challenge usually will lead to the lower court's issuance of an injunction prohibiting the government official from continuing with his or her attempt to enforce the law. Disobedience of the injunction is punishable as contempt -- as in, the U.S. Marshals will arrest and jail the disobedient official until the contempt is purged. (I don't have time to go into the details of the contempt process.) I can't remember that ever happening, because the Court's power to declare a statute unconstitutional is essentially universally accepted as a practical matter, even though some theorists challenge it from time to time.

Sometimes the Court rules that the unenforceability is retroactive; this can create practical problems, but institutionally the Court is fully aware of that and takes it into account.

Other times the Court will say that the unenforceability is prospective only, that is, existing actions aren't to be disturbed.

Incidentally, the article by Pickerill (not Pickerell) that you cite doesn't support your view. The article lists the various ways in which Congress has deferred to the Court's rulings, that is, acceded to the Court's authority. For example, Congress might amend an unconstitutional statute to fix the constitutionality problems, or it might repeal the statute entirely.


The person you're replying to is an actual lawyer.


And not a dog? Thanks for answering a question not addressed to you however.

It was really weighing on my mind.


When you asked, "Have you ever practiced law or been involved in it?", I took that to mean you'd want to know that.


Oh ok. Usually, in the English language, and a great many others, when someone asks a question and then answers it in the very next sentence ("If not, prepare yourself; you are in for a frustrating experience") then that sentence is considered a rhetorical answer.

That is, a question not in need of an answer. Hope that helps you.




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