Supreme Court

Liberal Pundit Says America Should 'Ignore' the 'Antidemocratic' Supreme Court. Should America Start By Ignoring Roe v. Wade?

A writer at Slate makes a left-wing case for judicial abstinence.

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Credit: C-SPAN

Writing at Slate, liberal pundit Mark Joseph Stern says he is "not sure America's experiment with judicial supremacy has been a great success." Why? Because of the "antidemocratic judicial arrogance" of the U.S. Supreme Court. According to Stern, "when duly elected representatives of the people find that legislation grants 'due process of law' and 'equal protection,' shouldn't that decision be accorded deference by nine unelected judges?" Stern believes that such legislation should receive judicial deference. However, because the Supreme Court keeps refusing to defer to majority rule, something drastic must be done. "The solution here is obvious," Stern declares. "If we want to curb the Supreme Court's power, all we have to do is ignore it."

I wonder how many liberals will heed Stern's call for judicial abstinence. Will liberals join Stern in ignoring the outcome of United States v. Windsor, in which the unelected Supreme Court struck down part of the Defense of Marriage Act, a duly enacted federal statute favored by a wide congressional majority and signed into law by a twice-elected Democratic president named Bill Clinton? What about ignoring the outcome of Roe v. Wade, in which the unelected Supreme Court struck down Texas' ban on abortion, a duly enacted regulation favored by a majority of that state's democratically elected officials?

Come to think of it, liberals would also have to ignore the outcome of Boumediene v. Bush, which overruled part of the duly enacted Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay. As Justice Stephen Breyer remarked of that decision (which he joined), "One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress's broader purposes."

I guess we'll have to wait and see just how much majority rule Stern and his fellow liberals are willing to stomach in their quest to curb the power of the "antidemocratic" Supreme Court.

Related: How liberals learned to stop worrying and love judicial activism.

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  1. Your first mistake was assuming Slate would publish a considered, philosophically consistent opinion piece.

    1. While Slate did publish Hitchens’ stuff, so maybe that was an aberration?

      1. Hitchens was overrated, an intellectual lightweight who was famous for being atheist (big woop).

        His arguments against Original Sin were carbon copies of Ayn Rand’s, which is probably why he slandered her so much.

  2. Stern believes that such legislation should receive judicial deference.

    Because, you know, the legislature is the people.

    Liberals love the power of the state. You can’t have central planning without absolute control over what people say, do or think. Those nine unelected individuals cannot have the power to overrule the planners’ wishes.

    1. Liberals love getting their way in the moment. If an institution gives them their way then it is sacred, if that institution denies them then it is anathema and must be dismantled. Even if the reasoning behind both instances are based on similar principles. The needs of the moment are the only thing that is important.

      It is how the New York Times can rationalize the corporations have no 1st Amendment rights.

      1. Exactly. Stern doesn’t want to abolish the supreme court. He just wants progressive executives to ignore some of the verdicts while hiding behind others. He is literally arguing against the rule of law while thinking that he is arguing for the rule of law. Maybe he has mastered doublespeak?

      2. Leftists are only for democracy as long as they agree with the people, but turn into the Vanguard the moment the majority disagree with them. Kind of like how they only want equality for a group when that group has less; where and when it has more, they just want even more. Things like freedom and equality and democracy never were valued by leftists; their causes were merely the instrument with which to overthrow the old tyranny so they could set up their own new one. Leftists are only friends to these principles like a pretender to a Habsburg will side with a republican in an effort to overthrow a Bourbon king. Once the Bourbon monarch is overthrown, the Habsburg is just as much an enemy of the republican as the Bourbon was.

    2. Liberals love getting their way in the moment. If an institution gives them their way then it is sacred, if that institution denies them then it is anathema and must be dismantled. Even if the reasoning behind both instances are based on similar principles. The needs of the moment are the only thing that is important.

      It is how the New York Times can rationalize the corporations have no 1st Amendment rights.

    3. This is democracy. The rule of the majority. Which is why democracy sucks and always has. Democracy has absolutely nothing to do with Liberty. Democracy is a socialist construct, Henri de Saint Simon and Robert Owens circa early 1800’s, and the media has convinced everyone it’s freedom.

      Judging by what people say and write, they won that bit of propaganda war.

  3. I don’t know what you’re taking about, accusing this poor writer of hypocricy. If, as seems likely, SCOTUS rules in the gay marriage cases that gay marriage is a protected right under the Constitution, I’m sure he’d support it if, say, Alabama decided not to follow that ruling, right?

  4. First some quibbles – you can support judicial *review* (federal courts rule on constitutional questions which properly arise before them, including issues of constitutionality) with judicial *supremacy* (everyone must accept the Supreme Court’s latest constitutional interpretation as basically part of the Constitution, until such time as the Court changes its mind, at which time the new opinion becomes part of the Constitution).

    Instead of *ignoring* bad decisions, how about Congress taking away (“stripping”) the federal courts’ jurisdiction in cases where they have demonstrably misapplied the Constitution. That will leave the state courts to fill the gap, but at least a bad decision by courts in State A won’t bind courts in State B, a more sensible state.

    1. And the article says the Supreme Court has no police force. What are the U.S. Marshals, then?

      1. While the U.S. Marshals are officers of the court, they are part of the Executive Branch by way of the Attorney General/Justice Department. They’re also one of the oldest government agencies in America.

        1. I didn’t mean to deny they were part of the executive/DoJ – but they happen to work as the courts’ police force. Defy a court, or be a fugitive from justice, and see the truth of this!

          1. Has there ever been a standoff between the US Marshals and the Secret Service? I’m guessing the SS didn’t exist back in Jackson’s day…

      2. If anyone ever brings up the United States Marshal Service, thus reminding me that Justified is now over forever, I will consider that a microaggression of the highest order and write a sternly worded post on my blog.

      3. http://www.usacops.com/dc/p20543/index.html

        That assertion will come as one hell of a surprise to these people.

        1. That’s nice, but the SC Police don’t seem to operate outside their building – and it’s outside the building where enforcement of court orders is necessary, and that’s where the U.S. Marshals come in.

          And the Marshals will basically enforce *anything* –

          https://reason.com/blog/2013/07…..lave-catch

          1. I know. I was just being a smart ass.

    2. correction: you can support judicial review *without supporting* judicial supremacy

    3. That’s just crazy talk Eddie. If individual states were allowed to interpret the document that they signed we’d be just like Somalia.

      1. Ahhh, Somalia, our libertarian paradise. The surfing there is just awesome.

    4. “demonstrably misapplied” as in “I don’t like it”, as a legal framework, as opposed to just plain “I don’t like it”.

      Fantastically consistent thinking there. You will go far. I wish you would.

      1. I can’t really figure out the meaning of your spittle-flecked rant, other than “you suck and I hate you.”

        Is there some nuance I missed?

        1. Isn’t that about what you suggested? You want the government to ignore court decisions you don’t like.

          Seems like you already had the message, I was just echoing you, and you apparently don’t like to be confronted with your own opinions.

  5. If we want to curb the Supreme Court’s power, all we have to do is ignore it

    GOVERNMENT-HATING TREASONOUS ANARCHY!!!!!

  6. Top comment on this article at Slate:

    Lyssalr

    “The court has got to go.”

    Really? And what would replace it, to check the powers of the executive and legislative branches? Does the author not realize that one could easily write about equally outrageous actions by these entities, many of which were checked by the SC? Has he any familiarity whatsoever with the administrative state? (I’m guessing not – few people do, much to the country’s detriment.) Just because the system is imperfect does not mean that it should be scrapped without a better system to takeover. Such is magical thinking.

    What an exceedingly childish article (and, I assume, book).

    Well said, Slate-reader. Well said. It is telling how easily Progressives are willing to scrap the idea of separation of powers and constitutional government when they don’t get their way.

    1. They have lost their minds. Part of it is winning two Presidential elections. Bill Clinton really wasn’t one of them. So they have never experienced holding the Presidency for this long. It has convinced them that they will never lose it and will always be in power. So, the mask has come off. They are ready to throw the rule of law in the gutter because they figure they don’t need it for protection anymore and it is just standing in the way of their finally destroying their enemies.

      I think they are a bit mistaken in that. They are not going to hold the Presidency and they are going to want the rule of law to protect them when they don’t. They are too stupid and arrogant to understand that. Let them lose the White House and they will suddenly decide the rule of law is the greatest and most noble thing ever!!

      1. And for that, part of me sometimes almost wishes they’d get their way. Only to wake up the next morning to a President Gingrich or a President Santorum.

        And then I remember that the rest of us would be just as screwed.

        1. They so deserve a President Cruz. Not a President Paul. Paul is a nice guy and would treat them far better than they deserve to be treated. Cruz, in contrast, isn’t such a nice guy and would use the weapons they have created to stomp on their faces. That probably wouldn’t be a good thing for the country but justice would be served for once.

          1. That’s why I really don’t like Cruz, while I like many of the things he stands for what we really don’t need right now is a pinochet.

            1. What indications has Cruz given of being a Pinochet? By this logic Obama was a Pinochet since John simply observed that Cruz would use the Obama template against the left rather than turn the other cheek.

        2. How would a president Santorum much less a President Gingrich screw you over? I’m not saying you’d support them, but how would they screw you over. And a right-wing president doing to the left what the left has done to its opposition over the past eight years is the only way the left is going to change. I have a hard time understanding the logic that says we must protect the left at all cost from having to taste its own medicine because the right might, might be just as bad.

          1. And there are people here that will argue that the Teams are different in some way.

            *Shakes head in disbelief*

            1. Well one team has openly embraced Obama’s caudillo politics while the other side hasn’t. Actually that’s not even true the Republicans absolutely repudiated Nixon.

              1. Remember Karl Roves mulatto lovechild smear against McCain in the primary? Are you really that mcuh of a moron to claim Repiblicans hold some sort moral highground in US electoral politics?

                Both teams are shit. Take your partisan nonsense to breitbart.

            2. What are you, some kind of a butt pirate?

          2. your kind of an republican huh.

            1. You kind of like Obama’s caudillo politics don’t you. You kind of love them don’t you. Because you sure don’t want to see them stopped.

          3. “And a right-wing president doing to the left what the left has done to its opposition over the past eight years is the only way the left is going to change.”

            No, it will just radicalize those idiots even more and get us into an arms race where each side tries to fuck the other whenever they get power. That’s incredibly dangerous.

            “How would a president Santorum much less a President Gingrich screw you over?”

            Given that president Santorum would be economically statist while also being a moral busybody, I can think of quite a number of ways.

            1. So instead we just let one side beat up the other side and tsk tsk when Republicans try to defend themselves. I guess that’s a pretty crafty strategy for a faction that gets an occasional goodie bag tossed to it from Obamaism. Maybe I’d be tempted to look the other way too if Obama was advancing one of my pet issues by executive diktat too.

              1. god you are a fucking tiresome idiot.

            2. For Santorum’s faults, he is of fr better Chester than Obama, or any of the demoturds that will run in 2016. He would be far more benign and respectful of co situational limits. Though not ideal.

          4. I’m sure president santorum would be kind to the gays and non Christians

      2. I frequently ask this question, and I’ll ask it again. With all that in mind, can we PLEASE finally wipe out the progressives?

  7. If the majority had its way we’d be forced to have Pizza Hut and Bud Light for dinner while watching NCIS.

    Progressives are SOOOOO whiny when they don’t get their way.

    1. I watched NCIS when Cote de Pablo was on there.Of course I watched The Avengers for Scarlett Johansson,and Castle for Stana Katic,

  8. Should America Start By Ignoring Roe v. Wade?

    “No, no, no! Don’t be silly! You misunderstood me! No, what I was saying is that we should ignore those Supreme Court decisions we happen not to like! Not those we like! I mean, let’s be logical here!”

  9. Let’s ignore Wicker v Filburn ,works for me

    1. Except that leaves the government interpretation of the commerce clause in effect.

      Pick a better example, one that reverses a government action.

      1. There’s such a long list ,it’d take too long to name them.

      2. Wickard v. Filburn is the government’s preferred interpretation of the Commerce Clause (even activity that in no way utilizes any aspect of interstate commerce is still under the auspices of the interstate Commerce Clause because farmer Filiburn’s actions [using his surplus as feed] affected interstate commerce [by using his surplus as feed, he did not buy feed from a merchant on the open market. The actions of Filburn, and the thousand Filburns not in court, taken collectively, caused a substantial impact on interstate commerce]).

        1. Exactly. Ignoring a court decision which affirms the government’s position leaves the government’s position intact.

        2. Shorter version:

          The Founders diligently worked on and traveled thousands of miles by horse to create a document limiting the powers of government only to add a clause that says government is omnipotent.

          Yep.

  10. The stupid is strong in this one… This Stern character, that is.

  11. I recommend Stern’s piece over this. Not sure I understand what’s libertarian about 9 unaccountable people making law by fiat. Sometimes they make better law than Congress or local legislatures do, sometimes they don’t. That is both the risk and the reward of having philosopher kings.

    1. Libertarian is not the same thing as democratic. Beyond that, you claiming you object to nine unaccountable justices making laws is more insulting to the reader’s intelligence than even your usual posts. You love the idea of nin unaccountable people making laws. You just object to them making laws you don’t like.

      1. I’m well aware that libertarian means “I get my way all the time no matter what.”

        I’m on record with the opinion that our entire system of government needs an overhaul. I’d settle for a minor one for now: triple the size of Congress (with districts drawn by nonpartisan bodies) and triple the size of the Supreme Court.

        I didn’t realize you were such a SC fanboy and have never bitched about judicial activism on decisions you don’t like.

        1. Re: Tony,

          I’m well aware that libertarian means “I get my way all the time no matter what.”

          That would mean Obama is a libertarian.

          1. Tony=Buttplug?

        2. I’m well aware that libertarian means “I get my way all the time no matter what.”

          The projection is awe inspiring!

        3. No, it doesn’t mean ‘getting your way all the time’. It means being left alone to live your life according to your own will for the most part. Being a progressive is about your own way all the time. As long as you think the right thoughts and have the right opinions. And your feelings should equate to public policy.

    2. Re: Tony,

      I recommend Stern’s piece over this. Not sure I understand what’s libertarian about 9 unaccountable people making law by fiat.

      Stern is not making a libertarian argument. There’s nothing libertarian about vowing to “majority rule.”

      1. Don’t even bother, this has been explained to him a million times. He is a liar, a moron, or both.

      2. … But there is something libertarian about rule by 9 unelected guys in robes.

        1. The Supreme Court does not “rule” in any sense of the word. The most they can do is uphold actions already taken by the other branches.

          1. Indeed, one need only look to Chief Justice John Marshall and the effectiveness of his “rule” over President Andrew Jackson.

            But as I said, Tony is…

            1. …a mind numbing moron?

          2. Have I stepped into the fucking twilight zone? Is the only consistency to what you guys believe that it must contradict whatever is said by the “liberal pundit” under discussion?

            1. hahahahahaha! the projection is immense.

            2. Nope.

              Tony, your problem is that you are really, really ignorant and struggle with abstract reasoning.

              1. Tony also seems to be ignoring the fact that Stern isn’t arguing we should change the law to restrict the courts, he’s arguing we should just ignore court decisions we don’t like. This is completely contrary to the Rule of Law and the Rule of Law is a pretty bedrock libertarian principle.

                If you don’t have the Rule of Law, you have rule by the capriciousness of individual men. That inevitably leads to autocracy.

                1. Rule of law is a bedrock principle for every system of political thought except anarchism. Libertarians should be the most iffy, I’d think.

                  1. Rule of law clearly isn’t the bedrock principle of progressivism given the tendency for progressive protests to devolve into riots, the fact that Stern is explicitly arguing against the rule of law in this case, and the fact that you are defending Stern’s argument, therefore meaning you don’t believe in the rule of law.

                    Don’t lie Tony. You’re an authoritarian, no reason to be a dishonest one.

                    1. You’re an authoritarian, no reason to be a dishonest one.

                      If he was honest, he couldn’t pretend to be liberal any more. Wearing the mask makes it more comfortable for him to be a fascist.

          3. By this definition no one but a dictator rules. All a president can do is agree to do something congress tells him to do by this logic. And all congress can do is make suggestions to the president.

            1. Indeed, no one individual or institution is singularly empowered to rule in a republic. However, in practice, individuals at various levels and in various branches do rule by dint of their actions going unchallenged.

              1. And what goes more unchallenged than a SC ruling? Ergo the SC rules to the greatest extent in our system.

                1. And what goes more unchallenged than a SC ruling? Ergo the SC rules to the greatest extent in our system.

                  SC rulings are challenged in the courts all the time. Sometimes the composition of the court doesn’t even change before a previous ruling is amended. And the legislatures are constantly pushing the boundaries of SC rulings.

                  You are living in a fantasy land if you think the SC rules like a dictator.

                  1. Furthermore, Jordan’s point has an important kernel of truth. The SC cannot generally create law. Yes, it does do so on occasion in response to suits brought before it, but it still can’t out of thin air issue a diktat like e.g. a federal regulator can. A federal regulator (FCC, SEC, FDA, etc.) can change the rules today, and until the courts rule on them (or unless the courts stay them), they become effective immediately and severe penalties can be applied for failure to obey. That is as much “ruling” as any decision issued by the SC.

                  2. Pushing the boundaries of a ruling is not in any way challenging the ruling especially since the SC can simply issue a new ruling clarifying its intent and restricting those boundary pushing actions.

                    Look in an absolutist monarchy you could petition to King and hope he changed his mind too. Do you really consider that much of a balance on his power? And Kings die and the “composition” of the monarchy changed too-heck you could even hope that a different clique came to influence the king. That’s not a balance on the Kings power though. The fact that the ultimate authority can change in identity or simply change its mind in no way limits its authority. This is why the founders consider the “composition” of the branches as a seperate issue from checks and balances.

                    1. There are areas of law the SC has not touched. Furthermore, SC Justices can be impeached. It is not analogous to a monarchy, and your question begging assertions do not change that fact.

                      Insofar as the SC is elitist or cliquey, it is not especially so as compared to the other branches. You are just ignoring their own malfeasance in order to make your point.

                    2. In no way did I beg the question. I simply pointed out how perfunctory a limitation on power the ability to change ones mind is. It’s not a restriction of ones power to let people appeal your decision back to you. Do you think that is? The fact that justices can in theory be impeached is a difference between a king and the SC but for intents and purposes that is literally the weakest form of balance of power that exists. If impeachment were the only means by which a veto could be overturn that would be seen as highly problematic. That’s why there is another method provided. That alternative method doesn’t exist for reigning in the SC.

                    3. The SC cannot enforce its own decisions. Ask the Cherokee about it. The Congress can strip the Supreme Court of appellate jurisdiction for any matter it so chooses. You keep arguing both sides of the in practice vs in theory distinction. The lower courts throw out cases all the time for lack of standing and the SC rarely intervenes. The SC has also thrown out cases itself for lack of standing. So clearly standing is a practical limitation on the SC’s power to make law.

                      At the end of the day, procedural changes cannot fix people problems. Gutting the SC isn’t going to change the fact that most people want their pony and don’t care how they get it. If anything, it is going to make it easier for them.

                    4. If impeachment were the only means by which a veto could be overturn that would be seen as highly problematic. That’s why there is another method provided. That alternative method doesn’t exist for reigning in the SC.

                      There is another method provided to overrule the SCOTUS. All Congress needs to do is get 2/3 of them to agree as well as 3/4 of the states.

            2. The Supreme Court does not enact or enforce laws or regulations. It’s pretty simple.

              1. The Supreme Court does not enact or enforce laws or regulations. It’s pretty simple.

                This is pretty blatantly not true. The right to/expectation of “privacy” was invented out of whole cloth by the Court. Also, several procedures of criminal law enforcement have pretty much been invented by SC opinions.

                1. The right to privacy is a fundamental right, and it has always been covered by the Ninth Amendment. They didn’t invent it; they finally recognized it.

                  1. The right to privacy is a fundamental right, and it has always been covered by the Ninth Amendment. They didn’t invent it; they finally recognized it.

                    You have a right to force me to forget I saw you do something?

                    Such a thing is not a right, so it was not “covered by the Ninth Amendment”, and the SC most definitely did invent the doctrine.

                    The privacy BS the SC invented was done to appear neutral after handing the government a blank check in the form of nearly limitless police powers and an expansive reading of the commerce clause.

                    1. You have a right to force me to forget I saw you do something?

                      That’s pretty obviously not what the right to privacy means. If you can point me to where the Supreme Court ruled that’s what it entails, then I’ll concede, but I’m not aware of any such ruling.

                    2. What does it mean, then? What is privacy and how do you have a right to it?

                      If I look in your window and see you murder someone, what the fuck difference does it make if I was wearing a uniform or not? You did it, I saw it, you can’t compel me to forget what I saw.

                      Furthermore, what difference does it make if you are searching through my trash or my bedroom? If you are a government agent, then you must obtain a warrant supported by probable cause to conduct a search, and if you’re not a government agent, then you must obey private property. Just because I gave it to the trash company doesn’t mean it’s yours.

                      Hence, bullshit.

                    3. What does it mean, then?

                      Spitballing…it means one may not trespass.

              2. For a simple-minded person sure. First of all as compared to making laws enforcing laws is a pretty insignificant power. Refusing to enforce laws, as Obama has recently introduced to the political scene, is a pretty big power potentially but it is completely at odds with how the consitutional system was constructed. The major fights between the executive and legislative branches also revolved around who decided policy not who implemented it. You’ll notice that the most substantial power of the executive branch was always it’s ability to veto legislation. So in the ability to set policy the legislative and executive branch have a balance of power. Contrarily, the Supreme Courts ability to formulate its own policy is unhindered. 5 justices think gays should be married well then gays can get married. Don’t like it tough what are you going to do about it. Where else does that rule by decree exist?

                1. Refusing to enforce laws, as Obama has recently introduced to the political scene

                  Perhaps reintroduced, and certainly quite brazenly, but it is hardly new. Laws have been ignored by Presidents going back to Adams (2). Jackson was a particularly bad offender, and while Johnson (17) rightly prevailed, he still blatantly violated a law passed by Congress.

                2. Contrarily, the Supreme Courts ability to formulate its own policy is unhindered.

                  It is hindered by standing, which is not only a pretty big limitation unto itself, but its appellate jurisdiction can furthermore be restricted by Congress.

                  The SC could not issue a decision without at the very least a) jurisdiction and b) an (allegedly) injured party.

                  Hell, even in gay marriage cases, in order for the SC to rule that such a thing exists, there first had to be a statute saying it didn’t.

                  1. The supreme court decides standing though. That would be like saying Congress’s power is limited because Congress has to set its own rules.

                    And for the president to veto a bill there has to be a bill to veto. That’s not a limitation on the veto power though. The limitation on veto power was the ability to override the veto.

                    1. The President can’t veto laws that are already passed, the SC can’t overturn laws that nobody can challenge, those are both limitations on power. Unless you are saying the SC is conducting a false flag operation, both are pretty big limitations.

                    2. Seeing as how every single law that is passed of any significance is challenged in court what kind of limitation on power is this? A dictator has to sleep sometimes is that a limitation on power? And your point about vetoes undermines your case. The SC can revisit any law any time it chooses. Nothing prevents a SC justice from suggesting a challenge to any law it dislikes to a friendly lawyer. It can even reverse itself. A president sure can’t take his veto back or veto a bill be signed. And if Congress wants to override a veto they need 2/3 support. The Supreme Court exercised its judicial veto based on majority rules. The SC decision is the only simple majority decision not subject to being checked by another body.

                      Imagine if all the president needed to veto a law was one unhappy person to testify on Capitol Hill. Finding one person with standing (which again the SC itself decides) is an infinitesimal obstacle. How is that even debatable.

                    3. A dictator has to sleep sometimes is that a limitation on power?

                      In a way, sure. Of course, most dictators create bureaucracies that never sleep. But even so, the SC is not a dictator. It has limits on its jurisdiction and its members can be removed by Congress. Do you want to keep dodging these points?

                      Nothing prevents a SC justice from suggesting a challenge to any law it dislikes to a friendly lawyer.

                      Thus you are accusing them of creating false flags. You are going to offer some proof of this, yes?

                3. First of all as compared to making laws enforcing laws is a pretty insignificant power.

                  That’s not true at all, given the massive amount of power and deference afforded to regulatory agencies.

                  1. Which again can be completely negated with a Supreme Court decision. And regulatory agencies are pretty much outside the preview of the constitution so it’s impossible to say how the founders envisioned them fitting into the balance of powers. Nevertheless you still would much rather make law than enforce it.

                    And Congress has at one point delegated that power to those agencies. The EPA has discretion yes but only because Congress decided to create an agency to fight pollution and protect the environment. It isn’t clear when they delegated the right to strike down laws by fiat to the Supreme Court.

                    1. It isn’t clear when they delegated the right to strike down laws by fiat to the Supreme Court.

                      The SC claims that power by itself. The Congress has the power to strip them of appellate jurisdiction. Yet even so a “grant of authority” by Congress is just as much “ruling” as the SC issuing a decision. We keep playing this roundabout game, but at no point have you proven the SC more powerful than the other branches. Fuck, if Congress or the President wants to, they can just ignore the SC, and nothing can come of it. As has happened repeatedly throughout history.

                    2. Furthermore, the President issues executive orders “by fiat”. Even Congress can act “by fiat” when it overrides a veto. There is very little automatic review in our system. Actions must be challenged, and even Supreme Court decisions can be overturned through judicious application of the existing processes.

        2. Re: Tony,

          But there is something libertarian about rule by 9 unelected guys in robes.

          There’s nothing libertarian about “majority rule,” that’s the point. I don’t understand why you insist on your clumsy distraction. You look like an idiot.

          1. One, libertarians are morons, two, I already said I understand that libertarianism means libertarians get their way on everything all the time.

            1. I already said I understand that libertarianism means libertarians get their way on everything all the time.

              If you harbored even a remote understanding of libertarian philosophy you would understand why this statement is mind-numbingly stupid. In short, libertarianism is voluntarism and nonaggression. I am sure that something along these lines has been stated to you repeatedly, but you cannot grasp it because you are a moron or you will not grasp it because you are a mendacious, narrative driven piece of shit.

              1. I’ma go with mendacious, narrative driven piece of shit.

              2. It’s a specific set of macro policy choices that you don’t think should be subject to democratic debate.

            2. Except what you just described is the definition of, say it with me now: PROGRESSIVE.

              1. Progressives believe in democracy. But it’s true that both progressives and libertarians want to impose a form of society on everyone. Progressives just don’t want to do it nearly as radically.

                1. Not sure if serious………….

                  1. It is that stupid.

    3. “Not sure I understand what’s libertarian about 9 unaccountable people making law by fiat.”

      I’ll believe this is a principled stand on behalf of Democracy when Fascist Tony complains about regulatory bureaucracies making regulatory law without any sort of democratic input.

      The FCC literally created a system of net neutrality via a 3-2 vote and no one was allowed to see the actual regulations they were voting on until after the vote. When Tony righteously argues that such maneuvers are horrible, then maybe we can talk.

    4. So you think states do have a right to ban abortion then?

      “unaccountable”
      They’re not unacountable; they’re appointed by democratically elected officials who answer for their appointments to the electorate, so they are indirectly accountable.

      And frankly, I value my individual freedom more than I value the right of the majority to take away my individual freedom. Didn’t some Austrian guy get democratically elected to high office once and summarily prove the perils of putting one’s faith in the plurality of the voting population?

  12. Progressives are, predictably, eating themselves.

  13. when duly elected representatives of the people find that legislation grants ‘due process of law’ and ‘equal protection,’ shouldn’t that decision be accorded deference by nine unelected judges?

    No. Deference should be to the document that enumerates the power of the legislature. The default position of the justices of the court *should* be that all legislation is unconstitutional until proven otherwise. The peoples representatives can be, and frequently are wrong (but mostly, they are just mendacious power-mongers) and overstep their bounds. This is where the opinion of the court is supposed to come into play. Without the court, there is no republic. That said, I doubt that Stern fancies a republican form of government and I expect he would prefer more of a direct democracy. I also expect that he does not understand the evil that such a system would likely bring.

    1. The default position of the justices of the court *should* be that all legislation is unconstitutional until proven otherwise.

      If only.

    2. The default position of the justices of the court *should* be that all legislation is unconstitutional until proven otherwise.

      AMEN!

      And I’ll go you one further…

      The court should rule on constitutionality of EVERY bill prior to it becoming law.

      1. In that case gay marriage “bans” and abortion restrictions would have been ruled as constitutional at the time they were passed and their constitutionally would become precedent.

        1. OR…they never would have existed in the first place.

          I never said courts can’t reevaluate the decisions of prior courts.

          Just because they are supreme, doesn’t mean they can’t be fucking political hacks. See Wickard above.

    3. The Supreme Court is the most oligarchic and aristocratic element of our governmental system. The idea that it is the ipso facto upholder of republicanism is strange to say the least. Plenty of republics have done just fine without a guild-based oligarchy ruling by diktat. Republics function by modulating popular opinion by filtering it through various intermediary institutions. The Supreme Court plays no modulating role it subsists its own desires as policy.

      1. The Supreme Court plays no modulating role it subsists its own desires as policy.

        As opposed to the other branches? Oh, but elections! Except that judges are appointed by an elected branch and can be impeached by the same.

        1. If they ever used that impeachment power, you would have a point. The Constitution created a Republic not a direct democracy. The problem with the courts assuming so much of a role in protecting the country from out of control legislatures and exectutives is that we have forgotten that there are other checks against power other than the courts. For example, executives never use their commutation and pardon powers anymore. Those powers are there to undo unjust sentences and convictions. Since we don’t use them, we have this horrible process based justice system where a person can be totally screwed without any recourse as long as the right procedures were followed. And of course since the Courts are considered the only line of defense against legislatures, judges are practically never impeached and thus answerable to no one. That has not worked out well for us.

          1. And of course since the Courts are considered the only line of defense against legislatures, judges are practically never impeached and thus answerable to no one.

            And so are Presidents.

            Yes, every branch likes to pawn off as much as possible to the other branches, in order to never really face any consequences. Everything ultimately comes back to the voters shirking their own responsibilities. The Supreme Court is not particularly afflicted by this problem compared to the other branches.

            1. I think it is. The Supreme Court has done all kinds of awful decisions and is run by elitist jackasses who are mostly slaves to the fashionable opinions of which ever team they come from.

              1. And this differs from the Presidency of Barack Obama how, exactly?

                1. President Obama does not rule for life and has twice been subjected to the will of the people and prevailed. Those seem like huge differences.

                  1. President Obama does not rule for life and has twice been subjected to the will of the people and prevailed. Those seem like huge differences.

                    Yet in practice, his predecessor wasn’t that different and his successor won’t be that different either. And SC justices can be impeached, too.

  14. In fairness, large parts of America are ignoring Roe v. Wade because it’s not really the law anymore; it’s been limited by multiple decisions since then. Also, the decision and its progeny haven’t stopped states from passing laws that restrict abortion in unquestionably unconstitutional ways. That was the point I got from the column.

    1. First, Roe has been totally superseded by the advances in technology. Roe was written before sonograms, before there was any real detailed understanding of fetal development and when most premature babies died. Roe talks in general terms of “trimesters”. Modern science has rendered such distinctions totally arbitrary. The actual language of Roe, today seems very archaic and arbitrary. Even still, Roe recognized the right of states to restrict late term abortions.

      I fail to see how restrictions on late term abortions or requiring they be done in safe clinics by qualified doctors and not be paid for by tax money amounts to unconstitutional restrictions.

  15. Ignoring all progressive liberals and sending them to France and the UK with no passport us the best solution

    1. If we sent all our progressive pols to France. It might actually improve the political class of both countries. Or the progs would truly take the masks off.

      1. “It might actually improve the political class of both countries.”

        No. Progressives basically are French politicians in terms of economic statism but the French (despite the stereotypes) actually have balls and are willing to do things like criticize Islam without declaring the criticizer to be racist.

        All the worst aspects of French politics are already possessed by American progressives, but American progressives are also pathetic in a whole host of other ways that would be alien and disturbing to the French people.

        1. I’m personally even less fond of the French ones than the American ones. In most ways they’re just further along. What in American progressiveness is considered edgy (like abolishing free speech) is already basically the status quo in France. I’m actually inclined to count it to their credit that some American progs criticized the French burqa banning or the banning of headscarves, yarmulkes, and crucifixes in schools, though they likely did it more for ‘multicultural’ reasons than to protect individual freedom.

          The French are what the left wing of the Democratic party aspires to be: all out educational dictatorship, where when they don’t like something, they ban it. The only difference is the French are proud of their cultural, while American progs hate theirs.

          If American progs became more like the French ones, I would be worried. Best case scenario is people see them for their honest selves and turn against them.

  16. spoken like a would be tyrant.

    the entire purpose of the court is to protect citizens FROM democracy.

    to argue otherwise is to destroy the notion of rights.

    democracy is, first and foremost, mob rule. many aspects resemble 2 wolves and a sheep voting on what’s for dinner.

    the only way to prevent this sort of fleecing (sorry) is rights that are inviolate and cannot be taken away by vote.

    otherwise, 9 of us can vote the 10th into slavery or force him/her to buy us all lunch.

    this sort of argument is despicable.

    it’s just guy wanting to be able to steal from and dominate others while pretending to be for the people.

  17. There’s a name for Liberals who actually think something through to its full logical conclusion, Conservative.

  18. “Should America Start By Ignoring Roe v. Wade?”

    I’d prefer we start by giving post-natal abortions to leftists.

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  20. Roe vs Wade was wrongly decided. A “right to privacy” found in a “penumbra” of the Due-Process Clause is too shaky a ground for a right as important as the right to abortion.

    Abortion rights should be based on the THIRTEENTH Amendment, which prohibits slavery and involuntary servitude. For a pregnant woman to be forced to grow her pregnancy and endure full-term labor and delivery against her will is a form of involuntary servitude which enslaves her to her fetus. Therefore, any ban on abortion, any restriction on abortion, runs afoul of the Thirteenth Amendment.

    The woman’s status as a non-slave requires that abortion be not just legal, but also conveniently available to every woman in USA, regardless of where she lives and regardless of how far the pregnancy has progressed, right up until the fetus emerges from the birth-canal.

    1. Slavery prohibition under 13th A is about servitude required against one’s will.

      If the woman in question got pregnant via sex she had voluntarily, there’s no compulsion against her will where the pregnancy is concerned.

      Maybe you should stop pretending to be a legal wizard when you don’t even understand what you’re talking about?

  21. The first stupidity is to ignore Consitutional protections by claiming that “democratically
    elected representatives’ have the utimate right to decide what the laws are. This of course,conflicts with Obama’s extra-legal executive orders that disregard those legal representatives, but beyond that piece of illogic, this argument totally ignores the Constitution and the Bill of Rights, both of which were created expressly for the purpose of disallowing “democratically elected representatives” from tossing aside basic rights. Of course, it’s easy to argue another basic flaw in their argument – that any laws passed by those “democratically elected representatives”
    are, in fact, backed by the majority of citizens. A representative democracy is not a democracy at all – witness in the recent past laws being passed that were approved by less than a third of the electorate.

    1. Healthcare is a basic right. No reasonable person can disagree with this, at least in wealthy countries.

      Libertarians disagree–not, of course, having described some physical truth about why healthcare is not a right (while being defended against trespassers is), but because they are incredible morons who take whatever corporate/Republican rationale du jour as received wisdom of the universe. They don’t think. They speak slogans.

      1. Your so-called “positive right” = someone else’s slavery.

        But if he also has this magical right to force someone else to provide him with healthcare, then you have that same obligation to provide it for him–and the whole concept negates itself, as does the practice of collectivized healthcare (which is why there is no healthcare in collectivized countries, only a line for you to stand in).

        It is the leftoids who gibber in sounds and slogans, never stopping to think through the consequences and premises of whatever line is being pushed by all the leftoids on tv and in shitty internet blogs. You are collectivized, proudly selfless sheep, the whole stinking lot of you.

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  25. Liberals also want to shutter Congress. They want an imperial dictator

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