Drudge Retort: The Other Side of the News
Tuesday, January 09, 2018

Rulings by the U.S. Supreme Court often come with great anticipation and attention, even true drama. Anxious crowds gather outside the court at dawn. Opinions first go out on paper to the waiting hands of television news interns, who sprint the documents to correspondents to be immediately deciphered on the air. Justices later announce their decisions in open court, and occasionally read aloud the opinions. But when the court fixes mistakes in its opinions, it does so very quietly. No press releases. No public reading of corrections.

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This happens incredibly frequently. Although most of the errors are rather minor.

#1 | Posted by Sycophant at 2018-01-09 09:17 AM | Reply

"Those records often become the public's property."

Often? It is always the public's property and if the court pretend otherwise it is reason to impeach those Justices. Why do we allow the SC to operate as royalty, IMHO, it is because of lifetime appointments. We should end lifetime appointments and replace it with a meritocratic system devised by the legal profession which would have appointments for a term in office no different than Senators.

#2 | Posted by danni at 2018-01-09 09:19 AM | Reply

Omg. So now we know why America has supposedly become worse and worse. No need to worry anymore! Our country's problems are all because the Supreme Court doesn't hold a press conference available to the entire world that they changed an opinion. We can finally begin to rebuild this country because we know the cause. More winning every day now!

#3 | Posted by humtake at 2018-01-09 11:35 AM | Reply

#2 | Posted by danni

The lifetime appointments are in theory something that is supposed to put them above politics in making their decisions. A truly GOOD judge would be above politics but we know in reality people's biases always come into play. It is also something that should provide continuity and stability. Perhaps you are onto something but what you are purposing is just as likely to be abused as anything else.

#4 | Posted by GalaxiePete at 2018-01-09 11:45 AM | Reply

"Perhaps you are onto something but what you are purposing is just as likely to be abused as anything else."

Possibly so but we wouldn't have Justice Thomas or Roberts on the court for life. Lifetime appointments are just a very bad idea, probably the founders had good intentions but it's a recipe for what we have today which is domination by the rich who curry favor with the members of the court, accept them into the aristocracy and then expect them to protect the oligarchy, which they gladly do. If you read the Constitution the power for the SC to overrule Congress does not exist. We need a SC to reverse Marbury vs. Madison and put the court back into the business of deciding cases according to the law that Congress makes, not judging whether or not Congress has the right to make laws.

#5 | Posted by danni at 2018-01-09 11:56 AM | Reply

SCOTUS has the power to rule that a law is unconstitutional, Danni. Example, do you think the court has no authority to nullify a law that makes it a crime to criticize POTUS?

#6 | Posted by JeffJ at 2018-01-09 12:49 PM | Reply

"SCOTUS has the power to rule that a law is unconstitutional, Danni. Example, do you think the court has no authority to nullify a law that makes it a crime to criticize POTUS?"

That power was assumed by the SC in Marbury vs. Madison, it does not exist in the Constitution. In fact the Congress has powers to rule over the SC which it just doesn't exercise.

"The Marbury v. Madison decision expanded the power of the Supreme Court in general, by announcing that the 1789 law which gave the Court jurisdiction in this case was unconstitutional. Marbury thus lost his case, which the Court said he should have won, but, in explaining its inability to provide Marbury the remedy it said he deserved, the Court established the principle of judicial review, i.e., the power to declare a law unconstitutional.[1]"

en.wikipedia.org

#7 | Posted by danni at 2018-01-09 01:09 PM | Reply

That power was assumed by the SC in Marbury vs. Madison, it does not exist in the Constitution. In fact the Congress has powers to rule over the SC which it just doesn't exercise.

#7 | POSTED BY DANNI

That's not accurate. Marbury v. Madison merely recognized what was inherent in the Constitution that people really didn't think through. Congress does not have the power to overrule the Supreme Court either. They can tailor a law or change it. But they can't overrule Constitution based decisions without changing the Constitution.

#8 | Posted by Sycophant at 2018-01-09 02:37 PM | Reply

That power was assumed by the SC in Marbury vs. Madison, it does not exist in the Constitution.

Danni out herself as an "originalist" albeit the disfavored "literalist" strain of originalism. Nevertheless the question is raised "who decides?" One party to a suit says Congress enacted a statute that says I can do this. The other party to the suit says Congress had no constitutional power to enact that statute. That was the situation the Marbury court faced. The Supreme Court's power to decide, judicial review, is implied in Articles III and VI.

The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.[12] en.wikipedia.org
In fact the Congress has powers to rule over the SC which it just doesn't exercise.

Yes Congress can override SC interpretations of statutes but not Constitutional interpretations. Congress does exercise that prerogative yet you seem oblivious to the fact.

Altogether, the authors identify 275 Supreme Court statutory decisions overridden by Congress between 1967 and 2011 ... papers.ssrn.com
A prime candidate for Congressional override is your favorite whipping boy Citizens United. On that one, you're right, Congress hasn't done a damn thing.

#9 | Posted by et_al at 2018-01-09 02:38 PM | Reply

The lifetime appointments are in theory something that is supposed to put them above politics in making their decisions.
#4 | POSTED BY GALAXIEPETE

Yeah Mitch McConnell ruined that idea.

#10 | Posted by IndianaJones at 2018-01-09 03:18 PM | Reply

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#4 | POSTED BY GALAXIEPETE

I think a single 10-year term (or maybe even as much as 12) might yield a better result. It would need to be a single term in order to avoid the need to seek anyone's approval for re-appointment.

#11 | Posted by WhoDaMan at 2018-01-09 11:35 PM | Reply

Also, I believe that the increased turn-over of justices would allow the court to better reflect the changes in society and culture that cause people to view changing situations such as attitudes about race and gender, for example. The founders didn't address the rights of transgender people, for example, because they didn't know there was any such thing. But there has been a change in what defines "persons" in terms of the 14th Amendment. It doesn't change the Amendment to change the interpretation of the word "person".

#12 | Posted by WhoDaMan at 2018-01-09 11:52 PM | Reply

Also, I believe that the increased turn-over of justices would allow the court to better reflect the changes in society and culture that cause people to view changing situations such as attitudes about race and gender, for example. The founders didn't address the rights of transgender people, for example, because they didn't know there was any such thing. But there has been a change in what defines "persons" in terms of the 14th Amendment. It doesn't change the Amendment to change the interpretation of the word "person".

#12 | POSTED BY WHODAMAN

I don't doubt your good intentions but I think this is a horribly flawed view of the judiciary. Much of what you want enacted by 5 out of 9 people wearing black robes is much more appropriate, and culturally acceptable, in the legislative branch.

#13 | Posted by JeffJ at 2018-01-09 11:56 PM | Reply

I don't doubt your good intentions but I think this is a horribly flawed view of the judiciary. Much of what you want enacted by 5 out of 9 people wearing black robes is much more appropriate, and culturally acceptable, in the legislative branch.
#13 | Posted by JeffJ

--------, legislatures give us ---- like the DOMA and abortion restrictions. the SC should protect us from the dictatorship of the majority.

#14 | Posted by truthhurts at 2018-01-09 11:59 PM | Reply

--------, legislatures give us ---- like the DOMA and abortion restrictions. the SC should protect us from the dictatorship of the majority.

#14 | POSTED BY TRUTHHURTS

You are speaking to something completely different than what Whodoman is speaking to. You are actually advocating textual originalism with the examples you cited (well, not so much with abortion restrictions, but certainly DOMA). In fact, on a different thread, I cited Obama's non-enforcement of DOMA as an example of constitutionally-sound non-execution of the law. Whodoman is talking about that toxic strain of judicial philosophy that views the Constitution as 'a living, breathing document'.

#15 | Posted by JeffJ at 2018-01-10 12:06 AM | Reply

"Whodoman is talking about that toxic strain of judicial philosophy that views the Constitution as 'a living, breathing document'."

Okay I'll bite.
When did the Constitution die?

#16 | Posted by snoofy at 2018-01-10 12:40 AM | Reply

Looks like Goofys ? mark key is working again.

#17 | Posted by Rightocenter at 2018-01-10 12:47 AM | Reply

How can you have a "living, growing" society with a structure that is "unchangeable". Yes, it can be amended, but have you not noticed that things change a lot faster these days than can be accommodated by a system that is designed to be very difficult to change. And the pace of change is also accelerating. Sooner or later, it will become irrelevant if there is not a way to relatively quickly adapt to changes brought about by, say, technology and medicine. I believe it is more important to operate from the spirit of the constitution than by the letter. Kind of like the bible.

#18 | Posted by WhoDaMan at 2018-01-10 01:17 AM | Reply

"How can you have a "living, growing" society with a structure that is "unchangeable".

They won't answer, mostly because they can't, but partially because they can't think of a clever deflection either.

#19 | Posted by snoofy at 2018-01-10 01:21 AM | Reply | Newsworthy 1

"that toxic strain of judicial philosophy that views the Constitution as 'a living, breathing document'."

There's that selective strict constructionist nonsense again.

#20 | Posted by DirkStruan at 2018-01-10 01:25 AM | Reply

How can you have a "living, growing" society with a structure that is "unchangeable".

The 1st Amendment doesn't change with technology.

Our structure of checks and balances doesn't change with technology or social change.

Sooner or later, it will become irrelevant if there is not a way to relatively quickly adapt to changes brought about by, say, technology and medicine. I believe it is more important to operate from the spirit of the constitution than by the letter. Kind of like the bible.

#18 | POSTED BY WHODAMAN

So what? It becomes a completely malleable document that can be rendered completely meaningless on the whim of 50% + 1 of our population? Or worse, that ideological bureaucrats can impose their will on the entire country with no means of accountability? Or does SCOTUS just become a Super-legislative branch, whereby they are the sole arbiter of contentious issues as opposed to being arbiters as to whether or not laws that are passed are Constitutional?

I wholly reject rule by technocracy and I think the unchecked powers of the administrative state is one of the biggest dangers facing the long-term stability of this country.

#21 | Posted by JeffJ at 2018-01-10 07:18 AM | Reply | Newsworthy 1

How can you have a "living, growing" society with a structure that is "unchangeable". Yes, it can be amended..." - #18 | Posted by WhoDaMan at 2018-01-10 01:17 AM

Don't pretend that because you don't like the method for changing something that it doesn't exist...and then admit in the next sentence that it does exist.
If you can think of a better, quicker, more efficient method for changing the Constitution, lobby for that amendment to be made. Don't whine just because the method is designed to be hard, work to overcome the objections of the people who don't agree with your ideas.

They won't answer, mostly because they can't, but partially because they can't think of a clever deflection either. - #19 | Posted by snoofy at 2018-01-10 01:21 AM

Don't fool yourself into believe that people can't answer it. They're just more polite than me. They must not want to point out your mistake.

#22 | Posted by Avigdore at 2018-01-10 12:31 PM | Reply

"The 1st Amendment doesn't change with technology."

It changes with technology. Reno v. ACLU changed our understanding of the First Amendment, and conformed it to Internet communications.

But the First Amendment also changes with who's on the bench. Citizens United did that.

If the law were dead, it wouldn't need living judges to interpret it. It would be like looking up a word in the dictionary. Oh, and the dictionary changes all the time too, much to the chagrin of hidebound reactionaries such as yourself.

#23 | Posted by snoofy at 2018-01-10 01:06 PM | Reply

Honestly, if you want to fix the system, just require a super majority of 60 Senate votes.

#24 | Posted by Sycophant at 2018-01-10 03:23 PM | Reply

Which is exactly how every stupid news story retraction is handled. This is how all legislative goofs are dealt with. Its how the real problems with the ACA should also be handled, the problem is Republicans refuse to follow that protocol because they fear the popularity of the ACA.

#25 | Posted by bayviking at 2018-01-10 03:31 PM | Reply

#24 All bills need 50/50 participation to be passed. That would solve problems (by not letting anything get passed - barely anyway)

#26 | Posted by HeuristicGratis at 2018-01-11 05:35 AM | Reply

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