Please see Checks & Balances: A Reply to Mr. Bradley.

First, my point that there are various checks and balances available to Congress and the President within the Constitution. Limiting jurisdiction is one. It simply is. If you stop reading MoveOn.org position papers, you’ll see that such proposals have been discussed in law reviews by law professors for decades. Since these things are found, or not forbidden, by the Constitution, using them is not an attack on the Constitution.
Likewise, the Constitution does not establish the size of the SCOTUS, so FDR’s proposal was constitutional. Constitutional amendments may be one check, but not the only one. (Now if you want to argue that the unwritten rules of democracy require a willingness to follow tradition, I’d agree and point out that the unwritten tradition was to not use the filibuster to deny the majority party a vote on judicial candidates for whom there is majority support. The point is that – as occurred in the fall of Republican Rome – one violation of a “principle of self-restraint” creates a cascade of subsequent violations by other players, which is always bad for a democracy.)The rogation of the Supreme Court in the early years of the Republic was not seen as an attack on the Constitution – it simply wasn’t seen that way – because it was allowed by the Constitution. (And by the way, you should bone up on Marbury – judicial review is not found in the Constitution and the decision, which announced judicial review, resulted in a decision that favored Jefferson; the genius of the decision was that it couldn’t be politicall attacked by Marshall’s political opponents.)

You simply didn’t come to grips with my question about checks and balances. Try to see it from another perspective, which, I agree is difficult when you demonize and dehumanize the other side, but it is sometimes a useful exercise.

For example, the “Republican plan…to kill justices”? Where outside of the echo chamber does such a plan come from, and please don’t quote me the comments of a single legislator taken out of context, which would not be keeping the discussion on the playing field.

Second, your whole piece involved a “theocratic” take-over, but you lump every religious conservative into the same category. We’re not in the same category, which you have to come to grips on if you want to get any traction on the theocracy argument. Evangelicals are not fundamentalists. Since you are prejudiced against fundamentalists, you should know who you hate.

Third, what happened to my point about loose comment about “uneducated, easily manipulated white trash” voters, which I believe you would find singularly offensive if applied to, say, illegal immigrants or African-Americans? Is it only bigotry if it involves non-white, Democrat-approved minorities?

Fourth, I’ve explained the issue about the Democrat lower court judges applying the law and agreeing with the Republican/Democrat appointees on the SCOTUS. If the rah-rah echo chamber of MoveOn. org has forgotten the fact that the only court finding in favor of Gore was SCOFLA, that is just not my problem, but it is a reason why the MoveOn mindset is so out of touch with a majority of Americans.

Fourth, “Live your religions – if you can”, what the hey? Is your message that all people of faith are hypocrites? If so, see my point about demonizing the opposition. The fair response is that the various Christian religious people I know do live their religion, which teaches them that they are sinners and in need of grace and forgiveness, but feel free to call them hypocrites if it makes you feel superior.

Take care.

At any rate, as I recall, the year SCOTUS didn’t meet was another situation where Congress was displeased with SCOTUS rulings. I’m not sure that it’s true that “no one thought this was an attack on the Constitution.” In fact it occurred, as I recall, in response to the case of Marbury v. Madison 5 U.S. 137, 163 (Cranch) (1803). I’ve mentioned that case numerous times on my blog. And there definitely were people who saw this as an attack upon the Constitution.

When the Supreme Court reconvened in February 1803, Marshall was faced with a dilemma. If he issued the writ of mandamus, the Secretary of State, James Madison, would ignore it. If he refused to issue the writ, it would appear that the Court had trimmed its sails due to political exigencies. Marshall’s brilliant solution was to recast the case as one involving the Court’s power to engage in judicial review, that is, to ascertain whether an Act of Congress meets the requirements of the Constitution. Marbury had requested the Court issue a writ of mandamus pursuant to jurisdiction granted by the Judiciary Act of 1789. Marshall held that Section 13 of that Act, which gave the Court jurisdiction to hear Marbury’s claim, violated Article III of the Constitution. Based on the Supremacy Clause of the Constitution, any Act of Congress that was contrary to a provision in the Constitution was unconstitutional, and it was the Court’s duty, as the body given the power to interpret the law, to hold unconstitutional Section 13 of the Judiciary Act of 1789. Thus, the writ would not issue in Marbury v. Madison. Jefferson won the battle, but Marshall won the war. Nine days later, the Court held constitutional the repeal of the Judiciary Act of 1801. — Michael Ariens, Supreme Court Justices: John Marshal (1755-1835)

It’s unclear what would happen if the Congress actually tried to completely annihilate the Court; e.g., if they did try to eliminate sessions. We discussed this once on my Federal Courts class over at San Joaquin College of Law. The instructor, Assistant United States Attorney Boone, did not think it would fly.

It wasn’t that the Congress didn’t fund the Court, by the way; it was that they repealed the Judiciary Act of 1801, returning us to the situation under the Judiciary Act of 1789, with the result that the Court was shifted from two terms per year to one. This was a restructuring, not a “de-funding,” that resulted in a 10-month gap in sessions of the SCOTUS. (For those readers who don’t know, SCOTUS is the abbreviation for “Supreme Court of the United States.”)

The proper response to not liking rulings of the Supreme Court is not to adopt the Republican plan of either starving the court, floating the idea of murdering Justices, or politicizing the legal system. The proper response is constitutional amendment.

Of course, that’s just too hard when you’re in a minority which can only seize political power through owning the companies that deploy voting machines. It’s one thing to move an election a few percentage points, it would be entirely another (and voting machines aren’t used, I think, for this anyway) to try to fake the vote enough to get the super-majority needed for an amendment.

Your speculative argument about SCOFLA and politics is missing a few premises. Why not go ahead and flesh out the entire argument (to my other readers: because there’s no flesh there)?

Lastly, as to the difference between evangelicals and fundamentalists, I believe there’s actually an overlap. But it gets difficult to know, because the non-denominationalists who often incorporate the term “evangelical” into their church names seem to do so without knowing the history of the term. Many of them are descendants of German anabaptists. At any rate, I see in both the outspoken evangelical and in the outspoken fundamentalist movements a common willingness to obliterate the Constitution in favor of enforcing their religious mores against the rest of us. And it’s that willingness that I think we could do without.

Live your religions — if you can — don’t cram them down our throats as compensation for the fact that your light does not shine before men as an example to be followed.

Imagine for a moment that the SCOTUS was systematically frustrating the will of the people on some issue that liberals found important and desirable. I know that this might be a difficult exercise for liberals, but if you throw your memory back to the recent past you might remember that “conservative” justices were using something called “substantive due process” to overturn sensible social legislation, such as wage and hour laws. What would you have counseled at that time? Would you have placidly accepted the “wisdom” of the SCOTUS as a kind of eternal truth? I don’t think you would have. I also think that FDR’s contemplated solution was entirely constitutional and might have been very healthy for democracy.

Also, I’d be concerned about being called a … what’s the word.. oh, yes… a “bigot” if I ever engaged in describing some group as “easily led” because of their “lack of education.” If I ever said such a thing about any core constituency of the Democratic party, I’d forfeit forever my place in polite society.

Perhaps, this cultural group with the inferor educational track record — I believe they are called “Scotch Irish” — holds its belief in all sincerity. (And, incidentally, the inferior education is a cultural trait, which goes along with high rates of military service and heroism.) The truth is that there is a very deep bigotry on the part of the left against this historically marginalized and politically weak social group. The left gets a lot of mileage about demonizing this group, but it lacks any substantial political power. I’d bet that there are more Methodists in Congress than fundamentalists. But this technique of vilifying a minority group is as old as politics, which might come as a shock to a group which hold itself out as the very incarnation of tolerance, open-mindedness and diversity.

[Also, you might want to bone up on the difference between "evangelicals" and "fundamentalists." They are actually different groups entirely, a fact which they are often quick to share; for example, Lutherans are "evangelicals" but not "fundamentalists".]

As for Bush v. Gore, why don’t democrats ever remember that the lower courts – all Democrat appointees – always found in favor of Bush and were reversed by the Democrat majority in SCOFLA? What that told me as a practicing attorney, who knows that trial judges generally are quite pragmatic and unimaginative in limiting themselves to existing law, was that SCOFLA was engaging in obvious political readings of the Florida law. Federalism doesn’t require that we allow one state court to hijack a national election by changing the rules after the game has been played – which is what SCOFLA’s overturning of the lower court decisions means. I know that this doesn’t play into the ongoing “pity party” about Bush v. Gore, but a fair and honest evaluation of the subject has to take into account those anomalous trial court decisions.”

You’ve got some pretty sophisticated software that is able to censor dissenting views. (Of course, I have my tongue planted in my cheek when I write that.)

Amen to that. Now if only the Supremes had followed that in Bush v. Gore and we may never have had to suffered through the travesty that is the Bush presidency. *sigh*

What’s needed isn’t either more conservative judges or more liberal judges. What’s needed is judges who will attempt to follow the rule of law and who will try not to allow their political beliefs to impact their decisions.

I happen to believe it’s impossible for anyone, even judges, to compartmentalize well enough for that to be a reality, but when the attempt is made, I believe a fairer, more consistent and more “rule of law”-compatible result is achieved.

If someone wanted to install a theocracy, having the legislative branches find a way to control the judicial branch would be the ideal way to go to get started. Install nothing but evangelical zealots in judicial seats and then start making laws that contradict the Constitution (more importantly the Bill of Rights). They wouldn’t have to change or even ammend the constitution to get away with it, because the judges in their pocket could simply rule that the new laws do not violate the constitution. What a nice illusion that they would create. They could say, “Look, there is our Constitution, fully intact. How can you say that you have no freedom?”.
Could the Constitution become merely ornamental? A conversation piece of the historical progression of our civilization? The Patriot Act alone makes me think so. Here we have a bill passed into law that wasn’t even read by most of the people that voted for it (yet they somehow were able to debate it?). A law that violates the Bill of Rights should never be allowed. Is it just me or does anyone else think it odd that when an attack on the United States of America has taken place, that the first order of business is to suspect all of your own people? I’m sure that history has a lot to tell us of civilizations that have turned the mircoscope on their own people. I’m sure that an intelligence strategist could provide a list of reasons why this might work, but no excuse justifies ignoring the Bill of Rights. Without the Bill of Rights, we are not a free country.
The price to earn freedom is the cost of lives lost in fighting to obtain it. The price of maintaining freedom is educating one’s self as to hold, represent, and exercise their own individual views and opinions. To allow the pulpit to determine one’s
opinion is to willingly trade true freedom for mere religious ideology.