Decisions like this illustrate what a hollow farce the modern federal courts’ approach is to Constitutional governance.
To be clear, courts are not supposed to change policy or make new policy, they are just supposed to interpret the law as written.
So supposedly this ruling is “not a change in the law” but rather a discovery that actually the law has always been this way but oops, someone read it wrong 158 years ago and literally everyone has read it wrong for the ensuing 158 years.
Until now, when an unusually wise and discerning small group of people finally read things the right way.
I strongly support the substance of this decision, the ban was stupid overreach. But I also recognize that decades of agreeing with the substance of similarly silly “discoveries” has created a situation where federal judges have essentially infinite leeway to inject their own opinions into the law under cover of “wow, I finally discovered the correct interpretation” (no matter how tortured).
With my respect for you as a person, I think your idea here is demonstrating both ignorance and cynicism to the way the law works.
This type of interpretation of law is by design.
When lawmakers write a law, it’s specifically the judicial branch’s job to interpret it, which is exactly what is happening here.
It’s also exactly how you describe by design: legislators can pass laws that say whatever they want. They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution. Legislatures can make illegal laws just by having the votes to do so. The role of the judicial branch is to interpret the constitutionality of laws that are made.
Critically, a lawsuit has to challenge a law’s legality and constitutionality in order for it to be interpreted as unconstitutional. There also has to be a harmed party that shows they have standing to make that lawsuit.
It’s entirely possible that nobody brought this specific argument to a judge in the last 158 years. It’s also entirely possible that what is acceptable by reasonable people in society has changed over time, which can alter the interpretation of laws. That is normal, expected, and by design.
I think comments like yours unnecessarily demonize “activist judges” when this is the designed function of their role.
The overwhelming use of civil instead of common law by the world would beg to differ that there is any consensus on this.
I agree with a lot of the advantages of common law that can sort of legislate through precedent. But it does make it basically impossible to be on notice of what is illegal and what isn't, particularly in the modern world where not only are there hundreds of thousands of law and thousands of pages of federal "regulations" bound as law but you also have to know all the precedent and asterisks to the interpretations to know what is actually illegal.
“They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution”
I think that would be constitutional, but in conflict with other laws.
It would violate equal protection.
Someone forgot to tell Brett Kavanaugh.
How so? Left handed people aren't human. Just like how criminals aren't treated like normal humans with equal rights.
Seriously though, I don't think it technically violates anything given that we do have a set of humans (criminals) that we treat unequally. Culturally we believe theft and murder gives us the right to treat such people who do such things unequally and we've encoded that into law. It is simply another culture shift to interpret left handedness as the same thing.
I mean the example is absurd but it's a valid example. Maybe a more realistic example is pronoun usage and the forced recognition of multiple genders other than two. Taken to the extreme we would have to accept that anyones made up gender is real and we will be forced to recognize their beliefs that these things exist.
In CA you can already get this classified as harassment and get fired from your workplace.
And just to be clear I agree with the whole made up gender and pronoun thing. If you want me to refer to you with they instead of she or he that's fine, but the point is that all of this is clearly culture/opinion based and none of it is a universal right because what is "universal" is ALSO an opinion.
The left handed tax law could be passed and declared unconstitutional almost instantly under a challenge brought by any individual that referenced the equal protection clause of the 14th amendment, to any federal court. if the government appealed it at all, the appeals court would agree with the lower court, if the government appealed it again, the Supreme Court would also agree with the appeals court and lower court, and it would be a phenomenal waste of time.
That's the only validity of the example.
Nothing occurring in the court system matches the angst of people that view recent appointments and decisions to be invalid. Anything overturned only affected the day to day life because there was never an actual federal law passed at all. The courts are operating much closer to how people imagine them, than in prior times, despite people believing the opposite is occurring. Media.
Didn't go that way for brown people with accents did it.
what specifically are you referring to? more like, which?
You're missing the philosophical principle that the more laws you have the wider the breadth of the domain that laws can interpret becomes, and that laws generally accrue. This is not by design, and there are jurisdictions which explicitly curtail this by having sunset laws.
The power of the judiciary to "interpret" the constitution was a huge chink in the armor of the Constitutional order. A handful of unelected judges can effectively amend the constitution via simple majority, but can only be "overruled" by the people if there is extremely broad opposition (as a constitutional amendment requires 2/3 of both houses)--which is, of course, a total inversion of the democratic-republican principles which brought our country into being. The practical effect is that, while the people have some limited democratic control over the government, control of the state has been wrested away from them by the Judiciary. This was fine so long as the Judiciary saw themselves as honest arbiters of the constitutional order, but the moment the Judiciary began to see themselves as architects rather than mere arbiters, the constitutional order was at an end.
The check elected officials have on this is to pack the courts. This is what FDR threatened to do to get through (at the time unconstitutional, now magically "not") a bunch of popular legislation.
FDR is written about phenomenally in US history books for reasons that don't seem to match the reality of what happened. We can separate foreign policy wins from domestic policy losses, just like we do now.
The now-heralded New Deal was getting torn apart by the Supreme Court, program after program for half the decade. And the remaining parts of the New Deal still exist on shaky constitutional ground if you really look at how much of an abberation they are and how they survived. Spoiler alert, for things that remain its nearly impossible to get standing in Federal Courts to question them and the people that could get standing aren't interested and benefit from them.
FDR threatened to pack the courts, just like modern presidents and party constituents demand.
It was actually very partial that the FDR-era Supreme Court backed off from that threat. So to consider our current Supreme Court to be the aberration is inaccurate, it is even more autonomous.
Everything I look at gives me the opposite conclusion of the public discourse, except when I'm in very small legal circles.
Isolating yourself to small legal circles can unfortunately open yourself to the vulnerability of mistakenly appealing to the authority of legal training that has specifically been tailored for success in the system we're in, which may optimize for coming to conclusions that help you win cases rather than optimizing for some other analysis. Looking at the bigger picture is an entirely different skill set than having legal training to be a good lawyer, so I think it's folly to place in special stake in "small legal circles" for this and in the worst case, might usher you into an echo chamber built out of practical adaptation.
If I wanted a healthy view I might include those with legal backgrounds but they would only be a small selection of the landscape of ideas to draw from, I certainly wouldn't place special stock in the "legal" community.
I'll watch out for that. But ultimately I do want my view of the world to be the law of the land, which means "win cases", specifically reflecting my view and my currently obscure arguments. My observation is that populist arguments are the ones that fail because they don't understand the mechanisms and obscurity.
A now-less-obscure view is based on the observation that the New Deal used a completely novel and expansive view of the interstate commerce clause that completely subjugated the states and essentially created a parallel nation overlaying the collection of states - what was called the Federal government for practicing federalism was now only nominally federal, as Congress now only grants exceptions for state autonomy just to retain support on occasion. Despite how disruptive it would be to review this arrangement, this 100 year use of the interstate commerce clause is completely on shaky constitutional ground
The entire federal agency apparatus could be Thanos-snapped out of existence, just like the 1930s Supreme Court was doing
(I don't want that specific thing to happen, and I don't see the alternate federal authority for most of the agencies and their regulations if it were to happen, so that would be very disruptive)
I don't view the New Deal changes in constitutionality as prevailing through some from of reasoning of arguments per se, just projection of power. Projection of power is unlikely to be changed through lawfare. Usually it is not relinquished without violence. The violence that set the stage for consolidation of federal power, IMO, was in large part the civil war (removal of secession as a check on federal power, IMO the most powerful check states had) but of course also the concerns from the aftermath of WWI.
The fact the ICC was used is the least consequential part of the whole thing. That's just what was picked by the whig-gods to present legitimacy to the projection of power. Could have just as well been a proclamation from god under some other system. If the ICC expansion non-sense is struck out of some kind of convenience for some matter they are attending to, I don't think it changes much, just means the priest will utter some other magic phrase.
Only if it could be done in an apolitical way, which seems impossible in the current political climate. The legitimacy of the US Federal Government depends on the perceived continuity of the (now mythical) constitutional order. If one party or the other packs the court without bipartisan support for their nominees in the Senate, it would be denounced by the other as an authoritarian end-run around the constitution--as a revolutionary rather than a mere procedural act. IMO this would be more likely to foment disunion than it would be to restore the bygone constitutional order.
The fabrication of legitimacy is indeed the main task of the supreme court.
However violence is another way to project legitimacy. Putting someone away for life or drone striking a goat farmer provides real legitimate proof of power.
The government is much stronger than it was 100 or 200 years ago. So perhaps it can dispense with appearances of judicial legitimacy using the currency of violence. It's not clear they need to continue with the fiction of an impartial court to hold their grasp; like a space ship they can jettison that hallowed out rocket having already safely been placed into orbit.
The size of the Supreme court is not defined in the Constitution. So, packing the court is not unconstitutional. It is dishonest and shady as hell. But, the only check on the power of each branch are the other two branches that don't desire to be sidelined by one branch growing more powerful. All three branches are supposed to be in contention for power within the bounds of their interpretation of the Constitution. It is the duty of the other two branches to deem an action of the third branch as unconstitutional.
But, the system has been broken over time. Congress abdicated the majority of their power to the executive and somehow judicial became the official arbiters of constitutionality.
I don't think it does demonstrate that at all, it would demonstrate that if there was a prior court challenge were it was found to be constitutional. but there was not, this was the first court challenge, hundreds of millions of people, maybe over a billion over the last 150 years never thought to take it to federal court
one person finally did, and this decision matches what a lower court found in 2024, this is a pattern of consensus actually. the government (executive and legislative branch) is losing, while the judicial branch has complete consensus
this would actually be the worst example of anxiety about a fictionally different modern federal court, and seems more so to be an example of not knowing how they work at all
one suggestion that I've seen in other democracies is that a law passed by the legislature can be sent for constitutional review immediately by the President, instead of simple sign or veto. In the US system, all laws can be passed and it takes someone challenging it, and of the people that challenge the law they have to find a way to have "standing" - as in, prove how they were affected by the law - which is a huge risk if the law has a penalty you have to risk being affected by. That's how we have a massive nearly infinite set of laws that have never been challenged.
The decision 158 years ago that an activity could be banned through taxation was obviously in error.
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If that 'sovereign' is democratically elected, and acting within their prescribed authority limits, it absolutely is democratic.
Having an elected official declare martial law during a violent uprising doesn't mean the people's will is not being done.