Can something that is codified still be struck down by the Supreme Court?

[Herx]

I'm confused at to whether codification saves something like same sex marriage (currently debated on Congress) from being struck down by the Supreme Court. Can anyone explain? Thanks.

[rurallib]

1. I am no expert, but the SCOTUS invalidates laws all the time as I understand it

That was the power they gave themselves in Marbury v. Madison.

I have been wondering if we will be looking at literally a constitutional showdown over marriage, contraception or perhaps some aspect of integration. Stay tuned

[kirby]

2. Codification does not prevent...

The judicial branch, ultimately leading to the supreme court, can rule any law as unconstitutional.

Some conservative jurists claim if a law has been passed, it gives more weight against overturning the will of the people, but I think we have seen these right wing jurists appointed by the Federalist Society will rationalize any behavior.

EDIT: The right wing SCOTUS has said there is no right to privacy in the constitution and that is how they rationalized their decision. Passing a law would change the argument to something else. They will probably then argue that the constitution protects life, liberty, and the pursuit of happiness, and since they believe life begins upon penis insertion, they would overturn it again.

[DemocratSinceBirth]

19. Please see Post 18.

[DemocratSinceBirth]

3. Theoretically they could but in the real world likely not.

So much of our system is built on custom.

[DLCWIdem]

6. Yeah but

Didn't we say that about Roe v Wade

[Herx]

12. In other words, as long as Clarence Thomas respects what's custom

We should be alright.

Oh boy.

[DemocratSinceBirth]

18. Congress Can Pass A Law Restricting SCOTUS's Jurisdiction.

They thought about doing it regarding busing. Then SCOTUS could theoretically overrule the law restricting their jurisdiction. How do they enforce it? So much of our system is built on norms and customs. That's why TFG is so dangerous.

[kirby]

20. That could be one option...

Previous courts have said this jurisdiction limiting process is legal and it should be honored as Congressional intent. But as you say, everything attacking our system today is unprecedented...throwing out norms and customs.

There is also the case of whether our party has the boldness to do something like this. I doubt it.

[DemocratSinceBirth]

23. Congress invalidates executive and legislative decisions "all the time".

I doubt they would do it on marriage equality or abortion. There are only two or three jurists who would go that far imho. There's scuttlebutt that there are sixty votes to codify Obergefell. If that's true it's legislative malpractice not to put it to a vote immediately.

[relayerbob]

4. Absolutely, happens all the time

The merry-go-round never stops

[RockRaven]

5. Yep. They can strike down, invalidate, rule unconstitutional any law they like.

They can rule whatever they want, for no good reason. Look at some of their recent rulings for examples. There are no limits on their rulings.

They can literally rule that up is down, or that there is no such thing as up and down.

[onecaliberal]

7. Yes, and trust me they have only started.

[DetroitLegalBeagle]

8. Yea, they can strike down a passed law.

Codifying something doesn't make it immune to a court challenge and being overturned. The only way to do that is to codify it into the Constitution itself.

[In It to Win It]

9. Yes. Legislation codifying same-sex marriage can be struck down by the court, assuming

someone actually challenges the legislation. The Supreme Court can pull just about any justification out of their ass to strike it down.

However, codifying it gives much stronger ground than just having Supreme Court precedent. That's two pillars that would need to be struck down, with (1) SCOTUS would have to overturn a really recent decision, and (2) it also has to strike down this law.

They would have to knock down 2 instead of just 1. That barrier is a lot higher if Congress passes the same-sex marriage bill.

[walkingman]

10. Not a lawyer but it appears it doesn't - the following might help

I think the only way to guarantee a right is a Constitutional Amendment - good luck with that I do think it might make it harder though? Another justification to "pack the court".

There is a problem with thinking that federal legislation will resolve this issue and keep abortion from returning to the Supreme Court. Even if Congress passes a law codifying Roe v. Wade, that does not mean that the brazen precedent-busting Dobbs Supreme Court will not have five votes to strike down the new law.
That is the problem with those who say that the court is simply returning this issue to the people. If Congress tries to pass a law, either way, that law will likely land right back in the justices' lap. The Supreme Court retains the power to reverse the people's will as expressed in the actions of Congress. That is what the power of judicial review means. To quote the most famous case in constitutional law, Marbury v. Madison, it is for the courts to "say what the law is."

https://www.cnn.com/2022/06/30/opinions/codifying-roe-scotus-abortion-nourse/index.html#:~:text=Constitutionally%2C%20however%2C%20there,the%20law%20is.%22

[MineralMan]

11. That's a difficult question.

The only sure way to remove the Supreme Court from deciding that a law is unconstitutional is to amend the Constitution. That's a very tough thing to accomplish. There are other theories about how codification can override a SCOTUS decision. Congress could pass a law making abortion legal or making same-sex marriage legal. Whether that could survive a SCOTUS decision that such a law is unconstitutional or not is open to question.

[FBaggins]

13. Yes - but that would be a very different decision than the current debate

Ignoring the fact that only one justice seems open to even considering the question, the conservatives on the court currently claim (if you extend the Dobbs rationale) that the constitution is silent on the question of gay marriage and thus individual states or Congress can make their own decisions democratically.

If Congress were to pass a law recognizing such a right, overturning it would require them to either claim that the constitution is not silent on the question and actually forbids it... or perhaps that it does not grant the federal government the power to create such a law.

Either would be a much harder thing to do than what they did in Dobbs.

[The Magistrate]

15. Good Points, Sir

It would be nice if a majority on the court actually had respect for the Constitution, and such regard guided their decisions.

They don't. They fancy themselves a supreme legislature, tasked with returning the country to the old Gilded Age, and mean to pursue that goal till stopped.

[In It to Win It]

17. I think

rather than the Constitution forbidding it, I think they would more likely say the Constitution doesn't give Congress the authority.

[FBaggins]

24. I think you're right, but it would still be a bigger challenge than just Dobbs

Doobs rested in part on rethinking substantive due process decisions - which is why (regardless of what Alito said in the ruling) some of these other decisions are back on the discussion table.

But ruling that the constitution doesn't give congress the power to recognize gay marriage? Unless congress was really sloppy in how they wrote that bill, it would require undermining much of what congress has done to expand its powers through the commerce clause.

I'm not saying that there aren't some who would love to see that clawed back... but a huge portion of existing federal law would be called into question if they did that. Not just a few hot-button social issues.

[In It to Win It]

26. I've been thinking that's their goal

I really think their goal is to undermine much of what Congress has done through their commerce power.

On Dobbs, during the moment of reading his attempt at pacifying the masses on the other issues, Alito's face briefly replaced Ted Cruz's as the punchable face in Washington.

On some level, I am glad Clarence Thomas said the quiet part out loud. We knew that was their goal but now, they have to own it. They cannot deny it.

[duckworth969]

14. SC reform

If there is any one big idea to reform the SC, it’s that.

The idea that nine people have so much power to dictate our society is absurd.

If something is codified, it should take a helluva lot more than nine people to undo it.

[emulatorloo]

22. Well we need to elect more Democrats in 2022 if we want to reform the SC.

[Patterson]

27. Five people.

[al_liberal]

16. Didn't seem to matter with voting rights.

Hell, Roberts said times have changed and it was no longer necessary. Since when does that allow the court to overturn a law?

[emulatorloo]

21. Of course. They overturn laws all the time. But it is still worth passing the law.

[discntnt_irny_srcsm]

25. SCOTUS is the last appeal if one challenges the validity a law.

For a law to be valid in the US it must pass muster in comporting with the Constitution. There are other countries that operate under "Parliamentary sovereignty": https://en.wikipedia.org/wiki/Parliamentary_sovereignty

IMO parliamentary sovereignty is more Democratic than our system. Democracy in its pure form has also been criticized in the analogy of 'pure Democracy is 2 wolves and a sheep voting on what to eat' or something like that.