Did the Supreme Court extra-legally amend the Constitution?

[V850i]

It is my understanding that the Supreme Court (SC) takes cases primarily (or maybe exclusively?) when there is a question of a particular law being "Constitutional." In many cases they will determine what Congress means by a particular law and based on their understanding of a law determine is it Constitutional. In this immunity case there is nothing in the Constitution about immunity, as far as I can tell this was never discussed, debated or written about in any discussions, letters etc... So what exactly was the SC doing here? It seems to me they did not say any of the laws do not meet constitutional muster. In fact what they have done is either inserted a clause into the constitution and amended it extra-legally. Democrats around the country should realize this and state clearly that the SC does not have a role in amending our Constitution and this ruling, which amounts to an extra-legal amendment does not stand and will not be abided by by any democratic administration.

[Celerity]

1. Jefferson & Lincoln w/ 2 warnings about checks/balances-upsetting power of judicial review by SCOTUS

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. ... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Thomas Jefferson - 1820

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Abraham Lincoln - First Inaugural Address - 1861

The country has been set upon a course wherein an out-of-control, corrupted, non-accountable (in actual real-world political reality), tenured-for-life SCOTUS is, with more than a remote chance, likely to be the match that lights the powder keg of the destruction of the rule of law, which may well lead to the dissolution of the Union of the States.

A declaration of universal foetal personhood (and thus the nationalised outlawing of almost all abortions) by the corrupted SCOTUS, to give but one example, would quite possibly do the trick. Multiple Blue States will very likely refuse to submit, and thus go into a posture of open defiance of the SCOTUS.

If the POTUS (far more likely if it is a Republican, but also it could be a Democratic one as well) decides to use the full force (up to and possibly including kinetic force) at their disposal to bring the defiant States to heel, their may well be kinetic violence and also open secessionist movements springing to life within those Blue States.

If the POTUS does nothing, or very little, and the Blue State defiance continues unabated, then some or many of the Red States may well start to ignore and defy previous rulings that THEY detest. The same options and their resultant outcomes may well likely occur, with similar chaos, violence, and secessionist movements entering into the broad theatre of possibilities.

We are entering into the most dangerous of waters, and the supply of national life preservers is becoming more and more depleted as the years flow by. In fact, the Republican Party is actively and wilfully destroying that supply with all deliberate speed.

[markodochartaigh]

8. Jefferson,

" Our judges are as honest as other men, and not more so."

Ahhh, the good old days.

[Celerity]

9. what he said is hardly a compliment to the judges

[markodochartaigh]

30. Exactly my point.

And now we have even less.

Edit: I'm sorry that my sarcasm didn't come across well in print.

[Celerity]

31. I find the sarcasm emoji helps at times (as I too make sarcastic comments that are not always clear)

thanks for the clarification

hugz,

Cel

[KS Toronado]

15. Thanks foe the 2 President's opinions.

[malaise]

16. THIS

Rec

[Mike Niendorff]

2. It really doesn't matter what people call it.

Unless and until the Court is expanded and these horrific decisions reversed, we are in a Constitutional crisis. It's here. Right now.


MDN

[Think. Again.]

11. I agree.

I was thinking earlier that this ruling is the very definition of a Constitutional crisis in more ways than one.

While it would be the honorable course of action to simply defy this ruling by not taking any illegal actions, that does not close the door on a future President who isn't honorable.

This ruling must be negated somehow.

[Seeking Serenity]

13. Absolutely. In January, after the overwhelming Blue Wave has been seated

And the best president in any of our lifetimes re-inaugurated, the Congress needs to enact a law expanding the Court to 25 seats with an express requirement that no fewer than 17 justices must be appointed by Democratic presidents and if any Democratic-appointed justice retires or dies in office, then that justice must be replaced by a Democratic president's appointment. If, in the unlikely event that we have a GOPper president, then any such vacancy replacement shall be recommended by the Democratic leaders of the House and Senate to the president who shall nominate such recommendation.

It's time to stop screwing around with that permanent minority party. President Obama said in 2008 that we needed to fundamentally change this country. It's past time we got started.

[MichMan]

29. The current SC would rule 9-0 to overturn

"Congress needs to enact a law expanding the Court to 25 seats with an express requirement that no fewer than 17 justices must be appointed by Democratic presidents and if any Democratic-appointed justice retires or dies in office, then that justice must be replaced by a Democratic president's appointment."

[Sympthsical]

3. The immunity question is derived from English Common Law

Which, yes, is used by American courts to fill in spaces and create a body of law where the Constitution and/or statute is either silent or ambiguous. The executive officer immunity question arose out of a somewhat entertaining case involving a Postmaster General in the 19th Century. And that case was built upon earlier cases about judicial conduct. And those cases were - yes, this is true - built on previous English cases involving the House of Lords.

Nowadays, we have so much precedent after 200 years that precedent is generally sufficient for most things. But, when the really odd thing crops up, common law gets dragged in.

And yes, I am paraphrasing the hell out of what is a fairly deep and complicated subject.

If you want to know how the Court got from A to B on executive immunity, Nixon v. Fitzgerald and Spalding v. Vilas will generally do for it.

[Think. Again.]

12. So the court took a law that would pertain to a king in a monarchy...

...and applied it to a President in a Democracy?

[Sympthsical]

14. No

That is not how use of English common law in American jurisprudence works.

And the relevant law in that case was actually about an officer of the Exchequer, IIRC. It had to do with how English cabinet functions.

But that is just the long chain of jurisprudence. In the case with Trump, the Roberts court only needed to expand on American precedent that had been established.

My post was only meant to illustrate/explain how things not explicitly in the Constitution end up being a part of American judicial decision making.

[harumph]

17. Nemo iudex in causa sua

[Sympthsical]

18. An important principle

And one highly relevant to certain justices in particular whose name rhymes with llamas.

[Think. Again.]

20. I see, so the court referred to laws...

..of another country that didn't even apply to the highest office of that country.

I wonder why they didn't just use common sense.

[Sympthsical]

23. It's how our system of law works

And has for about 230 years.

America was England, and so the body of English common law became a basis for our own system. So when judges didn't have any American statute or law to work from, they pulled from the law that had previously governed the country. Precedent is the core component in common law. If you don't have precedent, you have to reach back and think, "Well, what was done before? Is there any previous situation I can work from?"

You don't want judges just deciding "This is how it works now because I said so" out of absolute thin air. They need a basis. That creates stability and continuity.

This happens a lot less today, because American law has mostly hashed out things over time so there is American precedent to work from. This Trump decision, as full of holes as it is, does have American law to work from. That's why when someone like Alito is pulling from the 17th century out of the blue, people are like "WTF?!" We've done a pretty sufficient job of filling in gaps over the past two centuries so that such a thing is unnecessary (and I'd argue unwarranted).

But when people want to know how some implied power or circumstance not expressly in the Constitution ends up in American law, the answer is usually it was pulled from common law somewhere. It's a thing in our system.

[Think. Again.]

24. hmmm...

....sounds like a poor attempt at justifying the highjacking of the law to me.

[Sympthsical]

25. It's the exact opposite of that

Common law and its dependence on and deference to precedent is foundational to our judicial system.

The entire reason the Roberts court has been so concerning is how, now empowered by Trump appointees, the Court has been dispensing with precedent in various things.

Common law isn't the villain. People who ignore its principles are.

[Think. Again.]

26. When facing a question that has no precedent...

...it's probably best not to pretend the decision is based on precedent.

[Sympthsical]

27. And they typically don't

That's why, if you're a very bored person who reads a lot of legal opinions out of curiosity like me, you'll notice sometimes they don't have a firm precedent to work from. What do they do? They fish around common law for something close to a precedent. On Constitutional issues, they may start digging into things like the Federalist Papers or well-respected writings by the founders and others to divine intent.

Like I said, a judge who just makes up law on the spot is injecting instability in the system.

The immunity decision does have precedent to work from. I noted two of the cases in my previous post. And there are others. However, could you argue Roberts is applying that precedent wrongly?

Absolutely. And a lot of people are. It's a completely valid opinion to have. Particularly with this court.

[Think. Again.]

28. This ruling can not stand.

[Ms. Toad]

22. Much of our law has it's roots in the English common law . n/t

[V850i]

19. This case seems different from anything I've seen before because

In this case they had no laws passed by congress, the constitution itself did not speak to this in any form or fashion to be able to come decision about what the framers wanted or thought. I understand they reach back to understand old English laws etc… to understand the basis of laws, clauses in the constitution or arguments made about how they worded things in the constitution. You can’t make the argument that they can go back to some old laws about immunity that have no bearing on our constitution nor any laws congress passed to make a ruling that essentially adds an immunity clause into the constitution. If there is a need to change the constitution there is a process for that and ithe SC is not part of that. Otherwise they can radically change the constitution by making rulings having no basis in our constitution or laws.

[Sympthsical]

21. It's just how American law works

And it's worked that way for about 230 years now. It wasn't even controversial even way back for courts to fill in the blanks like that.

This decision with Trump isn't based on English common law. This decision was cobbled together out of precedent from previous American court cases stretching back to the 19th Century. Roberts took existing American precedent and expanded upon it to get where he wanted to go.

But if you're trying to figure out the genesis, what got the ball rolling on executive immunity, you have to dig that far back.

No, it's not expressly in the Constitution. But neither was judicial review. However, we've collectively decided that it's implied in there. Same with how English Common Law gets pulled into things. Common law very much relies on precedent, and early American law didn't always have precedents for making decisions. So judges would reach back and look at the total body of law that had governed America since it's settling.

We didn't just start fresh once our government was set up. Judges had English law as a foundation, and they referenced it constantly. No, English law wasn't binding, but it was an acceptable and recognized rationale for judicial decision making where the Constitution or legislative statute were silent.

[UTUSN]

4. Knr

[Qutzupalotl]

5. Certainly the part about not being able to question a president's motives

for acts in his official capacity is nowhere in the Constitution, but was a figment of Donald Trump's imagination. It sounded like a good idea to John Roberts that a president should work without constraints, so he invented a new passage — he inserted margin notes into the Constitution and substitutes his notion of a unitary executive in place of the framers' vision of checks and balances.

Joe can refuse to use his new superpowers, but can't openly defy the court AFAIK. He is sworn to faithfully execute the law, even in outrageous situations like this. I realize this is inherently contradictory, since he supposedly can't be prosecuted for violations in this sphere. But Joe understands his duty and won't push his actions beyond what he thinks is proper. I

t's up to us to keep electing presidents with character who will refuse these powers, until we can somehow codify that a president is subject to law.

[unblock]

6. No, not in this case.

While the decision is certainly horrendous, a huge invitation for corruption, and creates problem vastly worse than the one they claim to solve, it's pretty plainly within the existing scope of their current constitutional powers.

Any charge against a president must run through the court system, and the Supreme Court ultimately sets the rules and standards for trials and appeals. If they want to say they will overturn any conviction of a president, they currently have that power as they already can overturn any conviction.

In this case, they left themselves some wiggle room as it depends on what constitutes an "official act", but they make such rules, just as they establish rules and standards such as "beyond a reasonable doubt" or "the preponderance of evidence".

Again, it's a horrible decision, and a clear departure from the "principles" they claim to use to decide other cases (originalism, e.g.) as the framers wanted above all to avoid a tyrannical president, and a grant of immunity is a massive push in the direction of tyranny, especially in the case of someone like Donnie.

Personally, I think a president shouldn't go to prison even for violating a law, but in highly limited circumstances -- I'd say specifically where laws conflict, such as ordering military action pursuant to an authorization of force even though this would conflict with murder laws. That said, I don't think the concept of immunity is needed. Why not just have a trial and let a jury decide if the president did something criminal.

After all, a president could designate a political opponent a terrorists and have them shot on sight. We want a president to be able to do this with an actual terrorists like bin Laden, but not with a mere political opponent. How could that distinction possibly be made without a trial?

[SunSeeker]

7. Yes, just like Scalia totally changed what the 2nd Amendment is in DC v. Heller. nt

[The Wandering Harper]

10. that's my thought about what they did /nt

[struggle4progress]

32. They're trying to disembowel it