06/30/2004 Entry: ""
Posted by Maynard @ 10:02 AM MST
The Supreme Court and Vetoes
Lots of talk has been bantered about since yesterday's decision from the Supreme Court that invalidated the Child Online Protection Act. It is sad indeed that Congress can pass a law, only to see it overturned by the court, then re-pass it to meet their Constitutional requirements only to have it cast down again. This amounts to nothing short of a Judicial veto, identical in effect to a Presidential veto. So what if we restricted the ability of the Supreme Court to strike down law, vis a vis a Judicial veto override?
There is HR 3920 (108th Congress, 2nd session), which exercises Congress' 3rd article, 2nd section, 2nd clause power to restrict the Court by legislation (use Thomas to find it). It uses a two-thirds majority to override the Justices if they are out of line. I have a problem with this - not in concept, but in implementation. The court's are too willing to override acts of Congress, and there is nothing that prevents them from siding with a plantiff that sues Congress because their case result was reversed. So what to do?
A Constitutional amendment is problematic. It takes two-thirds of the Congress to get one started, and since the Senate is hamstrung in filibuster on appointing conservative judges, it is reasonable to say that we won't get a two-thirds majority on a bill that restricts liberal activism in the courts. Alternately, we could call a Constitutional Convention, something that has never been tried and is certain to bring out discussion on amendments ranging from deep-sea fishing rights to abortion. Those issues need to be discussed, but a Constitutional Convention needs to be focused. We don't have the discipline as a society to stay focused, and I'm afraid that a convention would get bogged down in minutiae and ignore the issue that brought the convention together.
I say call your Congressional officials and get them to support HR 3920, or whatever is the equivalent in the Senate. If the bill can be passed, at least it can be in effect for a while before being struck down. But that's the pessimistic view. Perhaps the judges will respect Article 3 Section 2 Clause 2 and allow the bill to stand. If not ...
... well, lets get to that point before we start calling for activism against the judges. We've had plenty of activism from the judges, and its time for change.
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