Mr. Choate, an important message from Justice Scalia....

[Bill Stewart]

Discussion by Jim Choate, Declan, and Aimee -

> > But wasn't Scalia -- who made a reasonable point -- talking about the
> > nomination of judges, not executive branch political appointees?
>
>Yes. Indeed, it is the province of the Courts to interpret the Constitution
>(according to some, not including Mr. Choate), not executive branch
>political appointees. The very fact that we ask the executive branch these
>questions is pause for thought. I was trying to uncover any pragmatic
>distinction between a "political view" versus an opinion on the mechanics of
>constitutional interpretation. I raised more questions than I answered.


Marbury vs. Madison was an entertaining power grab by the Supremes,
but while it may not have been explicitly planned by the bunch of
politicians who wrote the messy compromise that's the Constitution,
the Constitutional requirement that there be a hierarchy of courts
with one Supreme Court means that something like it should happen.

If you don't like the idea that the Supreme's job is interpreting
the constitutionality of laws made by the legislature,
their job at minimum involves deciding appeals in specific cases,
and it's possible under Constutionally implied-but-unspecified
conditions to appeal cases up the hierarchy.
Some of those cases will involve questions where a law made by Congress
or by a state (at least after the 14th amendment)
conflicts with the majority of Supreme Court judges' opinions
about what the Constitution (and amendments) directly states
or with what they believe are fundamental civil rights
which the 9th and 10th amendments confirm may exist even though they
are not specifically enumerated.

So even if, in a Choatian World, they couldn't say
"We're the Supreme Arbiters Of The Meaning Of The Constitution",
they can still say "We're the top of the judicial hierarchy,
and we say that X is a bad law, and will rule in any case that
is appealed to us that that the accused is not guilty
and award legal costs to the accused."
Under common law, throwing out cases of unjust laws is not only
the job of the jury, it's also the job of the judge
(though the judge also works for the King, and it may also
be his job to enforce unjust laws.)
Lower courts don't like getting overturned, so they'd generally
stay in line given a ruling like that, and if not,
the accused can spend the costs of the appeal and win.

And since most courts generally follow precedents,
once the Supremes have announced that X is a bad law,
they'll generally stick to it for quite a while,
or at least until the political climate changes and
they decide some case doesn't quite fit the conditions
that the precedent was set under, or weasel-word around it,
or decide to do a rare break with tradition and issue a
contradictory opinion.