My opinion is that the abortion debate has moved on from any attempt to get it declared illegal again. Roe v. Wade has been around for so long and has become so settled that I think it never be overturned and abortion will always be legal in some form. The debate will be about where the line is drawn between legal and illegal abortions.
Stare decisis is a binding legal principle that judges must follow, but because the Supreme Court is the highest court, there are really no precedents that it is bound by law to follow, especially with regard to constitutional principles. Prior decisions have persuasive authority only, not binding authority, so the Court can always overrule its own prior precedent if it believes the earlier decision to have been in error.
Contrary to your assertions, however, the Court does not always follow party lines in its decisions. The justices are far less predictable than that, and Souter is not the only justice to have turned out to be a surprise in that regard.]]>
Clark, it’s an old saying among attorneys that you can never win a case on oral argument, you can only lose it. So oral argument does matter, but only in that the justices can decide against you based on your presentation.
By the time oral argument arrives, there has been voluminous briefing on the case by both sides and the justices have done a lot of research and briefing of their own with their clerks. So yes, oral argument is late in the game, but it’s only about a 10th of what the attorneys do to prepare the case.]]>
Getting back to DOMA, as I said it’s more a question of when gay marriage becomes normalized and not if. The demographics alone will decide the issue unless some really significant social changes happen. In the short term if one wants DOMA to remain then it’s probably better than Obama’s Justice Department recuses themselves and allows someone to defend it who actually is passionate about it. So I don’t quite understand all the controversy about Obama on this matter. Beyond his inconsistency on the matter, as I mentioned.
As to the courts it’s kind of interesting. I sometimes wonder by the time it gets to the Supreme Court how much the actual presentation by the attorneys really matter in cases like this. It’s not like it’s an obscure issue. I’m sure the Justices already have strong opinions on the matter and can have clerks do their own research. I’m pretty skeptical the DOJ, the attackers of DOMA or friends of the court are going to present some compelling argument that the Justices have never heard of. I’ll even go out on a limb and in my cynicism suggest it’ll be decided along party lines.]]>
LOL! Double entendre intended?]]>
Mark D, we’re talking past each other. As an attorney, I’m well aware of the Constitutional provisions concerning the Supreme Court and its jurisdictional limits. This thread is not about that, and your continued insistence on explaining obvious and irrelevant points about that subject is insipid. Further comments on that subject will be deleted.]]>
Not true, and it never has been. The constitutional authority of the judicial branch is to resolve actual cases and controversies. The judicial branch has an opinion on whether laws are constitutional or not, and resolves actual cases and controversies accordingly, “with such exceptions, and under such regulations as the Congress shall make”.
It is only political pressures – the prestige and reputation of the courts – that keep Congress from exercising its Article III Section 2 powers in more obvious ways.
Even when Congress defers to the courts completely, without exception, to resolve actual cases and controversies, legislators have unrestricted authority to decline to pass legislation on the grounds that they believe it violates the constitution, even if the judicial branch disagrees. The executive power to decline to enforce the decisions of the courts it believes are unquestionably wrong is even more pronounced.]]>
In constitutional terms, yes. The Supreme Court has certain jurisdiction which cannot be taken away by Congress, but the vast majority of its jurisdiction is at legislative sufferance. That is what “with such exceptions, and under such regulations as the Congress shall make” means.
Of course, in practical terms, the framers did not intend for Congress to take away all of the Supreme Court’s appellate authority, just to have the power to decide where and when that appellate authority exists, and to establish the jurisdiction (and the very existence of) all other federal courts.]]>