A rare bad call, sir. The purpose of the Supreme Court is to keep things from changing despite people flipping out over the latest crisis, and they do a pretty good job at it. Not perfect - but much better than, say, the 70% (or whatever) of the population that believes in Angels and Creationism would.

Do you really want your constitutional rights to be flipped on and off like a set of condo association bylaws, depending on who gets 51%? Or do you really want them to disappear entirely when you cross the state border into Georgia?

The main functional beauty of our system is provided by the institutional gridlock that keeps us from destroying ourselves. Putting constitutional rights into the sole hands of the people is just as bad as putting them into the sole hands of the Executive.

Of course, this would mean that where a supermajority could not be obtained, lower court rulings would govern. This would greatly decrease uniformity: the interpretation of the constitution would differ by what circuit you live in - not a good idea for a country.

Also, what if the lower court rulings were close or bad or both? Hamdan v. Rumsfeld, a circuit court ruling, upheld by 2-1 (one of the two being then-Judge Roberts) an assault by the Bush administration on the Bill of Rights. The Supreme Court reversed 5-3 (now-Chief Justice Roberts not participating). I wouldn't want to give that up.

I would, however, support a more moderate version of your proposal: a suggestion by my teacher, the late William J. Curran, that in order for the Supreme Court to hold a statute unconstitutional, at least 6 votes should be needed. This would give more weight to the will of the people as expressed through their legislative representatives.

Guest: We could just go back to the days of Plato and "benevolent dictators"...

With the people making the choice, at least we're all equally responsible for the fuck-ups.

I've got a better idea: how about we simply eliminate the Supreme Court?

I for one would much rather have my laws decided by a majority of ignorant citizens than a majority of unelected former law professors.

A McCain presidency would almost certainly mean overturning Roe v. Wade, something unachievable nationwide without a SCOTUS decision.

Roe v Wade in fact is a perfect example of something that does not belong in a court of justice. These are ethical issues that must be resolved democratically with the guidance of public health experts. Judges are the least qualified individuals to pass judgment on the matter. And whichever way you look at it the Constitution has nothing intelligent to say about it. The only reason abortion is still unresolved in this country is because it's in the hands of judges.

The fact that the SCOTUS has on occasion saved our ass does not impress me. Kings have been known to do that, too. As Nur said, the people can accept mistakes when they can blame themselves for it. But why should I have respect for a bunch of aging litigators of limited intellect?

I think their role should be limited to interpreting arcane constitutional points, not to make the big decisions that democratically elected, and answerable (well, in theory), leaders are expected to make.

Non-uniformity among states is fine. That's one of America's strengths, in fact, that it has the luxury of experimenting at the local level.

WE THE PEOPLE---Do YOU mean folks like U&I or the Pelosi-Reid Congress? I'm sure the Pelosi-Reid Congress would agree with removal of the SCOTUS most vigorously as would the Bush Cheney Administration.

So would you okay if the right to choice was decided and implemented on a state level?

If YOU don't want a Mccain Presidency then VOTE DIGBY FOR PRESIDENT---VOTE THE INTERNET, digby, a woman, would most likely rebalance SCOTUS and STOP all talk of Roe v. Wade for a long time.

It should be decided in Congress. State level would be second best. SCOTUS is the worst. I know no one who is happy with that. Pro-choice types are happy because they happen to agree with SCOTUS decision, not because they agree with the fact that it's the right place to decide the issue.

How do I know? Simple. Name any pro-choice person who would be happy with a ban on abortion as long as
it's decided in the Supreme Court.

PS: today the decision is, for all practical purposes, at state level. Even though abortion cannot be banned, states can make it virtually impossible for poor people to have an abortion.

Mike: U&I or Nan? You raise a very good question, which I think deserves a separate post. Not a copout. Just an acknowledgnent that you're raising a huge, and hugely relevant, issue.

Whether or not Roe v. Wade belongs in the courts is irrelevant. It's in the courts because the legislature dropped the ball. Someone had to deal with it: Congress refused.

Another example of this phenomenon was the Civil Rights decisions of the mid-20th Century. Congress should have been able to deal with that but the institution's structure and corruption of its members made it impossible. Off to the SC went the issue, and they did a damn sight better than Congress could (and enabled Congress to move forward on the issues as well).

Your suggestion for a supermajority is probably a poor one. Keep in mind that the result of a case would mostly then turn on who brings the issue to court first. Just because the P has the burden of proof does not mean that he should be forced to work completely uphill. Merely HAVING the burden is a _huge_ deal; requiring a supermajority is simply sick and a little fucked-up from a lawyer's standpoint.

The base solution to fixing the court has been proposed many a time: cycle the members from the Circuits and impose strict term limits. No more than 2 years. Thus, the SC is nothing more than a glorified appendage of the Circuits. The knowledge that they'll have to live with their decisions after their SC stint would vastly improve decisions. And besides, many Circuit Court Judges are smarter than those on the SC.

From a Constitutional point of view, I'm not sure that Congress has jurisdiction over the issue of abortion. (Of course, Congress oftens finds a way to make laws regarding issues that the Consitution doesn't technically give them the right to, i.e. through use of the Commerce Clause.)

In terms of whether it's best that the abortion issue is decided by the federal government or state governments, assuming you're pro-choice, perhaps it is best if the individual states make this decision. If Congress passes law banning abortion, that's it; a pregnant woman would have to go to another country if she wanted to abort her child. On the other hand, if it is decided differently in each state, then it is simply a matter of traveling over state lines to acheive this.

As NO One says SOMEONE made a complaint. THAT COMPLAINT goes uphill through many courts to EVER see SCOTUS. YOUR "legislating-from-the-bench" is simple RHETORIC=propaganda to fight LEGISLATING FROM THE JURY BOX. Life really should be decided on a case by case basis among many(JURY) local people involved.

I hope I'm wrong but its probably Ole Cheap Bush Propaganda to boot. Nothing of the quality of Stalin, I say, after all WHO could ever beat "loot the looters"?

THE LAW is complex AND there is plenty of it. How else will the common man, Average Joe Citizen, express his concern and DIFFICULTIES under the law if not through the courts? WE don't elect kings in the country, but WE'll elect MORONS by the droves. And since its AMERICA, just one heaping plate-o-stupid ain't never enough, ma--- WE re-elect them for as long as WE can keep them alive. So one may EXPERIENCE some sort of grievence against one of OUR MANY and various laws, rules and/or ordinances and desire to ask why. Pelosi won't be speaker forever so calling her just won't do, so WE NEED THAT COURT SYSTEM. I mean of course, A JURY COURT NOT A PLEA AGREEMENT COURT. One MUST allways assume the JUDGE IS NO FRIEND TO THE JURY and vice versa.

But say U live in a backwoods Missouri town that's a lynch mob waiting for a reason, U look at that JURY OF YOUR PEERS and think "THANK GOD for the appeals proccess". Several layers of courts (goodluck) to finally SCOTUS.

If there we NO grievences, no complaint, there would be NO NEED for any of it.

Its NOT just 9 people hearing YOUR case, many, many people hear YOUR case. Its just YOU are disatisfied with what ALL THOSE people say. SCOTUS is there to make that UNPOPULAR DECISION. That's why a child rapist doesn't get the death penalty.

Dunno of this has been mentioned, but 6-3 is a two/thirds majority, and should suffice...

and i think that such a majority should be required to overturn established precedent. 5-4 is ALWAYS a political vote.

"We the people" worked and works, on occasion, in small, homogeneous entities--the Greek city state, Finland or Norway. Most of the time and in most places people pretend.
Fascism works better. What could have been more of an expression of "we the people" than millions of Germans of the Reich marching in torchlight parades, singing, yelling, feeling at one, whole and fulfilled. It's a Hobbesian world. Gotta hang on to a few slivers and fragments of decency and compassion here and there, now and then. A lover, a friend, a poem. The rest is mostly bullshit, high or low.

>> requiring a supermajority is simply sick and a little fucked-up from a lawyer's standpoint.

The best argument I've heard why my suggestion of a supermajority is positively brilliant!

I'll admit it, I'm a sorta elitist. I do NOT trust the People with plebiscites. You need only look at the 'initiative' process in Cal.
The issues upon which you enumerate for the "people" to decide are too inflammatory, too ripe for demagoguery, especially in such a (corpoRat) media-dominated, (corpoRat) media-suffused, (corpoRat) media-owned culture as ours...

You sound exactly like Christian fundamentalists 10 years ago, when the court wasn't favorable to them. The Constitution exists to protect minorities from the tyranny of the majority.

For this reason, I actually like the super-majority idea. But I would suggest the following change: all laws passed by the Congress and signed by the Executive shall be vetted by the Supreme Court and require a super-majority of 7 votes before the legistlation is enacted into law. If the "will of the people" is such that they don't like this, let them get the 2/3 majority together to amend the Constitution. The same argument about a 5-4 vote applies to a 50.1% Rovian ruling "popular" majority.

All laws are fundamentally restrictions on liberty. They should be vetted for Constitutionality before they are allowed to become law, rather than first fucking up peoples' lives and later requiring lawsuits to rectify.

You sound exactly like Christian fundamentalists 10 years ago, when the court wasn't favorable to them. The Constitution exists to protect minorities from the tyranny of the majority.

For this reason, I actually like the super-majority idea. But I would suggest the following change: all laws passed by the Congress and signed by the Executive shall be vetted by the Supreme Court and require a super-majority of 7 votes before the legistlation is enacted into law. If the "will of the people" is such that they don't like this, let them get the 2/3 majority together to amend the Constitution. The same argument about a 5-4 vote applies to a 50.1% Rovian ruling "popular" majority.

All laws are fundamentally restrictions on liberty. They should be vetted for Constitutionality before they are allowed to become law, rather than first fucking up peoples' lives and later requiring lawsuits to rectify.

This is digressing a bit but would it be constitutional for the state legislature or congress to BAN sponsorship of fourth of July FIREWORKS on a TV channel by HUMMER? Shocking but yes, in my beautiful city, the fireworks that I watched on a local TV station were sponsored by HUMMER and throughout the programme, its logo was on the screen with of couse, advertisements for different models of HUMMER during breaks. Is there any punishment for such gross irresponsible behaviour? I thought we had almost reached an emergency situation in terms of gas and other energy supplies. I am aware of the First Amendment but then one can not shout "Fire" if there is none.

A 5-4 decision protects minorities as much as drawing the long straw protects you from being eaten if you're shipwrecked.

Laws are not necessarily restrictions on liberty - you're assuming that people are always more progressive than law, which is not true. I.e., laws against murder and rape are in theory restrictions on my freedom to murder and rape, but by reducing the amount of murder and rape, they increase my freedom to walk around without fear. Similarly laws against, say, disenfranchising black people from the vote.