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Legislative override of SCOTUS

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Voting Style: Open Point System: Select Winner
Started: 5/13/2016 Category: Politics
Updated: 2 years ago Status: Post Voting Period
Viewed: 570 times Debate No: 91221
Debate Rounds (5)
Comments (3)
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Our Supreme Court has become arrogant and lawless. It mangles the Constitution; it upsets the federal balance of power; it tramples the will of the states and the voice of the people.

Its unelected, unaccountable justices use their power to take over school systems and prisons; to seize private property without compensation; to confer due process rights on foreign enemy combatants; and to protect pornography and flag-burning while limiting political speech, to name just a few of its offenses.

James Dobson, founder of the think tank Family Research Council in the 2005 book Judicial Tyranny: The New Kings of America, said: "What we have today, is an oligarchy --- rule by a small cadre of elites. The courts strike down laws and policies they don"t like, whether their opinions reflect the Constitution or not. the activist judges have turned the Constitution into what they call "a living, breathing document," in which its actual words no longer mean what they say. The Constitution "evolves" they tell us, to fit the biases of the Court. Consequently, we no longer have a government "of the people, by the people, and for the people.' It is, instead, an oligarchy."

This is not what the Framers of the Constitution intended.

Let"s take a closer look at some specific ways that the Supreme Court is tearing at the fabric of our republic.


Former U.S. Attorney General Edwin Meese, in the 2015 book "Men in Black," writes: "The Supreme Court treads recklessly on virtually every avenue of life and governance. Even in areas such as the political process and electing a president, over which the Framers gave exclusive authority to Congress and the states, justices have interjected themselves and twisted constitutional precepts " such as free speech and equal protection " into dangerous weapons. Perhaps nothing troubles me more than justices who invoke international law and the decisions of international tribunals in interpreting the Constitution. foreign laws and foreign courts are not legitimate guideposts for interpreting the Constitution. When justices rely on [foreign laws and foreign courts], they are violating their oaths to uphold our own Constitution.

Let me give you just three brief examples of the Court"s disregard for the Constitution.

First, the 1942 case of Wickard v. Fillburn. The Supreme Court distorted the Constitution"s Commerce Clause, ruling that the federal government can regulate, as interstate commerce, the amount of wheat grown by a farmer for use on his own farm --- wheat that was never sold to anyone and never sent across state lines.

Attorney Jack Pack, in the American Spectator, March 14, 2012: "Wickard v. Filburn ranks up there with the most pernicious decisions the Supreme Court has ever made. Its expansive view of the Federal Government's Commerce Clause powers has paved the way to greater and greater intrusions by federal actors into our daily lives. Now, a majority of the Supreme Court may conclude that it justifies Obamacare's nationalization of one-sixth of our economy. Enough of this nonsense! "

My second example is Cooper v. Aaron. With that 1958 ruling, the Court asserted a doctrine of judicial supremacy that it has used for decades to irrevocably impose its will on the American people.

Judge, Constitution Party founder and Conservative Caucus chair, Howard Phillips, in "Judicial Tyranny," 2005: "In Cooper v. Aaron, Chief Justice Earl Warren boldly and erroneously claimed for the first time that the Supreme Court"s interpretation of the U.S. Constitution is the "supreme law of the land" " Since [his] pronouncement, a couple of generations of law students have been taught this heresy, and it is hard to find a judge or even a lawyer who doesn"t believe it. The Founding fathers did not write a Constitution that set up a judicial oligarchy " Nothing in the U.S. Constitution justifies judicial supremacy."

Finally, in Roper v. Simmons in 2005, the Supreme Court struck down laws in 18 states permitting the execution of minors. While I agree with the the policy decision of not executing minors, the Supreme Court"s methods were appalling.

The Heritage Foundation"s Rule of Law Initiative, March 1, 2013: "In the infamous case of Roper v. Simmons, the Court uses a panoply of activist 'tools.' The judges engage in judicial imperialism, citing their own 'independent judgment' as authoritative. They also imported foreign law into Eighth Amendment jurisprudence, clearly unable to justify their conclusion with any existing U.S. law ... [Justice] Kennedy further reveals his misunderstanding of the judiciary"s role when he looks to international opinion to assess whether the 'evolving standards of decency' forbid the execution of minors, . He demonstrates this "international consensus" in part by citing a treaty to which the United States is expressly not a signatory. While thinly conceding that international law isn"t controlling on this matter, the Court looks to foreign law to find confirmation of its own preferred conclusions. Rather than exploring the original meaning of the Eighth Amendment, the five justices of the majority instead frolic and detour through evidence of foreign standards, which they use to confirm their own policy preferences."


The Supreme Court has seized supremacy over Congress, over the States and over "we the people." With the vote of 5 justices, the Court can strike down the laws enacted by 345 Members of Congress, the statutes issued from 50 state capitols, and the will of millions of American citizens.

Constitutional attorney Phyllis Schlafly, in the 2005 book "Judicial Tyranny," wrote: "Activist judges impose policies on the American people that our elected representatives would not vote for. Activist judges create laws and rights that Congress and the state legislatures would never pass. An activist judiciary is the way to bypass self-government."

In a stunning example of usurping state authority and overriding the will of the American people, the Supreme Court"s Obergefell v. Hodges decision last June established a Constitutional right to same-sex marriage, striking down the marriage amendments in 37 states.

Supreme Court Justice Clarence Thomas, in his dissent, wrote: "This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The Court seized for itself a question the Constitution leaves to the people The Court had no reason " no basis in the Constitution " to short-circuit the democratic process."

Constitutional appellate litigator Michael Farris, February 17, 2016: "The Supreme Court was not designed as a political institution. The Court was never designed to make law. It was intended to have judicial power which meant that it was to apply existing law to factual disputes to reach a just outcome between the parties. A branch of government that makes law is a political branch. We have all heard and read the words: "The Supreme Court legalized same sex marriage." This is literally true. The Court enacted a de facto amendment to the Constitution. The same thing is true about a host of other contentious issues. The Supreme Court routinely makes law in the guise of constitutional interpretation."


Congress will propose, and the states will adopt an amendment to the Constitution to provide for a legislative override of a Supreme Court decision by either a three-fifths vote of both houses of Congress, or by a three-fifths vote of the State Legislatures.
The override must be exercised within two years of the Supreme Court"s decision. It is not subject to a presidential veto or to litigation or review in any federal or state court.


My plan gives Congress and the State Legislatures the ability to override a Supreme Court decision with supermajority votes.

Attorney Mark Levin, in his 2013 book, "The Liberty Amendments," argues: "By adding the override, for the first time justices will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them, with the possible ignominy of having a ruling overridden by a supermajority of the legislative branches. "


Our plan returns the court to its proper role. It restores legislative power to elected representatives in Congress and the state legislatures.

Michael Farris, in the Daily Caller, February 17, 2016: "We need to take the Supreme Court down a notch. The only way is by a constitutional amendment that places restraints on the ability of the Court to overturn the political decisions of elected officials. The solution is to return our decision making to the people and their elected legislators and to dethrone the imperial judiciary."

Judge, our legislators are ready and waiting for this tool.

Congress unanimously agreed that with Employment Division v. Smith, the Supreme Court crippled the First Amendment. Congress needed this override. With United States v. Windsor, the Court overturned the Defense of Marriage Act, passed with veto-proof margins by both the House and Senate. Congress needed this override.

The Supreme Court invalidated term limit provisions of 23 states with Term Limits v. Thornton. Those states needed this override. The Court struck down 31 state bans on partial birth abortion with Stenberg v. Carhart. Those states needed this override. The Court obliterated 37 state marriage amendments with Obergefell v. Hodges. Those states needed this override.

It is past time to rescue our government of the people, by the people and for the people by civil and legitimate means.


I accept.

Let's start with the intro. I have a problem with calling the Supreme Court arrogant. They are qualified justices who hold power yes, but proving that the justices are arrogantly using that power is more difficult than you make it seem. Arrogance in order to be unique, must be a defining trait of a person. Not all the SCOTUS Justices are considered in that light.

Your quote from Dobson is intriguing. In it, he assumes that SCOTUS does not have opinions that reflect the Constitution. I have two points under this. First the Consitution is a vague document that is interpretable in certain parts, in different ways. So somebody is always going to be mad with an interpretation. But second, they have to write down their thoughts on the constitutionality of every case that comes under their consideration. It is not like they ignore the Constitution. That is the words of someone who's Constitutional interpretation is being trampled on. Also, the Constitution does evolve for your information. According to "You may have heard the U.S. Constitution called "a living document." Though it may seem like a dry piece of paper to you, it really is designed to live and grow as the nation grows. Even the Founding Fathers knew it might have to change with the times." If Scholastic believes it to be a living document, then nearly all educators recognize it as such and you are outnumbered.

"This is not what the Framers of the Constitution intended." How do you know what they thought?

Let's talk Harms.

HARM 1 Response: I will break your quote down. The SCOTUS is not reckless. If anything they are very cautious, because they have taken years to make rulings happen before, and do so to this day. Now, when it comes to international law and the Constitution, you do realize that the Constitution itself is a patchwork document of foreign governance ideas? You do realize that the Constitution comes from John Locke, a British person? Obviously Edwin Meese is contradicting himself in this quote, or failing to remember key facts.

All three of your cases are examples that do seem to support some level of overreach. However, I want you to provide the percentage of how many SCOTUS cases throughout its history have actually overstepped supposed Constitutional boundaries, and how many have not. Three examples are just not enough substantiation for you plan.

Harm 2 Response: So SCOTUS justices do not have more weight in their opinion then Congressmen? Congress members are known for their polarisation, and complete unwillingness to cooperate. As well as their corruption. SCOTUS judges have the edge over them with several years of experience and expertise in law. So clearly, that edge in the matter of legal recourse is better.

Also Phyllis Schlafly's quote proves the need for a national referendum system. Not a SCOTUS overhaul.

So uh, Thomas's opinion is proof that a) Constitutional interpretations vary, and b) SCOTUS judges do consider the Constitution within rulings.

Michael Farris's quote is true, but then again, governments change and respecting the wishes of our founders is not on the top of this country's priority list. If it was, then slavery would still be a thing. As well as legal libelious newspapers, censorship, and many other things.

PLAN: How often could these be reached? Knowing this case, I know you are going to respond it is just an option. But if you have no proof of an option possibly being used, then you have no reason to implement said option.

ADVANTAGE 1: There is no real proof of this. Mark Levin is a super conservative source, so extremely biased. His argument for his own plan is not to be trusted in the real policy world. As for Congress, did I mention it is politically polarised earlier? How could it band together to be able to achieve an override? This has not been proved.

ADVANTAGE 2: Why do we need to take the SCOTUS down a notch? Do you have a chip on your personal sleeve against the court? Did the court do something wrong to Farris? Besides assaulting his so called "valid" interpretation to the Constitution? What other reason do we have to consider this an advantage?

So you have several examples of states needing an override. My question I pose to you to answer in Round 2 is this. Was it possible to keep the power of the state higher than the federal government, and at the same time survive the Industrial Revolution, the World Wars, The Cold War, and the Civil War? Was it possible to give more power to the states, or were concession made in those moments that lowered state power?

With that, I await a response. Sorry for little sources, but it is late at night, and I needed to get a response out to not forfeit.
Debate Round No. 1


BenD forfeited this round.


Based on the forfeit, I debated whether I would just wait for your arguments or add extra ones. But you have bragged to me about how well you can defend this case all year. So I am going to add some of my own arguments on so you have more to respond too. Also I feel like if you forfeit you have to deal with something like that happening. So without further ado.

1. Congress and the President have the ability to check the Supreme Court.

According to US, "The president and Congress have some control of the judiciary with their power to appoint and confirm appointments of judges and justices. Congress also may impeach judges (only seven have actually been removed from office), alter the organization of the federal court system, and amend the Constitution. Congress can also get around a court ruling by passing a slightly different law than one previously declared unconstitutional. Courts also have limited power to implement the decisions that they make. For example, if the president or another member of the executive branch chooses to ignore a ruling, there is very little that the federal courts can do about it. For example, the Supreme Court ruled against the removal of the Cherokee from their native lands in 1831. President Andrew Jackson disagreed. He proceeded with the removal of the Cherokee, and the Supreme Court was powerless to enforce its decision."

A long quote, that in summary is saying the checks are a) nomination, b) passing a new law that does effectively the same thing as the law that SCOTUS struck down, c) Ignoring SCOTUS rulings leads to no enforcement. All of these actually have happened, have been used, and therefore cannot be ruled out as options for checking the Supreme Court.

Checks do exist, so why do we need a new one? It cannot be just because you say so.

2. A majority of the states/Congress is a rare thing to achieve.

Many states differ in their diversity, laws, and social issues. So it should not be a surprise that Texas thinks different than Vermont. In many respects, this presents a difficult problem for your proposed plan. Your plan is to "provide for a legislative override of a Supreme Court decision by either a three-fifths vote of both houses of Congress, or by a three-fifths vote of the State Legislatures."

Now to achieve a 3/5th majority of the states, that means almost 60% of the states need to agree that a SCOTUS decision is unconstitutional. That is 30 states out of the 50 in the US. So in a large respect, a three-fifths requirement is very stalling to the progress you wish to achieve. Congress is not better however. Congress is so politically polarised these days that budgets are becoming difficult to pass.

"When asked about the most important problem facing the United States today, Americans rank dissatisfaction with government over ISIS and race relations. American trust in Congress is at an all-time low; citizens hold it in lower esteem than even big business or the criminal justice system. Despite the existence of problems at myriad levels of government, cynicism toward government has risen as the two parties have proven unable to confront the nation’s core policy challenges. In comparative surveys of polarization, Americans report far greater distance between the Republican and Democratic parties than citizens in other countries, such as France and Greece, report between their leftmost and rightmost parties."

We just do not agree as a nation. Congress is no exception to that.

Now I know that you will respond that your plan should never have to be used because that would mean that SCOTUS is not abusing its power. I want to stall this response right now, by pointing out that implementing an extra power option that is not necessary is the definition of overreach of government, the very thing you are trying to avoid. So don't be hypocritical in your response.

3. Balance of Power is ruined with this plan.

This is essentially a response to the theoretical of your second Advantage. You are arguing that "Our plan returns the court to its proper role. It restores legislative power". Now there might not be an issue with the idea. But you are not actually restoring the balance of power. This is because the balance of power has not been lost.

When the Supreme Court makes a decision, it is considered the law of the land. Consider this however. States can always disobey a Supreme Court ruling. Several of them have disobeyed the rulings on Obamacare as of late. Also, the President can always ignore a SCOTUS decision if he feels it convenient to his purpose. Andrew Jackson did this in the Trail of Tears incident. Now, ignoring a decision is important to understanding the power balance.

Criminal Justice is defined as "the system of law enforcement, involving police, lawyers, courts, and corrections, used for all stages of criminal proceedings and punishment."

It is important to understand this as a symbiotic relationship, that when one part of the system fails the others, the whole system suffers. So if the police, lawyers, corrections, law enforcement, and higher government decided to ignore the courts, then the courts would fail. This is why the SCOTUS really has power only at the mercy of two things. A) the federal government's need for laws and order, and B) The federal government's respect for law and order. If either of these were to dissipate, then the SCOTUS would be powerless.

With these arguments, I await your response.

Debate Round No. 2


BenD forfeited this round.


At this point, I should win on forfeit and arguments. VOTE CON.
Debate Round No. 3


Really sorry. You forfeited the first time we tried this, I did the seccond time. Maybe it will work out the third time?


I want to debate you on a different topic actually. Why don't you give me a list of topics in the final round and I will let you know which one I choose. (I choose because you get to be instigator). Does that sound good? But I feel like this topic is old news, and I did give it my best shot this time around. I was disappointed that a real debate could not be launched on this. If you want to debate this at a future time, we only do it for three rounds because of the amount of arguments we will have to cover. if it is five rounds that will scare the voters off. I'll get someone to vote on this one though because we both had arguments.
Debate Round No. 4


I will think about topics. ANything from last year or really the year before. I would kinda like to try your case. In this debate it would have to be long because nobody would vote for this case without seing all the facts. Why bother getting somebody to vote on a debate that didn't happen? Just leave it like we did with the last one that this happened to.
Debate Round No. 5
3 comments have been posted on this debate. Showing 1 through 3 records.
Posted by 42lifeuniverseverything 2 years ago
My first argument will be up tomorrow morning.
Posted by BenD 2 years ago
Yep. I can't wait to finaly get this show on the road! I have been waiting almost 9 months for this round.
Posted by 42lifeuniverseverything 2 years ago
I'll accept Monday afternoon, and we can get started for real! Is the argument period 3 days?
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