Ruth Bader Ginsburg has died.

[celedhring]

The Supreme Court specifically has almost no defined constitutional powers (it has some, I said almost), most of the powers of the judiciary have evolved out of historical practice / norms and statutes empowering them to do specific things.

A huge portion of court rulings that go beyond just the issue before the court, and for example make broader constitutional pronouncements, are often not "self-enforcing", meaning the court is arguably just giving advice to the political branches about what's acceptable. Take for example if the Supreme Court quashed the entire ACA, but the executive continued to fund Medicaid expansion and the states continued to participate, and the exchanges continued to operate. The court cannot "create" criminal law, it would be difficult to go after any of the officials criminally (not least because you would need a lot of executive help to do so--a big part of why the Trumpers have gotten away with a lot of bad behavior is the President actually controls to a significant degree the Federal law enforcement apparatus, even though by "norms" the DoJ is supposed to lean towards being apolitical.)

What you could have is people suing as individuals basically saying they don't want to pay into this unconstitutional system, but even that would be hard to enforce.

It would obviously create levels of chaos, but it would also depend heavily on what we're talking about. On a case by case basis ignoring the Supreme Court could have anything from "national catastrophe" to "nothingburger" consequences.

I'm really not familiar with the US legal system, but if that happened here, besides the Constitutional Court's own enforcement powers you could be prosecuted for contempt of the court (has happened several times, like in the Catalan referendum of 2014). Of course, as you say, this probably wouldn't matter if you had a noncompliant federal government willing to go to the last mile.

[Sheilbh]

On point 3 I just made--frankly--the court needs its balls clipped much more than it needs packed.

I don't disagree with any of those and I think it's kind of a symptom of a system that has basically abdicated doing things. I think this is a consequence of paralysis in the legislature is that the court system becomes a focus of policy decisions because if you can get it to hear you they will make a decision one or the other but also, probably, the executive is going to push the limits of what they can do which will also end up in the court.

I don't know how you de-escalate the legislature so that law making can happen in a normal way.

Also and this is a total aside I remember a really weird moment when Ireland had the referendum on gay marriage and I saw lots of progressive Americans who were very happy but basically saying this is a right so it should be something you have as a right and you do that through a court case and that it's wrong for rights to be subject to a democratic vote like that. And, maybe it's just being from the UK where we don't have constitutional rights and the ultimate accountability is always democratic, but I found that weird and in my head a right that is based on a court ruling is weaker and more contingent than one that's based on a democratic process and vote.

[OttoVonBismarck]

Also just outright ignoring its rulings is along a spectrum of activities that could be done to reduce the court's power--and I think in some instances it is actually appropriate, and there's historical precedent for it. But there's other less ambiguous things, like jurisdiction stripping clauses in legislation (depending on the scope of the law this sometimes won't be a valid option.) Like take the recent tussle with TikTok, some people questioned how the President can legally just shut down a private company like that. So a combination of laws was actually at play, the Defense Production Act (a 1950s era law which broadly codified the sort of national security based economic interventions FDR did during WW2), and CFIUS (a committee that reviews foreign involvements in companies that do business in the United States (it does not matter where they are domiciled); an interesting thing about the statutes giving the President the power to intervene in the economy is that his decisions by statute are specifically exempt from judicial review.

Jurisdiction stripping isn't carte blanche to go crazy--even with CFIUS actions the courts have noted that while their jurisdiction is indeed significantly limited due to the statutory language jurisdiction stripping them, there are areas on which they can rule. For example there is a judicial precedent that unless the language of the law as passed by congress, clearly and convincingly intends for the jurisdiction stripping, or blocking of judicial review, to include precluding review of constitutional due process claims, the assumption is that even in statutes that limit judicial review such claims can still be reviewed. So a company negatively impacted by a Presidential order pursuant to a CFIUS determination isn't "ordinarily reviewable", since the statutes do not take the extraordinary step of clearly precluding even constitutional due process claims, its decisions can be reviewed on those grounds. The courts cannot review its decisions on the merits, i.e. the court can't dig into the issue of "is this company really a national security threat because it shares data with the Chinese Government", that is basically a disallowed role for the judiciary in such matters.

[OttoVonBismarck]

I'd also note jurisdiction stripping probably can't solve like, the abortion debate. If the Supreme Court overrules Roe v. Wade, it would be very difficult for any entity to stop say,  the entire South from criminalizing abortion. No judge would rule that a prosecution could not proceed if there was a valid state law supporting the charge. You could maybe pass a "National Right to Abortion" law and try to preclude it from judicial review, but I don't really believe that would work.

But a lot of "process based" issues, which some of them get into corporate and economic regulation by executive branch agencies and appointed bodies, some of which I think Joan was alluding to when he mentions the courts do more than rule on abortion, a lot of desired progressive "process changes" and things of that nature, you could very much have significant limitations to the authority of the courts to apply judicial review to things like NLRB, FCC, FEC, CFPB etc decisions, and you could create new bodies like that in other areas and significantly limit the authority of the courts to review their actions. What this does is shifts the playing field to the executive--which I think is fine, that's an elected office, and most regulatory and policy decisions need to be made by the branch of government that is beholden to the electorate.

[alfred russel]

OvB, I think there is more power to the USSC in the modern world than you give it credit for.

Presume that a court overruled ACA. The government could continue to go along with funding the ACA, but private companies could be exposed to private action if working with it. It could also be quite chaotic in the civil service, with individuals refusing to cooperate on constitutional grounds, and courts taking their side/preventing termination.

The Brown vs. Board decision you mention was set up perfectly to be ignored. It was telling states that were politically unified against something to do it, plus integration required actual legislation that the courts couldn't make. Similarly Northern states ignored Dred Scott before the Civil War.

My understanding is that Lincoln basically ignored the courts habeas corpus rulings during the civil war in part by taking advantage of the court taking time to act. Ie, he suspended habeas corpus in a moment of crisis and by the time the court said "you can't do that" the moment of crisis had passed.

Ignoring a ruling the way Jackson did in Cherokee Nation vs. Georgia would be extremely difficult today--the aggrieved party could privately sue for damages and a restoration of property. That is almost certainly the most notable moment that the USSC was ignored.

[OttoVonBismarck]

I actually don't really know that the court can strike down the ACA, to be frank. There is not a singular insurance market in the United States, there's one for each state, and the implementation of the ACA involves a huge number of executive orders and state laws implementing it, it would be almost impossible to unwind them all in a single decision. Like the lower court ruling that said basically "the reason this law was constitutional is that the individual mandate is issued under congress's taxing authority, and since congress has set the mandate at $0 there is no longer a mandate and so the law in its entirety is unconstitutional" is actually such a deeply bizarre and incomprehensible bit of jurisprudence it would be almost impossible to follow a Supreme Court decision that upheld it.

There are elements of the ACA that could be struck down, but most of the low hanging fruit was already purged out--Roberts quashed the mechanism that compelled states to participate in Medicaid expansion and now it is voluntary, and congress/Trump have gutted the individual mandate (which could be struck down.) The popular assumption that without the individual mandate the law can't function, actually has proven to not be true, it ends up the exchanges are still mostly working fine and the individual mandate has more or less never really been enforced.

[The Minsky Moment]

The ACA is a federal statute so yes a federal court can rule on its constitutionality.  The challenge is that the individual mandate in the ACA exceeds the Article I powers of Congress.  The argument is then that the mandate is inseverable from the rest of the ACA and thus if it the mandate is not constitutional the entire law falls.  The 5th circuit accepted the 1st argument and punted the second back to the district court instead of deciding on the law.

As you say the whole thing makes no sense - Congress amended ACA to remove all substance from the mandate (there is a theoretical exhortative requirement to buy insurance but no consequence for ignoring it) and thus the constitutional challenge is essentially taking aim at a nullity - i.e. the petitioners are effectively saying that Congress lacks Article I authority to include language in a law that does nothing.  And they are then saying that the portion of the law that does nothing is so essential that the entire law must therefore go.  This "inseverability" argument is based on trying to stick the defendants with arguments made by defenders of ACA in 2011-12, ignoring the fact that the ACA has changed and evolved significantly since then, especially given the 2017 amendments nullifying the mandate.

[OttoVonBismarck]

The court could rule anything they want, there is no real limit to their ability to put words in a ruling. I am saying that given the practicalities involved I am not sure that they can functionally just erase the insurance exchanges and medicaid expansion. There's a lot of implementing political acts that would have to be taken there.

Another thing they could potentially strip away would be the regulations on employer health policies, though, since it would obviously let employers offer policies disallowed presently and the government would not be able to effectively litigate against companies doing that.

[The Larch]

Just promoted by the Republican Senate Majority:

[Eddie Teach]

"She has 3 initials, right? So let's Photoshop her as Biggie Smalls and call her notorious." "Genius! Where do you come up with this stuff?"

[celedhring]

Why are people photoshopping old/middle aged white women as rappers? 

And I don't mean that as in "cultural appropiation!!!" I just find the connection really odd. 

[grumbler]

"ACB, easy as 1-3-2...."

[Barrister]

Why are people photoshopping old/middle aged white women as rappers? 

And I don't mean that as in "cultural appropiation!!!" I just find the connection really odd. 

In this case it's just a play on the "Notorious RBG" meme.

[The Larch]

Why are people photoshopping old/middle aged white women as rappers? 

And I don't mean that as in "cultural appropiation!!!" I just find the connection really odd. 

As Beeb said, Ginsburg had, in her later years, an online meme going on that renamed her as "The Notorious R.B.G.", playing on her assumed badassness as a judge. You can find tons of stuff online about that, mostly her picture with the photoshopped crown, but it has been used for books, exhibitions and other more "serious" uses. Apparently Gisnburg enjoyed it and said she was ok with it because after all The Notorious B.I.G. and her were both from Brooklyn.

In this case, the Republicans simply took that and copy/pasted it for the new judge, who also happens to be known by a three word name.

[celedhring]

Fair enough, didn't know RBG had long been associated with that picture. Thought it just popped up all of a sudden after she died.