MR. JUSTICE ROBERTS delivered the opinion of the Court.

Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not entrusted to the Federal government. A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group for the benefit of another.The federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted.


U.S. Supreme Court
U.S. v. BUTLER, 297 U.S. 1 (1936)

But in 1937 President Franklin Delano Roosevelt threatened to abolish the Supreme Court if it continue to oppose his welfare-warfare schemes. Thereafter the Supreme Court Justices caved in in order to avoid a Constitutional crisis

Proposed questions:

1- Should the President Have the Power to abolish the Supreme Court?

2- Should any Law promulgated by the Court while it is under the threat be consider lawful?

FDR was a talker. However, just because he said it does not make it so. Presidents can not abolish The Supreme Court. I do know FDR attempted to take over The Supreme Court by having Congress increase the number of seats on the Supreme Court ( which they can do ). But, Congress did not do it, even though FDR said they should.

The President currently does not have the power to abolish the judicial branch of the federal government not should they as it would disrupt the balance of power between the three branches.

I do think the Horsemen of the Supreme Court did change their stance on legislation, but I would say that was due to public pressure, not FDR.

1- Should the President Have the Power to abolish the Supreme Court?

Of course not.

That said, let’s try to be accurate. Roosevelt did not want to abolish the U. S. Supreme Court, but to pack it. His proposal has not been reviewed kindly, even by liberals, but “abolish” is a misleading word.



http://en.wikipedia.org/wiki/Judiciary_Reo...on_Bill_of_1937



http://www.digitalhistory.uh.edu/database/...ay.cfm?HHID=479

"We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men." FDR

(1) What do that means, how do you take an appeal from the Supreme Court to the Constitution itself ?

(2) Let me ask you a question? Let's say that a "Liberal" wins the forthcoming election. The Court as is presently constituted has a "conservative majority. Let's say that President Hillary proposes to nominate a new judge for every Judge over 50 or for every judge who has a seizure disorder. President Hillary is concerned that the conservative court will reverse Roe v. Wade.

Should she be allowed to do so?




In U.S. v. BUTLER, (1936) the SCOTUS ruled against FDR's welfare state legislation. Two years Later same judges - no constitutional amendments - they do a 180 degrees reversal and start approving his legislation.

But you think that it was "due to public pressure" but gee whiz if that's the case then they are not judges they are politicians in black robes. Their guide is not the Constitution but political polls.

Nice slippery slope.

No. You will note that Roosevelt had a Democratic Congress, during the year in question. There were 75 Democrats and 17 Republicans in the Senate and 333 Democrats in the House and 89 Republicans. Should Hillary Clinton be elected, I doubt she would try to pack the court and doubt she would get any such measure through even a Democratic Congress.

Note: Please use the blue key to interpret the data:

Year Total Senate Democrats/Republicans Total House Democrats/Republicans President

1933 96 59/36 435 313/117 RooseveltF
1934 96 59/36 435 313/117 RooseveltF
1935 96 69/25 435 322/103 RooseveltF
1936 96 69/25 435 322/103 RooseveltF
1937 96 75/17 435 333/89 RooseveltF
1938 96 75/17 435 333/89 RooseveltF
1939 96 69/23 435 262/169 RooseveltF
1940 96 69/23 435 262/169 RooseveltF
1941 96 66/28 435 267/162 RooseveltF
1942 96 66/28 435 267/162 RooseveltF
1943 96 57/38 435 222/209 RooseveltF
1944 96 5738 435 222/209 RooseveltF
1945 96 5738 435 243/190 1945 Roosevelt/Truman

http://arts.bev.net/roperldavid/politics/congress.htm


Ann Coulter aside, there are many of us who are hoping Justice John Paul Stevens hangs on long enough that Bush doesn't get another appointment.

Um, was there some alternate universe where this was actually attempted? Court packing has been allowed- it is constitutional- possibly not ethical or good for the country- but perfectly legal.

What you are saying is basically the president declares themselves dictator for life and forcibly removes the Supreme court then?

That is pure fantasy stuff of post apocolyptic sci fi.

But legally remove- um, duh, no.

There are hypothetical real world scenarios, and there are pure sci fi fantasy stuff- this fits that one pretty clearly.

There is a helluva gulf between court packing and forcing a coup at the barrel of a gun.

One you could say is that the GW appointees are pretty clearly "yes men" to GW, certainly threw the election to him- but so far, no one has been forced to do something at the barrel of a gun.

The question is: should the prez have the power to abolish the supreme court and was that ever attempted?

Yes, it was by president FDR:

The Supreme Court continued to limit state and federal involvement in the economy through the 1920s and into the Great Depression, the economic hard times of the 1930s. The restrictions at first hobbled the efforts of President Franklin D. Roosevelt to enact the New Deal, a program of economic reforms and government projects intended to confront the Depression. Roosevelt tried to get the New Deal through by “packing” the Court—expanding the membership so that he could appoint justices open to his philosophy. Congress refused to expand the size of the Court, but the Court's justices soon eased restrictions on Roosevelt's programs. In a sharp about-face, the Court sustained far-reaching trade union and workplace regulations in NLRB v. Jones & Laughlin Steel in 1937. The Court soon used the federal commerce power to grant virtually unlimited authority to Congress to regulate whatever affected interstate commerce. The Court also rejected the doctrine of economic due process. By the 1940s, a new set of justices, all but one appointed by Roosevelt, had remade constitutional law dealing with economic matters.
Microsoft ® Encarta ® 2007. © 1993-2006 Microsoft Corporation. All rights reserved.

FDR wanted to pack it. Pack it, abolish it, whatever. The point is that to do that he would have needed a constitutional amendment wouldn't he? Those aren't exactly easy to create (thankfully). Without that option, then the courts would have absolutely zero accountability and the balance of power would be lost.

Look at it from the other side: if the courts were made up of 9 Justice Stevens clones that aquitted every poor person of damn near anything, shouldn't the Federal and Executive branches together be able to stop them somehow?

In response, I can only say, and I quote:

"That is pure fantasy stuff of post apocolyptic sci fi. "

Dude, if Bush (or Rove, or even Cheney) has a time machine AND body snatcher technology to have had "GW appointees ... [throw] the election to him", then methinks intimating the fact on a public forum is a fine way to draw the attention of the black ops crowd. Its been nice 'netting with ya CR, hope they only "re-educate" you rather than "disappear" you.




Contu, do you know the difference between "packing", i.e. making bigger and/or filling with your buds; and "abolishing", i.e. making smaller to the point of vanishing, eliminating, wiping out, etc?

Sure, if she wants to waste her time and resources. She can nominate Mrs. Pigpen for Queen of England, but neither the Mrs P. nomination nor your hypothetical judicial nominations will mean a darn thing. The only judicial nomination that means anything is for an open seat on the bench. Seats only become open as a result of 4 events.

• Death of a judge.
• Retirement of a judge.
• Impeachment of a judge.
• Creation of new seats.

If a President can convince Congress to create new judgeships, then as it stands, the President gets to nominate the new judges.

Now, would it be reasonable to amend the Constitution to prevent court packing a la FDR? Sure, a simple amendment that no new judgeships may be filled during the term of the President who signed the authorizing legislation into law.

Whether or not such a amendment is actually worth the effort is another question.


They are able to stop them. There is one explicitly granted method of doing so, namely limiting the purview of the courts themselves. Congress has the power to say "you blackrobes can't review this." Additionally, the size of SCOTUS is not defined in the Constitution and has, in fact, been changed in the past. While it may not be "cricket" to pack it a la FDR's attempt, it is Constitutional. Additionally, the Congress has much greater power over the inferior courts. They can simply eliminate the courts themselves if they want.

I wish the side hung up on activist judges wouldn't make light of Bush v. Gore. This was "judicial activism" of the worst sort with the so-called federalist Rehnquist Court creating a "non-precedent" that applied to one person, George W. Bush, and for the second time in U.S. history SCOTUS interpreted a state's constitution when it is not authorized to do so. Bush was appointed president the first time and he can't afford to send a SEAL squad after me or CR. It took 4 years for the idiot to realize resources devoted to killing bin Laden would suffer with a war on two fronts.

As for the debate questions, FDR may have pontificated, but I don't think the U.S. public of 60/70 years ago resembled the sheeple we're accustomed to today. He wanted to pack the Court for political ends.


Welcome to the Supreme Court. As to your second question, yes; any decision made by the Court under threat from the executive and/or legislature stands. I know libertarian diehards can't believe it, but demand for welfare legislation came from the bottom, not the top. Politicians could pass welfare legislation or look for new careers.

I think one of the things Libertarians MOST need to come to terms with is that bad management is what creates con men that make populist promises that are only sustainable for a while, and then become parasitic

In other words- starving poeple DEMAND welfare when they want to work and can't find work to feed thier families.

Desperate poeple come up with false socialist dreams.

And that gets us back to FDR. He had hundreds of thousands of unemployed formerly hard working Americans that were starving. FDR, quite literally, saved the nation by what he was able to do.

He packed the court, true enough.

But he didn't do it at the point of a gun, or in a coup.

And those justices proved to be independent of FDR in the end, reversing some of FDRs programs and such.

FDR lost on the idea to legislate turnover of the court

From Wikipedia source:

http://en.wikipedia.org/wiki/The_switch_in...that_saved_nine

It had been thought that Justice Roberts changed his vote in response to Roosevelt's court packing plan because the decision on the Washington labor law was handed down a few days after Roosevelt's announcement. However, the votes in the case had been cast several days before Roosevelt's announcement. Chief Justice Charles Evans Hughes was holding off for the liberal Justice Harlan Stone, who was ill with dysentery, to return to vote. Roosevelt's plan, White concludes, had no effect on the voting of the supreme court justices. Justice Stone returned two days after Roosevelt's fire-side chat and voted the way everyone knew he would - for the minimum wage law.

Your question in the title to this thread is:

"Should the prez have the power to abolish the supreme court"- well, not even FDR tried to "abolish" it, and, unless poeple really go demagaga over someone that the charisma to pack the legislative branch AND the presidency PLUS have the majority of US citizens for it- there is no chance in hell of it ever happening.

And another reason to be thankful for some of the divisions in the American poeple. I would hate for the nation to go too "red" (like I feel we have become) or too "blue" (which FDR probably saved us from kind of socialist/facsist civil war like in Spain) - but the idea that the president can "abolish" it is absurd

Manipulate, yes
Pack the court- yes

Abolish or end that branch of goverment's autonomy- NO

For further reading on the "switch in time saves nine"
http://en.wikipedia.org/wiki/The_switch_in...that_saved_nine

Well, the most obvious answer would be no of course. One of the most essential characteristics of democracy is the seperation of powers (the division of the state into branches with independent powers and areas of responsibility; the Executive, Legislative and Judicial branch). If the President (as chief of the executive power) decides to abolish the Supreme Court (the highest judicial power) the basic structures of democracy will be destroyed. So, no, the president should not be allowed to have such a power.

No. Actually, I was waiting for you to spell out the difference for me.

Now let me ask you a question, Lets say that every Prez tries the same thing that FDR did, eventually the court would have a 100 judges and NO CREDIBILITY.

Isn't the Court for all practical purposes abolished as an institution? Do you trust a ruling by the Cuban Supreme Court?!?!?

1. Will everyone talking about the first GW election please put a sock in it about judicial activism?
No GW appointees were on the court then. It wasn't a scam. Give it up, or please make your avatar a picture of a conspiracy theory.

2. The Supreme Court has final say. No checks. No balances. That's absurd. I believe that the Congress should have veto power or something. Someone should. The congress + the President should have a review board. We've seen time and time again in the US how Supreme Court decisions have the capacity to change the very landscape of our nation, unchecked.

Furthermore, they're there for life. We don't want our silly old Grandmother driving, but we have no problem with an 85 year old Supreme Court justice? Good idea.

I believe that people support the USSC power because over time it has supported their subversive notions (ie Roe v Wade). There should be some way to 'check' that power.

The Court would lose all credibility along with the president and Congress. The Constitution may not set limits on the number of judges that make up federal courts, but anything as blatant as 100 is very unlikely if every president tries the same thing that FDR did (pressure Congress into increasing the number of judges) and succeeds. Even if Congress is crazy and wasteful enough to authorize 100 Supreme Court seats, why bother when you can prune your ideological foes by reducing the number of seats that constitute the highest Court? You're imagining the president going about manipulating the highest Court the hard way.


Right. Cuz the U.S.'s financial interests are subject to a foreign power and our president, after overthrowing the same government he works for, will install a puppet SCOTUS while the nation is still giddy with joy.

Get some historical perspective if you're going to make hard comparisons between the U.S. and a banana republic. Please.


Now that it's been brought up in the thread—no.


GW didn't have to appoint conservative judges to SCOTUS. They were already in place. Judicial activism, such as the Right frames it, is not unique to the Left. Had the Gore exception been the Bush exception instead, you'd be of the same opinion as us "conspiracy theorists"; that Gore was appointed president of the United States of America, and the howling and gnashing of teeth on the Right would surpass the grief they've given SCOTUS over Roe v. Wade.

Well, it appears that Justice Souter , an insider, who has been a federal judge for many years recognizes judicial activism when he sees it. His dissenting opinion in Bush v. Gore clearly explains that there was no Constitutional basis for the majority to overrule the Florida Supreme Court



Book says Souter mulled resignation after Bush v. Gore

September 4, 1:18 AM

‘The Nine’

According to Jeffrey Toobin’s new book on the Supreme Court, Justice David Souter nearly resigned in the
wake of Bush v. Gore, so distraught was he over the decision that effectively ended the Florida recount and installed George W. Bush as president.

Well, this surely is kind of bizar.

Aevans, in all honesty I have to ask, what exactly was your purpose of quoting me in this post? How come you quote me, and then give a response that in no way adresses my statement? Do you agree with me, or do you disagree? Or did you perhaps intended to quote someone else, but by accident quoted me instead? I am really clueless here, could you please help me explain this one?

Thanks

When, pray tell, is SCOTUS authorized to interpret a state constitution? What is the basis of such an authorization? How did SCOTUS violate any such authority in this instance? Inquiring minds want to know...

So what if "demand ... came from the bottom"? Nothing in the Constitution of the United States authorizes federal welfare. Given that you've had no objection to "demand from the bottom" being tossed out by federal judges when it pertains to abortion and creationism, and likely gay marriage as well (Iowa's recent [mis]ruling comes to mind), "from the bottom" isn't much of a leg for you to stand on.

Actually, that is not an essential characteristic of democracy. Living in a parliamentary democracy, you should know that. The only "essential characteristic" in a democracy is the ballot box is meaningful. How the government of a democracy is structured is a whole 'nudder matter.

Correct.

Here are some historical facts:

Separate opinion of MR. JUSTICE McREYNOLDS.

"The invalidity, also the destructive tendency, of legislation like the Act before us were forcefully pointed out by President Franklin Pierce in a veto message sent to the Senate May 3, 1854. [*] He was a scholarly lawyer of distinction, and enjoyed the advice and counsel of a rarely able Attorney General -- Caleb Cushing of Massachusetts. This message considers with unusual lucidity points here specially important. I venture to set out pertinent portions of it which must appeal to all who continue to respect both the letter and spirit of our great charter.

It cannot be questioned that, if Congress has power to make provision for the indigent insane without the limits of this District, it has the same power to provide for the indigent who are not insane, and thus to transfer to the Federal Government the charge of all the poor in all the States. It has the same power to provide hospitals and other local establishments for the care and cure of every species of human infirmity, and thus to assume all that duty of either public philanthropy or public necessity to the dependent, the orphan, the sick, or the needy which is now discharged by the States themselves or by corporate institutions or private endowments existing under the legislation of the States. The whole field of public beneficence is thrown open to the care and culture of the Federal Government."



301 U.S. 548
Steward Machine Co. v. Collector of Internal Revenue

The questions are all moot. No such power exists or an ever exist.

How do you get the impression from my quote that SCOTUS has authority to interpret state constitutions?


I really don't know what you're talking about here, BD, but the whistle smiley means you surely won the argument.

Your quote doesn't give that impression, yet, as you say yourself, SCOTUS has done so at least twice. So the question you imply is "on what basis did SCOTUS do so?" I'm asking whether or not you know the answer to that question, because I surely do.

You appear to be inferring that "demand from the bottom" legitimizes a policy, even when the policy runs contrary to the Constitution.