Tuesday, June 28, 2022

First, some background on the workings of the Supreme Court (for non-Americans)

I see a couple of problems right now, given the Supreme Court and its make up. For my non-American friends, let’s take a look at the Supreme Court members (new) and how they got there. This has made a massive impact on our laws.

First, an overview of our how our Supreme Court operates. The Supreme Court is made of 9 justices. After some early wiggles, the Supreme Court was determined to be the ultimate arbiter as to whether or not a law is Constitutional. That is, does the law violate the Constitution. That duty to rule on the laws has, over time, has expanded wildly over what is covered.*

Second, the Supreme Court is called the Supreme Court because there are quite a few lower courts. 

There are nine Circuit Courts that manage these Constitutional questions at a group of states level  which look at appeals from the District Courts.

These "districts" were determined when populations were much lower and have not been adjusted. For example the 10th Circuit Court covers sates with a combined population of 18.6 million people. The 9th Circuit Court covers states with a combined population of 56.3 million people. These Courts are the backbone of Constitutional questions. 

Below the Circuit Courts are 94 District Courts. They report up into the Circuit Courts by district. These handle the 400,000 Federal lawsuits a year. 

Third, of the Circuit Courts and District Court decisions, about 7,000 are requested to be reviewed by the Supreme Court. The Supreme Court usually only takes 100 – 150. Therefore, Supreme Court usually only takes cases it wants to resolve a decision on. It is also required to take on cases where two or more Circuit Courts have come to different decisions.

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Okay, now about the Justices. They are appointed for life. One can argue that life has gotten longer, so maybe this doesn’t make sense anymore. That seems a lame argument to me. BUT a good argument is that new members are assigned as young as possible to sit on the court as long as possible. Two of Trump’s Judges have a great change of staying there for 40 years. 

The justices are also much more ideological now than they were. This is on both the liberal side (the correct side) and the conservative side (the wrong side) – that was a joke.

But this appointment process has given us some very very unexpected outcomes. 

The three latest Justices were appointed by Donald Trump – who did not win a majority of votes, but a majority of states. And they were confirmed by the Senate by more Senators, but who represented a much smaller population than the losing side (remember each state gets 2 Senators. Wyoming’s 567,000 people get 2 and California’s 39 ,300,000 get 2). So a third of the current court was appointed and approved by representatives of a minority of the population. In 2 of the 3 cases, the appointment process itself was stalled or hurried so Trump could appoint conservatives. This is one reason people are upset. Two of those minority appointments changed the make up from middle of the road to very conservative.

So these are the Presidents that nominated the Current Court.

  1. Clarence Thomas – George Bush #1 – a Republican
  2. Stephen Breyer – Bill Clinton – a Democrat (1)
  3. John Roberts – George Bush #2 – a Republican
  4. Samuel Alito – George Bush #2 – a Republican
  5. Sonia Sotomayor – Barak Obama – a Democrat
  6. Elena Kagan – Barak Obama – a Democrat
  7. Neil Gorsuch – Trump – a Republican (2)
  8. Brett Kavanaugh – Trump – a Republican
  9. Amy Coney Barrett – Trump – a Republican (3)

Notes:

  1. Steven Breyer, a liberal, is retiring at the end of this session. His replacement is a Biden appointee - Ketanji Brown Jackson.
  2. Neil Gorsuch was appointed by Trump, after Obama's pick of Merrick Garland was held up for 11 months until after the 2016 election by the Republican Senators. Supposedly to let the public decide.
  3. Amy Coney Barrett was appointed by Trump in the last 2 months of his administration before the Presidential vote by Republican Senators in a direct contradiction to their earlier reason for not holding a vote for Garland.
  4. If either the Gorsuch or Barrett nominations followed the Republican's own promises, the Supreme court would be 4 liberals, 4 Conservatives and 1 Middle Ground


The political leanings of the Justices are:

  • Liberal
    • Breyer
    • Sotomayor
    • Kagan
  • Conservative
    • Thomas
    • Alito
    • Gorsuch
    • Kavanaugh
    • Barrett
  • Conservative-ish but not crazy
    • Chief Justice Roberts

It was the 5 Conservatives who decided to overturn Roe v Wade (Roberts wanted a more limited change).

It was all 6 conservatives that decided anyone can have a right to concealed carry guns anywhere

So, with that baseline of understand – you get how the Supreme Court works.

*One of the largest changes include the “interstate” commerce, which now covers a host of ways the states must have a common set of requirements. It is most easily explained in an example. Hairdressers and therapist have varying requirements per state. For example, in Arizona, to be a marriage counselor, you hang up a sign that says marriage counselor. In California right over the state line, you need a Masters in Psychology, and hundreds of hours of supervised therapy work

On the other hand, any company that has business is more than one state is governed by Federal Law. Everything from airplane requirements to ingredients in Siracha is overseen by the United States.

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