Its definitely sad, but no one can say she didn't live a meaningful life. I honestly see nothing wrong with a "conservative" judge if they are a good judge. The nice thing about being assigned to life on the supreme court is you don't have to think politically anymore. You are free to judge as the philosopher's do.

The nice thing about being assigned to life on the supreme court is you don't have to think politically anymore. You are free to judge as the philosopher's do. — Philosophim

Nice thought, but built on a fiction. Read a bit about John Marshall, chief justice 1801-1835.
"McCulloch v. Maryland, “we must never forget that it is a constitution we are expounding.”

I have stumbled over this; it looks interesting:
https://www.acslaw.org/wp-content/uploads/2018/08/acs_expounding_fnl_0.pdf

Likely you meant free to judge on the basis of the merits of the arguments generally within constraint of law and political reality, to which, amen.

The nice thing about being assigned to life on the supreme court is you don't have to think politically anymore. You are free to judge as the philosopher's do.
— Philosophim

Nice thought, but built on a fiction. Read a bit about John Marshall, chief justice 1801-1835.
"McCulloch v. Maryland, “we must never forget that it is a constitution we are expounding.” — tim wood

Perhaps it isn't necessarily an idealized "philosophical freedom", but it is an extraordinary freedom to create a considerable persona for yourself, and to realize all the potential of that persona. And to me, RBG did that, she exemplified what a Supreme Court Justice ought to be. I only had a general awareness of her iconic status, but when I heard of her passing I felt a monumental sense of the great loss to society.

I'm glad she's off the bench, not that she died. Her wish was that she survive this presidency so that her replacement might be decided by a more liberal president. Fair enough, but a political sentiment, unbefitting someone's whose interests should not be.

Hilarious. :lol:

. I honestly see nothing wrong with a "conservative" judge if they are a good judge. — Philosophim

Her wish was that she survive this presidency so that her replacement might be decided by a more liberal president — Hanover

But there wasn't such a thing as conservatives or liberals at the founding. So liberal and conservative interpretations of constitutional law would be unconstitutional, no?

Political factions aren't just dividing citizens but the Supreme Court as well.

Ironic how the non-partisan first president, G. Washington, warned against the forming of political factions and the effects they have, like in the nominating of judges, their approval and then the decisions that they make. This is the primary reason the U.S. won't last much longer as founded.

But there wasn't such a thing as conservatives or liberals at the founding. So liberal and conservative interpretations of constitutional law would be unconstitutional, no? — Harry Hindu

There was no such thing as a constitutional court at the founding. The idea that the Supreme Court had the right to strike down laws as unconstitutional was something the Court made up. Once they gave themselves that power, the next question was how they were going to interpret it. No one method of interpretation is obviously correct, so the one chosen will necessarily be subjective.

The broader interpretations one allows, the more power afforded the Court, and the less democratic the system.

There was no such thing as a constitutional court at the founding. — Hanover

Article three, section two: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..."

Article three, section two: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." — Banno

A constitutional court is one specifically vested with the power to strike down laws when violative of a constitutional provision. The US Constitution does not provide that power. The Supreme Court conferred that power to itself in Marbury v Madison. https://en.wikipedia.org/wiki/Marbury_v._Madison

Given the wording of the constitution, how could they have deemed otherwise? At least without considerable resort to yoga...

Given the wording of the constitution, how could they have deemed otherwise? At least without considerable resort to yoga... — Banno

For an example of a country with a Constitution that lacks a constitutional court and how that is possible, talk to @Benkei about what they do in the Netherlands.

Sure. But given the wording of the US Constitution, how could the Court have decided otherwise?

There was no such thing as a constitutional court at the founding. The idea that the Supreme Court had the right to strike down laws as unconstitutional was something the Court made up. Once they gave themselves that power, the next question was how they were going to interpret it. No one method of interpretation is obviously correct, so the one chosen will necessarily be subjective. — Hanover

"Article III of the Constitution establishes the federal judiciary. Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also established the lower federal court system."
uscourts.gov
...and the Judiciary Act was signed by Washington as the first President - a founder. The "founding" could be said to entail the years that Washington was President and then resigned - establishing a precedent that should have been recognized by all politicians since the "founding".

With Congress having the power to "ordain and establish" the judiciary system and the emergence of political factions that Washington warned against, the judicial system is not what the founders envisioned. The judges have become pawns for one of two political groups - interpreting laws based on promoting some political ideology rather than on the unique conditions of the case before them at any time. Isn't that what the blindfold on Lady Justice is for? For the Republicans and Democrats to be flaunting the fact that they are choosing "conservative" vs "liberal" (strange names for two groups that aren't entirely conservative or liberal) judges just shows how stupid we are as citizens.

Sure. But given the wording of the US Constitution, how could the Court have decided otherwise? — Banno

Jefferson thought otherwise:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." http://www.answers.com/Q/What_did_Thomas_Jefferson_say_about_judicial_review.

The Constitution has erected no such single tribunal, — Hanover

Is that so? Given the wording of the US Constitution: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." how could the Court have decided otherwise?

For the Republicans and Democrats to be flaunting the fact that they are choosing "conservative" vs "liberal" (strange names for two groups that aren't entirely conservative or liberal) judges just shows how stupid we are as citizens. — Harry Hindu

See the above quote from Thomas Jefferson:

Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps — Hanover

This debate over judicial bias is as old as the nation.

Is that so? Given the wording of the US Constitution: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." how could the Court have decided otherwise — Banno

That provision confers jurisdiction on the Court to interpret statutes and common law, but nowhere does it confer power to strike down legislation as unconstitutional. The distinction between conferring general judicial power (as that provision confers) and the powers of a constitutional court (https://en.m.wikipedia.org/wiki/Constitutional_court#:~:text=A%20constitutional%20court%20is%20a,and%20freedoms%2C%20among%20other%20things.) is what is being made here.

nowhere does it confer power to strike down legislation as unconstitutional. — Hanover

But

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." — Banno

Hence, if a case is brought forward that asks if a given statute is constitutional, it falls under the remit of the Supreme Court.

Biden only says that the health care system, as well as the rights of marginalized groups are at stake and that should he win he will nominate a black woman. This seems like a very proper stance for his political climate.

A deeper concern can be raised that following the November election the losing side will ask the Supreme Court to strike down the legality of the voting process for key states. Trump has already signaled this intent in challenging mail-in voting. It is for this reason that Trump and McConnell have already expressed their desire to force an early appointment of a Trump ally to the Supreme Court.

Supreme Court nominees used to need 60 votes in the Senate to be approved. In 2017, McConnell pushed through a vote to change the rules, so that nominees now only need a simple majority of 51 votes. In fact, 50 votes are enough for confirmation since Vice-President Mike Pence can cast the tie-breaking vote.

Hence, if a case is brought forward that asks if a given statute is constitutional, it falls under the remit of the Supreme Court. — Banno

Prior to getting into the nuts and bolts of American law, I'd first point out that I don't challenge the holding of Marbury, nor does any contemporary Justice, even the most staunchly conservative. It's well established (since 1803) that the Supreme Court has the power it does, and I find systems like exist in the Netherlands to be confusing in that they declare fundamental principles, enshrine those principles in a document, and then refuse to give their courts the teeth to enforce them. I must assume that the Dutch respect for culture and government is dramatically different than what exists in the US, with the Dutch legislatures offering great deference towards their foundational principles and having a desire to hold true to their stated ideals. The American way, on the other hand, is to have the respective sides fight for every inch and for the Court to deliver a sledge hammer every now and then when someone oversteps his bounds.

The only value I see in trotting out these ancient debates is to remind ourselves that arguments related to judicial power and judicial restraint are not new, but are challenges inherent under the US system.

Now to the nuts and bolts. I don't view the provision you cited from the Constitution as authority that the Supreme Court is a Constitutional Court. I view it as a declaration of general subject matter jurisdiction of the Supreme Court, meaning the Court is unlimited in the sorts of cases it can hear. The reason, for example, that I cannot obtain a divorce in the City of Atlanta traffic court is because that court is one of limited jurisdiction, having authority only to consider traffic law violations within the boundaries of the City of Atlanta. The Superior Court of Fulton County, however, is one of general jurisdiction, and it can hear any and all cases from divorce, murder, civil trials, and traffic tickets within the confines of Fulton County, even though many of those are delegated to courts of more limited jurisdiction. The fact that the Superior Court does not hold traffic court does not mean that it lacks the authority to; it just means it has delegated those duties to other courts. So, as a hypothetical, which I've never really thought about before, based upon the Constitutional provision you cited, I suppose the US Supreme Court could hold a jury trial trial as to the question of whether you properly paid your parking fee when visiting Yosemite National Park had it not delegated that power elsewhere. That is to say, it has subject matter jurisdiction as to all matters.

In any court, however, the question of what the law is remains before the court. If the City of Atlanta traffic code sets a speed limit in violation of state or federal law, the city traffic judge must consider those laws. She cannot say that she limits her considerations to city ordinances, but she must consider the hierarchy of all laws and determine which controls. That means as well that if she believes a traffic law violates the US Constitution, she must strike the law down. Her determination of what law controls is not a question of what sorts of legal matters she can consider and does not have anything to do with subject matter jurisdiction questions.

The point being that the provision you cited doesn't speak to whether the Constitution is the highest law in the land, but it speaks to what sorts of cases the Court can consider.

None of which undermines this:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution..."

The Supreme Court conferred that power to itself in Marbury v Madison. — Hanover

Presumably they inferred it as an implied power rather than conferred it.

None of which undermines this:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." — Banno

My point stands, which is that the provision you cite has nothing to do with the Court's ability to strike down laws as unconstitutional. If that provision were controlling of the issue, you'd think it might appear in the Marbury v. Madison case, the very case that announced the authority of the Court. It's not in there because it has nothing to do with the issue at hand.

If I'm not mistaken, every published SCOTUS decision cites Marbury v Madison as precedent for their decision - it's their bedrock. I wonder how strict originalists (like Clarence Thomas, who disdains stare decisis) justify upholding it.

the provision you cite has nothing to do with the Court's ability to strike down laws as unconstitutional. — Hanover

The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." — Banno

Black and white.

Black and white. — Banno

That's non- responsive. You're not quoting Marbury. You're quoting the Constitution.

This really isn't a philosophical question. It's entirely answerable whether Marbury relied upon the provision you reference. It didn't. You're confusing subject matter jurisdiction with the hierarchy of laws.

It would be entirely consistent with the US Constitution for it to contain the provision you reference and for it to also contain a clause stating, "No act of Congress shall be declared void on the basis that it conflicts with this Constitution."

It would be entirely consistent With the US Constitution for it to contain a contradiction? Ok.

would be entirely consistent With the US Constitution for it to contain a contradiction? Ok. — Banno

While I'm sure you enjoy making these quips, you remain entirely incorrect in your understanding of the Constitutional provision you cite. Your avoidance of the fact that you rely upon a constitutional provision to support the holding of Marbury that Marbury itself doesn't reference is disingenuous.

To the extent that you wish to present a novel thesis that the provision you cite logically necessitates that the Supreme Court be a constitutional court, you'll need some sort of real analysis of it, not just a mindless repetition of what it says followed by a refusal to respond to the obvious criticism that you've cited to an inapplicable rule related to subject matter jurisdiction.

I feel bad for her as I imagine she was desperately trying to stay alive long enough that her seat on the Court would survive the Trump era, and she didn't quite make it. Very close, but no cigar. Another month and she would have made it...