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Old October 13, 2008, 08:26 AM   #12
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,277
Check, Balances and Constitutional Theory

Quote:
Originally Posted by Tennessee Gentleman
Quote:
Originally Posted by Antipitas
On the other hand, by giving its decision, the Legislature can use it's powers to moot the decision in many cases,
Agree, but I suspect that fact does color their decisions.
Absolutely, it colors what is said in dicta, if not outright in the decision itself. Many times the Justice writing the decision will include "a blueprint" on what the legislature needs to do to make the law constitutional.

But there is more to this than meets the eye.

When FDR became President, he also had a legislature that was controlled by the same party. The threat of adding new Justices (that would decide cases in favor of his "New Deal") was very real. Real because he had a Congress that voted in lock-step with his proposed legislation. Since it is the Congress that decides (via legislation) how many Justices that sit on the Supreme Court, it would have been an easy reach.

In more recent times, we see much of the same thing with the first 6 years of the Bush administration.

This was not exactly what the founding generation had in mind.
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