#Scotus stopped being a court and anointed itself America’s unelected super legislature when Congress gave it power to choose which cases it takes. Today the court uses that authority to select which questions about those cases it wants to answer. Congress can reform the #supremecourt without obliterating the institution through court packing, by passing legislation to end its arguably unconstitutional question-selection power. #law https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3974890
@SenatorMoobs Congress didn't give the Court the power to choose which cases it takes.
That choice is inherent in having the independent judicial branch.
And it's a really good power to have! The Court should not be required to rule on cases that haven't been fully explored yet, or cases where the lower court acted reasonably but not absolutely correctly.
@SenatorMoobs the problem is, Who's going to enforce mandatory jurisdiction?
The other branches couldn't impose punishment without violating the independence of the judicial branch.
The Court's power to select which cases to hear is a fundamental result of the separate but equal design of the federal government, and Congress can no more force the Supreme Court to take a case than the Supreme Court can force Congress to take up legislation.
That Congress would pass legislation to recognize this is nice, but it was not required.
@volkris it’s not just “nice” that Congress granted the court discretionary jurisdiction, it’s the only reason they have it. The original Judiciary Act passed by the First Congress provided mandatory jurisdiction. SCOTUS was required to hear cases appealed from lower courts, and it did, for a century. If the court refuses to follow the law regarding its jurisdiction today, Congress has any number of tools to curb the court, such as its power of appropriation, and ultimately impeachment.
@volkris The court’s power to select which cases to hear is called certiorari and was instituted by the Judiciary Act of 1925. Prior to that time, the majority of the Supreme Court’s jurisdiction was mandatory and not discretionary as it is today.