Re "The power of five," Opinion, Jan. 19
Eric J. Segall bluntly states what most people recognize: The Supreme Court is simply another political institution.
The standard of "irreconcilable variance" that Segall discusses sounds good in theory, but knowing how lawyers think — or "mis-think" — even this standard is ultimately in the eye of the beholder.
We should consider imposing some form of supermajority on the court for overturning an act of Congress. Since many, if not most, of the issues in which this standard would apply are truly political ones, they are best left to the legislative process, not to "the power of five."
While it seems that the court itself could adopt irreconcilable variance as a standard of review, imposing a supermajority requirement would no doubt take a constitutional amendment — which, in the current atmosphere, seems impossible.
But it also seems to me that this idea should appeal to both right and left, as both complain loudly about an "activist" court when their ox is gored.
James A. Harley
Segall's point is well taken. We now have a situation in which five unelected members of the third branch of government legislate for us all.
Back at the time of Marbury vs. Madison in 1803, Congress abdicated its constitutional responsibilities to Chief Justice John Marshall's Supreme Court. Marshall, a Federalist, usurped the power of both the executive as well as legislative branches by creating out of thin cloth the notion of judicial review of actions taken by those branches.
This was a political decision based on his animus toward President Thomas Jefferson (a Democrat-Republican) to limit his power. The Congress of 1803 and subsequent ones could have limited the court's jurisdiction, but they have instead sat on their hands.
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