Sucks and is unfair, but it's the same principle that stops the government from, for example, jailing people who used to drink if Prohibition were put back in the Constitution.(1)
(1) There's a carve-out in jurisprudence that if something was illegal in the past, and you're jailed for it, and it is later made legal, your continued incarceration can be re-considered. But that's handled on, generally, a case-by-case basis.
No, it's not: ex post facto is a term of art for retroactive criminalization; QI applies only to civil liability. Retrospective enhancements to civil liability are not Constitutionally prohibited.
Several examples here.
There already is legislation making government officials liable for violating someone's Constitutional or legal rights. 42 USC 1983 is pretty clear:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."
So I don't see why the court had to make up this whole "qualified immunity" thing in the first place. Just judge the question: did the government official violate the person's Constitutional or legal rights? If they did, they're liable.
So would I, since according to the 4th Amendment warrants must be "particularly describing the place to be searched, and the persons or things to be seized".
> It says a lot about the country when we need MORE legislation and more rulings to prevent such a thing from happening.
Since rulings and legislation apparently haven't stopped it from happening up to now, I'm not sure how more rulings and legislation will help, without some fundamental change in how the rule of law is viewed by everyone.
The Supreme Court has the ability to rule on things overnight. A very well known case where they did was Bush v. Gore[0]; The case was argued 11 Dec 2000, and ruled on the next day.
They just generally don’t because ruling overnight would take their focus away from the other cases they need to rule on.
source: https://en.wikipedia.org/wiki/2000_United_States_presidentia...
> Ultimately, a media consortium [...] hired NORC at the University of Chicago[68] to examine 175,010 ballots that were collected from the entire state, not just the disputed counties that were recounted [...]
That's saying that it was sampled from the entire state rather than "select" counties.
On a broader point, it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore, but it is unclear if any recount would have given that result. Note that in addition to the infamous hanging chad controversy, there's also a decent chunk of votes for Pat Buchanan in areas that don't match up with his demographic base that were probably meant for Gore.
Or put somewhat differently, Florida in 2000 was a case where the margin of victory was less than its ability to accurately record votes.
This is not supported by any of the sources in the wikipedia page. There don't seem to be any sources saying how the sample was collected from each or which counties. ...you are right it does not say "select".
But regardless, a margin of ~100 votes on a sample of 175K votes is not a margin with which you can make the statement "it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore" ...that's ludicrous.
We know that the butterfly ballots were a poor design that caused vote confusion, and we also know that Bush was less affected by this than Gore (by virtue of the fact that Bush was the first hole, and thus any misalignment caused by an oblique view would line up with no hole, as opposed to oblique views causing Gore's arrow to line up with Buchanan's hole).
From the actual results, we know there is a chunk of votes in Palm Beach for Buchanan that doesn't seem appropriate. According to Buchanan's campaign, this would be a bit shy of 3000 votes for Buchanan that should have been for Gore [1]. No recount would have changed these votes (nor should one), but a more accurate voting machine would have given these votes to Gore.
That's why I say that it seems safe to say that Gore legitimately won Florida, on the basis on what the voters intended to vote, but it's quite unclear what even the best recount would have said the winner is.
[1] https://en.wikipedia.org/wiki/Pat_Buchanan#2000_presidential...
Hopefully this law passes, but even it doesn't the court should still reverse the previous interpretation.
No, because the current state of the law still matters. In fact, it might matter even more if there are legislative proposals pending.
Well, it's got one big reason: to clarify the basis of the doctrine, particularly, whether (and, if so, to what extent) QI for discretionary acts not covered by absolute immunity is, as IIRC absolute immunity itself is held to be, of Constitutional character and thus not subject to legislative nullification.
That they have to decide cases to create said precedent is a side issue.
What this means is that if the law is likely to be changed, then there is little incentive to set a precedent that will have effect on a limited number of pending cases. Whereas if the law is not likely to be changed, the precedent set will affect many future cases and has a greater impact.
Therefore the Supreme Court is properly less interested in cases if it looks like legislation will be passed to address the issue.
Not really. The primary job of the judiciary, SCOTUS included, is to resolve "cases and controversies." This goes to the heart of judicial restraint, as proscribed in the Constitution, and is commonly referenced in the Court's opinions.
Functionally, SCOTUS ends up writing precedent. But the precedent must flow from the case. Cases mustn't be decided for the purpose of creating precedent.
You don't have to take my word for it. The Supreme Court gets about 7000 petitions per year and only listens to 100-120 of them. Per https://www.ushistory.org/gov/9c.asp the criteria that they choose by is:
Generally, the Court considers only cases that have far-reaching implications beyond the two parties involved in the dispute. For example, a case in which a student sues an assistant principal for searching a locker may shape the privacy rights of all students in public schools. The court also tends to hear cases in which two lower courts have reached conflicting decisions. And it tends to look closely at lower court decisions that contradict earlier Supreme Court decisions.
In other words it chooses cases based on the importance of the precedent that is likely to be set or reinforced. The importance of the case to the people involved is less important than that.
No, the job of the Supreme Court is to be the last court of appeal to uphold the US Constitution and laws passed under it. It does that by deciding cases. Setting precedent is a side effect, which can be helpful if it reduces the need for future cases of the same type to have to come to the Supreme Court again, but is not the primary purpose.
The result is that precedent is the most effective tool that the Court has to serve its purpose. And therefore that is the most important thing that they do. And they are extremely highly aware of it.
And all 100% of its decisions decide cases. So more of its decisions decide cases than set precedents. So your argument is a non sequitur.
The prestige and legitimacy of the court is absolutely something that the court itself cares about.
The SCOTUS can't always "just go back" and pick up something they leave behind now, in the event Congress doesn't act. They kind of need to seize the moment.
Finally, if the Congress disagrees with the court, we could pass an amendment or other federal law.
Congress has the _power_ to act faster, but not always the ability.
This is a problem entirely of judicial making. While I agree that Congress _should_ clean up the mess, this isn't one for the justices to punt on. They created the problem, they should pick it up as soon as they are able to.
That is specifically and only in the hands of the court, unless you want to amend the constitution.
The Constitution nowhere says that the Supreme Court has the sole ability or power to "shape the boundaries of constitutional law". It grants the Supreme Court "judicial power", but judicial power is not the only power related to the law.
Who do you think can determine the boundaries of con law?
>Congress is the ONLY branch of the government which gets to shape the boundaries of constitutional law.
Yeah, no. Not even close. Are you familiar with Miranda, Brown v. Board, Obergefell and dozens or hundreds of others? These are all the supreme court shaping the boundaries of constitutional law. Congress has zero power to intefere here. If Congress passed a law trying to outlaw gay marriage tomorrow, it would be unconstitutional and unenforceable immediately.
You say it yourself in your second paragraph: Congress has plenary power to shape the boundaries of constitutional law via amendments.
No, I didn't say that. Congress does not have "plenary power" (not a single actor in US government has plenary power). Constitutional amendments require approval by states, so if you think I was saying congress had plenary power over anything, you misread.
>he judiciary only has power when the legislature has not spoken, and that power should, theoretically, be constrained to mapping the smallest contours of the constitution because delineating the shape of the boundary is Congress's domain (some would say it is their most important duty, which they have neglected for the past half century).
Not true at all. The Supreme Court can rule any legislative act of congress unconstitutional. Congress can make whatever law it wants and Scotus can say "nope". I love that someone who doesn't know about Marbury v. Madison is attempting to lecture me on constitutional law.
The Supreme Court cannot rule an amendment unconstitutional.
Well, duh. If Constitution is ammended, the new stuff can’t be “unconstitutional” because it’s literally part of the Constitution.
Besides, you’re the one nitpicking. Sure, the Supreme Court can’t change the Constitution, but their job is to interpret it. The First and Fifth Amendment don’t make any mention of technology, but the Supreme Court has ruled that those protections apply to technological speech and searches.
Your sarcastic comment is exactly my point. If Congress has the power to make something literally part of the Constitution then they literally have the power to shape the boundaries of constitutional law because they literally have the power to rewrite the Constitution. And if Congress is the only entity with that power then their power is plenary. Which is to say that the power to shape the boundaries of constitutional law is not something that is specifically and only in the hands of the Court.
Ex falso quodlibet. Congressional action is not sufficient to alter the Constitution.
Wow, that's wrong...
Take Loving v Virginia: there, the court ruled that interracial marriages must be governed by the same rules as all other marriage.
No law of Congress can overturn that ruling. Only amending the constitution or the court itself have that (theoretical) power.
Our experiment in democracy is throwing errors.
WTF (sorry) took them so long? And how do you know what will pass as a law? Should we wait decades for cases to make it again to the court? Nope, SCOTUS should state what they think and be it.
But even if this law could go through, gambling on the future is not what courts do.
I haven't read the proposed legislation so cannot speak to any specifics that may or may not be objectionable though.
Edit: I will just reply to all of the comments downthread at once because they all seem to urge the same thing. SCOTUS has no incentive to act when the legislative branch is doing something that could easily overturn or not align with their decision, which would render their decision moot. A law that Congress passes overrules any and all SCOTUS precedent on the issue because Congress "legislates against the backdrop of the common law." Further, Congress has the ability to move much faster than SCOTUS: a bill could be passed on less than a month in Congress while it will take at least a year for SCOTUS to reach a decision.