The Supreme Court - CIP

In the Supreme Court CIP discusses, errrm, SCOTUS. This of course is in the context of Kavanaugh.

I jumped in because of his the Supreme Court is not only the ultimate interpreter of the laws but has also appropriated the right to judge laws against the template of the Constitution and strike down those it finds wanting, which I found odd. After all, some entity is going to have to do this; the court is the obvious one.

CIP continues I prefer that laws be made by the legislature rather than the Court. I think that's sort-of snark; anyway, I replied:

Everyone agrees that the laws should be *made* by the Legislature (pace law-is-custom, of course). But that leaves open two issues, that need to be resolved: interpreting the law, and conformity with the constitution. Neither of these is "making" law, except in a rather stretched sense (notice we're not talking about common law at this point).

If you're Hobbes, then the person who gets to interpret the law is effectively the legislator, but this is too broad, because the interpreter doesn't have arbitrary authority to do so, in practice. So the courts get to only interpret ambiguous bits, and therefore the legislature, if it likes, gets to have another go and remake the law if it wants to.

The constitution could have included a clause stating that the legislature is trusted to ensure that laws that it passes are consistent with the constitution, and therefore all laws passed are automatically constitutional, but it didn't. Absent that there is an unavoidable need to some body to check this constitutionality. And (having now got to this point it becomes obvious) since the legislature can't be trusted with this task, it has to be the court.

The constitution genuinely is there to prevent majoritarian tyranny, so yes it must be capable of forbidding some laws, no matter how much people want them. See the aforementioned church-n-state. Of course, even that can be solved if you have enough votes by changing the constitution (see-also https://cafehayek.com/2018/10/formally-amending-constitutions.html).