We are talking about the aftermath of Scalia’s death here, right?[/quote]
That’s the small picture. The big picture is left-wingers are gleefully plotting a coup now that the the stars have finally aligned for them. Soon they’ll be able to pack the Supreme Politburo with left-wing activists who will enact all those policies they can’t get passed into law democratically.[/quote]
So if I understand you correctly, you consider it a coup as long as a left wing judge gets appointed and not a coup as long as a right wing judge gets appointed. But you also state that you want the system to be democratic. So, if the “wing” of a judge is determined by the “wing” for which the majority most recently voted, isn’t that already the kind of system you say you want? Or are you proposing a reshuffle of the SC after every election?
Btw are there any American judges generally regarded as centrists or non-partisans? And do you think they would be more democratically appropriate despite the majority (both wings combined) being vehemently partisan?[/quote]
I’m proposing a system in which judges confine themselves to judging and refrain from usurping the power of the legislature. Between the right-wing activism of neoconservatives though, the left-wing activism of liberals and the tenuous grasp of democratic principles of the electorate that horse has left the barn. Now it’s just a matter of conducting a post-mortem of America’s democracy.
But in your future republic, who will judge whether or not a judge is usurping legislative power? A fourth branch of government? Or will the voters somehow be sure to elect only presidents who are somehow sure to appoint only non-usurping judges?
In the extant republic, if there’s broad democratic support for the notion that the judiciary is out of control, the state legislatures can amend the constitution to limit the judiciary’s power. It takes 3/4 of them, but constitutions aren’t usually considered documents that should be amended every 4 to 8 years. So is the system not already democratic, or is it just not democratic enough? Or are Americans just too stupid for democracy? But then what’s the solution?
(I don’t have any solutions; I’m just asking. )
We have that already. The judges uphold or strike down existing laws. They do not “legislate from the bench” as so many claim to say.[/quote]
That’s the party line, of course, like North Korea is the “Democratic People’s Republic of Korea” and East Germany was the “German Democratic Republic”. The truth is more along the lines of what a wise Latina once note though when speaking to the choir:
[quote]All of the legal defense funds out there, they’re looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law, I know. I know. (laughter)[/quote] Sonia Sotomayor, 2005
Even liberals get a little fuzzy on the notion occasionally that the most important majority in America these days is composed of only five people. Fortunately there are those ever vigilant apparatchiks constantly at work reminding them where America’s most important policies are really made these days and it’s not the White House or halls of Congress:
But in your future republic, who will judge whether or not a judge is usurping legislative power? A fourth branch of government? Or will the voters somehow be sure to elect only presidents who are somehow sure to appoint only non-usurping judges?
In the extant republic, if there’s broad democratic support for the notion that the judiciary is out of control, the state legislatures can amend the constitution to limit the judiciary’s power. It takes 3/4 of them, but constitutions aren’t usually considered documents that should be amended every 4 to 8 years. So is the system not already democratic, or is it just not democratic enough? Or are Americans just too stupid for democracy? But then what’s the solution?
(I don’t have any solutions; I’m just asking. )[/quote]
The theory is good. Appoint Supreme Court judges for life and require a 2/3rds majority of the Senate to remove them from the bench so they’re insulated from partisan politics. That only works though when it’s possible to find a minimum of five people who are able to rise above partisan politics themselves and confine themselves to judging and refrain from policy making because once they’re politically independent no one else can constrain them. Unfortunately though, in an era in which society is as highly polarized as it is today, insider factions have arisen which have perfected the art of championing political partisans for the bench and that judicial independence has become little more than a subterfuge behind which political activists hide while plying their sophistries about a “living Constitution” and the ends justify the means.
So is there a solution which will save such a highly polarized society and its independent judicial branch from themselves? Probably not because, as the old saying goes, you can’t make chicken salad out of chicken shit.
Legislation without representation is illegitimate though and no citizen has an obligation to obey such edicts, just as they didn’t 250 years ago.
If I’m reading all this right then, what you’re essentially saying is you want the system to remain exactly as it currently is, you just want judges to try to be more impartial? Basically, just be better at their job. I think we all wish that don’t we?
I’m claiming that an independent judiciary is only as good as the society which attempts it and anyone who claims that today’s Supreme Court is anything more than a partisan mosh pit is either delusional or lying.
Since self-restraint is the only thing keeping an independent judiciary from usurping policy making powers, once it strays as a matter of course it and its edicts lose their legitimacy and it’s little more than a politburo.
But in your future republic, who will judge whether or not a judge is usurping legislative power? A fourth branch of government? Or will the voters somehow be sure to elect only presidents who are somehow sure to appoint only non-usurping judges?
In the extant republic, if there’s broad democratic support for the notion that the judiciary is out of control, the state legislatures can amend the constitution to limit the judiciary’s power. It takes 3/4 of them, but constitutions aren’t usually considered documents that should be amended every 4 to 8 years. So is the system not already democratic, or is it just not democratic enough? Or are Americans just too stupid for democracy? But then what’s the solution?
(I don’t have any solutions; I’m just asking. )[/quote]
The theory is good. Appoint Supreme Court judges for life and require a 2/3rds majority of the Senate to remove them from the bench so they’re insulated from partisan politics. That only works though when it’s possible to find a minimum of five people who are able to rise above partisan politics themselves and confine themselves to judging and refrain from policy making because once they’re politically independent no one else can constrain them. Unfortunately though, in an era in which society is as highly polarized as it is today, insider factions have arisen which have perfected the art of championing political partisans for the bench and that judicial independence has become little more than a subterfuge behind which political activists hide while plying their sophistries about a “living Constitution” and the ends justify the means.
So is there a solution which will save such a highly polarized society and its independent judicial branch from themselves? Probably not because, as the old saying goes, you can’t make chicken salad out of chicken shit.
Legislation without representation is illegitimate though and no citizen has an obligation to obey such edicts, just as they didn’t 250 years ago.[/quote]
So legislation is legitimate if passed by the legislature (and not vetoed by the executive), but not if indirectly created by the judiciary, okay. I think reasonable people can agree or disagree about that.
However, how many times must a legislature refuse to rescind (one way or another) a piece of “judicial legislation” before you’ll recognize its legitimacy? If consecutive legislatures of different parties consistently refuse to revisit the issue, does that confer legitimacy on it, or do you still hold that it’s illegitimate? If a century passes, does that make a difference? If the legislature passes new legislation in harmony with the “judicial legislation”, what then?
It’s been almost 100 years since the living tree doctrine became clearly established in common law. It’s been more than 200 years since the USSC affirmed judicial review (as Scalia acknowledged). Sixteen constitutional amendments later, if the American electorate thinks the SC is hopelessly partisan and doesn’t want to keep electing presidents and senators who will continue stacking it, shouldn’t they (since you’re proposing a democratic solution) make waves for an amendment to increase judicial restraint or completely reconstitute the judiciary?
In other words does legislation without representation at some point become legislation by default? With a perennially dysfunctional legislative branch and an increasingly disaffected citizenry maybe muddling thru is the best that can be expected. As for acquiescing to the rise of politburocracy goes I’d have to say from my own experience that most people have no idea what’s going on because they have a limited grasp of both history and democracy. Those that do though, like Chris, are taking advantage of this ignorance by happily chipping away at democracy from the inside and supplanting it with defacto rule of the few. I don’t have to like it though or pretend that it’s not happening. And so it goes.
Isn’t the idea of representative democracy that you have representation in the legislature and the executive, which (in this case) select and confirm appointments to the judiciary? So if you think the judiciary is misbehaving, isn’t the representative democratic solution to seek recourse via your legislative representative and/or via the executive, and if they don’t satisfy you, aren’t you supposed to vote for someone you think will satisfy you? (And when your chosen representatives agree with the judiciary and legislate in harmony with centuries of common law precedent, do you still call that “legislation by default”?)
I’m not saying the system works, but you said you were proposing a democratic system to fix the problem of partisan judges (who keep getting appointed by the presidents and senators American voters keep electing). I’m still confused as to what your proposal is.
I think most Americans are tired of democracy and want to be ruled by either a right-wing strongman like Donald Trump or a left-wing politburocracy of the sort Chris champions. Those who value personal freedom and self-determination – and the responsibility they entail – are fewer and fewer. So there is a necessary element of popular capitulation to the rise of oligarchy/politburocracy and the demise of democracy without which none of this would be happening.
Under those circumstances I’m not really advocating anything because the American people have spoken. They’ll be happy feeling the Bern or being Trump’s chumps or Hillary’s harpies and repeating history verbatim in the process. I could care less – but not by much – because I won’t be living under any of those regimes.
I’m claiming that an independent judiciary is only as good as the society which attempts it and anyone who claims that today’s Supreme Court is anything more than a partisan mosh pit is either delusional or lying.
Since self-restraint is the only thing keeping an independent judiciary from usurping policy making powers, once it strays as a matter of course it and its edicts lose their legitimacy and it’s little more than a politburo.[/quote]
Honestly I think most people who follow judicial decisions agree with you that there is often a clearly partisan factor involved. At least for my part though I’m a little fuzzy on what exactly you are suggesting can be done about that. We already have a system that you grant “in theory” makes sense, and we already vote for our highest representatives.
Unless you’re actually proposing that we vote for Supreme Court justices now, I fail to see where the solution lies.
And then by extension, would you also like us to vote for the next Fed officials? They wield a lot of power as well. What about the next head of the FBI? The next head of the school board? How far does this democratic representation go?
I’m all for people doing their job better, but as for actual changes to the system, what are you suggesting?
How to achieve an independent judiciary and ensure it doesn’t use that independence to usurp policy making powers in the process? That’s a tough one, particularly in an age of hyperpartisanship. I’m not the only one who doesn’t have a ready answer to that conundrum though. America’s founders clearly didn’t either, as evidenced by the success “activists” have had in recent decades in exploiting that loophole to circumvent democracy. The best I can foresee is politburocracy will continue to grow like a cancer because there’s nothing now to check its growth. As its power grows over the coming decades it will grow more corrupt. One day, the American people will awaken and realize that they’e unwittingly condemned themselves to another historical wash/rinse/spin cycle and that democracy, however many its flaws, really is better than the alternatives.We can only hope that when that day comes Chris is willing to relinquish power and let the walls be torn down without too much bloodshed.
So in other words, you’re not proposing anything, except that judges should stop “circumventing democracy”. I guess I just don’t understand what those words mean to you. When the people vote for one wing, judges liked by that wing get appointed, and when the people vote for another wing, that wing’s judges get appointed. I can see what’s not good about that, but I can’t for the life of me see what’s not democratic about it…
…unless you mean the judges should be directly elected, in which case it’s up to the voters to decide how partisan the judges should be.
Meanwhile, the suggestion is circulating that Hillary is going to appoint Obama if Obama can’t appoint Sri… :roflmao:
I believe in the general principles of the US constitution and I think they got a lot of things right. The problem though is, the language is vague enough to preclude the possibility of any kind of universally accepted translation as to what it means for us in 2016. So unfortunately we all have to accept a certain amount of partisanship and personal beliefs of the judges bleeding into decisions. I just can’t see any other way that would improve on what’s already there.
I guess if I had to suggest any changes, perhaps capping the term to 20 years or so would help a bit. And maybe increasing age and race diversity more.
If the law is unclear or has gaps it’s not up to some unelected, unaccountable public official with lifetime tenure to “fix it” by creating law. That’s not judicial review. It’s legislation without representation, aka the “living Constitution.” That’s why there’s such an unseemly scrum every time a Supreme Court vacancy comes up. By a degenerative process, the Supreme Court has become the venue where America’s most important public policies are being made and everyone knows it, though the primary perps like to pretend that it’s not so.
The common sense approach to finding gaps or inadequacies in the law would be for judges to so note and send the law back to the legislature to be fixed in a way which reflects the will of the people, not the will of Chris and some handful of “activist” judges.
I’m not a lawyer but as far as I can tell, they don’t create any new laws when making rulings. They interpret the existing law as they see it which sometimes extends or reduces it’s previous scope. They are human though, so personal opinions and partisan prejudice naturally come into play.
Take gay marriage. When I read the constitution it seems as crystal clear as could be that it should be a no brainer right for all people of age to marry whoever they want, and they should have the exact same laws protecting that union with respect to taxes, estates, insurance, children, etc…
When they did rule slightly in favour, where did they “create” new law? Didn’t they just interpret the already existing language and extend rights beyond where they were before? Is that what you mean by creating new law?
What should they have done? Should they have said due to the 5-4 in favour ruling, we recommend the legislature re-write the clause to make it even more clear on the equal rights for gay couples part? Would that fly in America? Could we re-write the constitution to specifically say gay people have the right to marry and are granted the same legal status of marriage as straight couples?
I’d love it if that was the case, but somehow I don’t see people going for that. So we are left with the Supreme court ruling on such things aren’t we? And for better or worse, accepting their personal prejudices will bleed into certain rulings.
I wonder when exactly this mythical time of Wise Men calmly adjudicating issues impartially existed?
-At the time of Marbury v. Madison establishing judicial review in 1803, to which President Jefferson objected (having lost the case):
Worcester v Georgia in 1832, leading President Jackson (who, coincidentally, had also lost the case) to declare
[quote] “…the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate”[/quote] which made it into popular culture as “John Marshall has made his decision; now let hin enforce it.”
-Dred Scott; there was a fine and impartial decision, leaked to Buchanan so he could include it in his inauguration speech.
-The various decisions by the Supreme Court from the 1870s to the 1930s, where they held the 14th Amendment, specifically designed and enacted to prevent the states discriminating against newly-freed slaves, could not be used to prevent discrimination against Negroes, but could be used to strike down child labor laws and working hours and workplace safety laws, because corporations (but not black people ) are people, too.
In short, the Supreme Court has been political since its birth, and the same complaints have been made by those who don’t like its decisions for the last 200 years.
Hey, how do you feel about Citizens United or District of Columbia v. Heller ?
Judicial tyranny, overturning the decisions of elected legislators, or standing up for the 1st and 2nd Amendments against legislative tyranny?
[quote=“BrentGolf”]Take gay marriage. When I read the constitution it seems as crystal clear as could be that it should be a no brainer right for all people of age to marry whoever they want, and they should have the exact same laws protecting that union with respect to taxes, estates, insurance, children, etc…
When they did rule slightly in favour, where did they “create” new law? Didn’t they just interpret the already existing language and extend rights beyond where they were before? Is that what you mean by creating new law?[/quote]
What they did was overturn laws prohibiting gay marriage, based on the 14th Amendment’s guarantee of equal rights for all, thereby allowing gay marriage by default. No new law was created; the prohibitions were struck down.
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