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Supreme Court tenure vs. Democracy
Nocturne
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Registered User regular
The talk of abortion rulings always brings this up, and I don't know if we've recently had a thread about it.
The most recent abortion thread by Rygar started off saying "With the ideological makeup of the supreme court expected to outlast the current administration for quite some time..." which of course made me think "so where, exactly, does the supreme court fit in a meaningful democracy?
A Duke University law conference referred to the supreme court as a "gerontocracy" and it is definitely more similar to a monarchy than any sort of democracy. The people are appointed instead of voted on by the public, and they are practically THERE UNTIL THEY DIE. Along with them stays their views, no matter how outdated or biased.
The scariest part, though, is exactly how much power these few people hold, which is to say in my opinion quite a bit more than the legislative branch, in that they can make instantaneous changes in the law with fewer checks and balances, and fewer votes.
So my question for discussion is this: Does the Supreme Court, as it is now, belong in a democracy? You can switch that to "belong in the government of the United States" so as not to get in to some stupid "we're not a democracy blah blah republic blah representative" semantics argument.
Is there a way to reform the supreme court so that it actually serves as a legitimate system for appeal in our judiciary branch, as opposed to an overpowered (I had to) oligarchy.
I also mean that both theoretically and practically. Can it be reformed at a theoretical level to work better? Can it be reformed at all in any realistic (though not likely) sense, or what would have to be done for it to be reformed with the limitations we have over our government?
Personally, I hate the Supreme Court as it works today and wish it to burn to the ground. But that's just my opinion, which may be elaborated on as the discussion progresses.
The most recent abortion thread by Rygar started off saying "With the ideological makeup of the supreme court expected to outlast the current administration for quite some time..." which of course made me think "so where, exactly, does the supreme court fit in a meaningful democracy?
A Duke University law conference referred to the supreme court as a "gerontocracy" and it is definitely more similar to a monarchy than any sort of democracy. The people are appointed instead of voted on by the public, and they are practically THERE UNTIL THEY DIE. Along with them stays their views, no matter how outdated or biased.
The scariest part, though, is exactly how much power these few people hold, which is to say in my opinion quite a bit more than the legislative branch, in that they can make instantaneous changes in the law with fewer checks and balances, and fewer votes.
So my question for discussion is this: Does the Supreme Court, as it is now, belong in a democracy? You can switch that to "belong in the government of the United States" so as not to get in to some stupid "we're not a democracy blah blah republic blah representative" semantics argument.
Is there a way to reform the supreme court so that it actually serves as a legitimate system for appeal in our judiciary branch, as opposed to an overpowered (I had to) oligarchy.
I also mean that both theoretically and practically. Can it be reformed at a theoretical level to work better? Can it be reformed at all in any realistic (though not likely) sense, or what would have to be done for it to be reformed with the limitations we have over our government?
Personally, I hate the Supreme Court as it works today and wish it to burn to the ground. But that's just my opinion, which may be elaborated on as the discussion progresses.
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They are only overpowered if they are paladins.
Also, there is some process involved in nominating a justice. What I would like to see is reform in that area, so that nominees can't just say "Well I don't know" to every question or "It would depend on the case in front of me."
@Ege - I think you mean MS warriors
This is a very important point and one members of the public who are rather adamant about how great Democracy is normally dismiss.
Democracy is, in effect, just mob rule... especially in the US where there is a limitation on how long a specific President can be in power.. Politicians don't want to lose their jobs, so we get knee jerk laws and other situations that only happen to please the voters right now rather than taking long term ramifications into account.
This is why I support the House of Lords being hereditary in the UK, and although I'm not sure how the US system works, its important to have people in positions of power who do not need to worry about keeping their jobs if they piss Joe Average off.
I agree. Wouldn't it be cool if that aspect you describe could be, I don't know, the people of the country?
Unfortunately the supreme court is not that factor. Instead they are appointed by the whims of the administration, and are not subject to be changed by the voting people.
The Supreme Court is unlike the other branches of government in that it requires very specific expertise. A President or Senator can always higher staff to shore up their deficiences, but a SCOTUS Justice has to be well-versed in Constitutional Law and case precedent; there's no getting around it. Direct elections would ensure that Justices are chosen less for their knowledge and fairness and more for their political affiliations and ability to campaign.
I don't get complaints that it's not democratic, either. While not directly elected, SCOTUS is appointed by the elected representatives of the people, and thus has a reasonable claim to legitimacy.
As for the other concern, SCOTUS actually holds much less power than the legislature, as they can only strike down laws (but not make or amend them). And they can only strike down said laws in very specific instances, where they directly contradict the US Constitution. This power isn't just reasonable, it's vital to ensuring the Constitution functions. If there's no way to challenge the constitutionality of laws, the constitution means nothing.
I suppose there is an argument to be made for term limits, but it would have to be implemented carefully to avoid a bunch of Justices leaving at once and the court being stacked by whoever's in power.
No. The people of the country elected the administration on a whim. Why would you expect them to make their other decisions any less whim-like?
And the Supreme Court is changed very slowly. This Administration has gotten to appoint quite a few because they've been in power for so long.
I do not want old farts judging me, I want someone who can relate to me, who is in tune with current social beliefs.
Like it or not, the majority of people support things like abortion and euthanasia. Just because a couple of 80 year olds sitting in a room somewhere don't believe in it, doesn't mean it shouldn't happen.
Yeah I didn't necessarily mean that the supreme court should be able to be changed on a whim, I don't think I phrased that reply correctly.
It is a good thing to have it separated from the other branches in that regard, but I don't think it's a good thing to have it be the reflection of four administrations ago.
And this is why I'm asking this. I'm not saying new justices should be voted for every 4 years, but I think it's worse to have them appointed by an administration, not voted on, and then have them stay there indefinitely.
I haven't myself found a nice medium, which is why I'm asking this.
Edit: Okay, I've heard some very valid points on why they shouldn't necessarily be elected by the people, and I do agree it's important that knowledge of the law and constitution is required (I wish there were stricter educational requirements for all politicians, but that's another debate). I guess my real concern then is about the term limits, and while one administration stacking the judges if the terms expired quickly is bad, I think an administration somewhat stacking the judges for a very long amount of time is also bad.
The thing is, they aren't supposed to be deciding by what they believe in. They shouldn't be deciding by what you believe in, either. They should be deciding on the basis of what the Constitution says.
In this scenario, "old farts" can be a benefit, having a lifetime of experience with the law.
Of course, beliefs do come into play (otherwise there might never be any split decisions), but ideally this should be kept to a minimum. It's just as bad if the Court decides based on "popular beliefs" rather than their own; either way, they effectively become an unelected legislative body.
The whims of the people is what appoints the administration. I really don't see anything wrong with the administration appointing the judges, its fairly obvious what types of judges are going to be appointed anyway due to the views of the administration to begin with and what the senate and the house are composed of.
One thing that has always confused me is people's faith in America's voting population. People being swayed by smear ads, sound bites, and what candidates look like doesn't give me a whole lot of confidence in what they vote for as it means they have very little knowledge about what the candidates actually stand for and what they may or may not do during their term in office.
To use an example, say Jack Thompson (oh, Jack!) took a case regarding videogame violence to the Supreme Court. Being mostly elderly men, they've probably never played a videogame in their life. Why should they then get to pass judgement over them?
They shouldn't.
And just because people are older doesn't mean they're not going to be politically compatible with you, Dhalphir. Tech questions can be problematic, but issues of rights shouldn't be.
Why does it matter if they've played a video game or not? There's two sides to a case and the other side should do a decent job of explaining why Jack Thompson is bat shit loco, why video game violence shouldn't be banned or whatever else the case is about.
And you think what influences most politicians is ANY better than what influences the American people?
That's a side argument though. I want to stress that I'm NOT advocating democratic election of justices. I hope we can move on from that.
What I AM advocating is some level of reform, to the term or appointing process.
And in regards to the power of the Supreme Court, in so many cases they make more of a difference on the lives of the people than the legislative branch. I also think it's pretty lame to say "they can't make laws," because while from a technical standpoint they can't, in a realistic sense they do. They set precidents that have just as sweeping of an impact as laws, and these rulings tend to affect more meaningful subjects than most of the fluff that goes through congress. While yes it is technically their job to uphold the constitution rather than beliefs, it's really their job to interpret the constitution, which ultimately does come down to belief, not the letter of the constitution.
Um, it's been judges who have been saving games from the Jack Thompsons of the world. Not the Supreme Court, but Federal Appellate Courts, which are also lifetime appointments.
It's elected officials who are in the Thompson anti-gaming camp. They're the ones who draft, pass, and sign anti-gaming measures. Judges with lifetime appointments aren't the problem with gaming - they're the last freaking line of defense against Thompson.
I'm not so pleased about it now. I just hope that poor Stevens can hold on another year.
I heard an NPR story about how O'Connor thinks that Alito is a reptile (like, she was pissed at a lot of his rulings that got handed up and wrote her most impassioned opinions in breaks from his rulings) and only retired because Rehnquist told her that he was staying until Bush left office. Apparently she was a bog Bush booster until he actually took office and her regard for him basically ebbed into strong negative territory by the time she retired.
Anyhow, she was furious that Alito took over her seat, and then of course Rehnquist died.
Actually, the Supremes have support staff too - and the clerks actually do most of the research, and sometimes, the writing too.
I still blame the democrats for not keeping Alito out of the Supreme Court.
Bring up Doe v. Groody and he would have done for.
edit: And i don't mean bring it up in passing you hammer home the point about him saying a strip search of a minor is constitutional and he's gone.
There may be more republican appointed justices right now, but after eight years of Hilary there will likely be more democrat appointees.
If you ever need to talk to someone, feel free to message me. Yes, that includes you.
Only if Scalia, Thomas, or Alito croak. Kennedy is kind of a swinger even though he's more conservative, so meh. The more 'liberal' wing of the court is the one that's more likely to need replacement so it'll just keep the relative balance that's been there for awhile now.
You know that only two of the current justices were appointed by Democrats, right?
Well, you could pull an FDR and try to stack the court with Democrat judges by increasing the maximum number.
But what he just did was move them into their own building. I think they should be moved back to their original location.
Thee different countries and how they appoint their SC/final court
1) New Zealand - Five Judge Supreme Court appointed by small commission headed by the A-G. Which essentially makes it the gift of the government, as the AG is an MP member of the cabinet. Once appointed the justices can stay till retirement (75) iirc. This court isn't anywhere near as important as the following examples, or indeed the USSC - as it does not have anywhere near the powers of any of these courts and is still very new (2003) and learning its role.
2) South Africa - Constitutional Court appointed by Judicial Commission made up of 11 members - 4 directly appointed by the President (elected role) then the remaining members are appointed by the National Assembly (Parliament). Because the party of the President, Thabo Mbeki holds a supermajority (2/3s of NA) in the NA he effectively can chose all the JC members and therefore the CC members. Each Justice has a single 12 year term and retirement age is 70. The J.C must nominate candidates according to three criteria set out in the constitution - race, ethnic balance and experience - Note that South Africa has a deliberate policy of affirmative action to redress imbalances caused by Apartheid.
3) Germany - The members are appointed by the two chambers of the Federal Parliament in Berlin . Election is by qualified majority of two thirds of the members of parliament, with each chamber appointing half of the members. The term of office is twelve years, which is not renewable. This means that in practice the positions are divided amongst the parties, as many such roles are in Germany - this is a factor of their system and not necessarily a bad one.
On to the first point -
There are two main philosophies (that dominate the world) when it comes to courts and constitutions - the US/Anglo unified Supreme Court, and the newer Austrian style specialised Constitutional Court.
Put simply the US and other countries like say Canada and Australia have one highest court which has jurisdiction over both constitutional matters and the traditional final appeals for other matters. It is the final court for everything and tends to be the system of choice for countries that were settled/occupied by Britain for long periods. South Africa and Ireland I think are the only two common law countries that have an Austrian or hybrid Austrian/Anglo model.
The Austrian method, developed after WW1 by a German called Kelsen creates a specialised final Constitutional Court that is (usually/in theory) confined to constitutional matters - and there is often a different court/set of judges that deal with all other matters at the highest level. This model is rather common, perhaps just for the reason that a huge number of new constitutions have been written in the last 70 years, and this system has been designed in that period too. Fashion maybe?
Other things that are sorta relevant
Then of course there is the question of constitutional scope - what does your constitution cover? Just adjuticating between the various organs of government, or does your country have a constitutional Bill of Rights? Can you directly petition the final court, or do you have to find a cause of action and launch a case at a lower level?
Then there is the matter of how easy your constitution is to amend - has it been amended often? Who is the primary change agent of constitutional change - the final court or the amendment procedures? Is it the former because the latter is too much hard work?
it doesn't but limiting them to one term still prevents them from their rulings from being influenced by a desire to continue their career.
Their appointment would still be political influenced, but I don't see anyway to prevent that.
Or retire. There's also the tendency of the justices to try to wait until the party that appointed them is in power which would help to keep the status quo. However, things like death and illness can be unpredictable. It's just my guess that the makeup of the supreme court will be more balanced in eight years than it is now.
Since I'm on the topic, I don't think that a SCOTUS justice is a pawn for a particular party, but rather that each party will try to pick a well qualified (usually) candidate whose rulings falls in line with the views of that party/administration.
If you ever need to talk to someone, feel free to message me. Yes, that includes you.
Yeah but you still run the risk of a court totally changing if they al/mostl fall due near the same time. That isn't necessarily likely to happen, but it can - South Africa has got itself a similar situation
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I was unaware of that in the US.
But I live in Australia. and euthanasia is banned Australia-wide. And our High Court is essentially the same thing.
I hesitate to condemn entire branches and systems of government because of individual actions taken by those branches or systems. If that were the case, we would be forced to call democracy in America a failure because of the Articles of Confederation.