The Supreme Court and Democratic Legitimacy

[integratedvelocity]

What do you think about having a nondemocratic institution as the final legal authority (outside of constitutional amendment)? Is it necessary?

The usual argument in favor of a supreme court is that it protects the rights of minority groups who would not be protected in a majoritarian system. It seems that people talk about "tyranny of the majority" rather often, but isn't "tyranny of the minority" equally as bad?

What do you see as the point at which the protection of liberties becomes legislation from the bench?

[Holiman]

I think you should really state your question more clearly to me it seem's your all over the place and your not even stating for which country this applies. Guessing that you mean the USA first statement you make isnt factually correct.

The USA isnt a Democracy at all, and the Supreme Court and its powers are specified in the Constitution but its best described by congress passing this act

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Now are you asking about how their appointed ?

Or are you asking about checks and balances upon their powers?

Or are you asking what should be the role of the supreme court?

Because to be honest this seems like a tidbit of some rant from Rush Limbaugh, while I do enjoy these rants you give no examples nor anything concrete I can even go on.

[thod]

There have been countries where they elected their generals. They got the heck kicked out of them. The person best at winning elections is not the best at winning battles. You do not elect generals, the talented officers will know which of them is most talented. The same is true in any specialized field. It doesn't matter if its mathematics or law, you are not qualified to know who is brilliant or mundane. If you elected dullards to the supreme court they would be unable to see the consequences of their actions and make bad decisions. Would you allow yourself to be operated on by an elected surgeon?

[Lycurgus]

There have been countries where they elected their generals. They got the heck kicked out of them. The person best at winning elections is not the best at winning battles. You do not elect generals, the talented officers will know which of them is most talented. The same is true in any specialized field. It doesn't matter if its mathematics or law, you are not qualified to know who is brilliant or mundane. If you elected dullards to the supreme court they would be unable to see the consequences of their actions and make bad decisions. Would you allow yourself to be operated on by an elected surgeon?Judges do not elect or appoint Judges, in the USA.


I think the Supreme court is a fantastic judicial body, and its presence is probably one of the few things, over the last two centuries, that has helped to keep America free from tyranny. There was talk of removing the actual independence of the court by FDR (see: The Switch in Time that Saved Nine (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.)), and I thank my lucky stars that it never happened.

I think that the Justices are some of the most powerful people in the United States, and that their legislation from the bench hasn't happened as of yet. It's one of the common complaints of people who disagree with the verdict of Roe V. Wade (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.). however it's typically an empty argument that doesn't amount to much more than "They made us change the law!" ... Well, no shit Sherlock, it's what they do.

A better, and more legitimate argument against Roe V. Wade is not one of morality, which the Christian and Conservative Right have made it out to be, but one of States Rights and Relative Sovereignty™. Take a peek at that pesky 10th Amendment for the best argument against Roe V. Wade I've heard.

But... I digress, without a better framing of the question in the OP, defining the context of the question, I'd have a very, very difficult time having a constrained discussion on the subject. I could probably type for days on the subject of the Supreme Court...

[integratedvelocity]

I suppose I should clarify a bit, based on the responses my post has received.
I only included the last question in my OP as a reference to a common argument against judicial review.

I am actually more or less in favor of the Supreme Court, so this is not meant to be a rant. But there are arguments against it, such as this work by Waldron. (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.)

In another piece by Waldron, he questions what the reaction would be if the queen in the UK were somehow able to dictate a law without the approval of the legislative branch, suggesting that such an action would be condemned as undemocratic and comparing it to the US system of judicial review. His main question is whether the end (more civil liberties, protection of minorities) justifies the less than democratic means. He argues that it doesn't and cites the UK as a democracy which has functioned well without a supreme court.

No, the US is not a democracy, if you are using the Athenian regime as your model, but according to most definitions within the political science field, it is, since it has free elections with full suffrage, protection for civil and political liberties, and you don't have to worry about being killed by your government.

So, overall, I'm asking about how you think judicial review meshes with democratic principles, such as equality, liberty, etc.

[Lycurgus]

The difference being, the queen is not an expert on law, nor is she appointed by the President of the United States (and confirmed by the elected Representatives of the United States).

His comparison is an inherently incorrect and obviously flawed one.

The US doesn't have the same system of government -- namely, we have separation of powers (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.) -- that the UK has, who has Parliamentary sovereignty (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.).

The Judiciary requires this power, to keep the Federal and State Governments in check.

[thod]

The government maintains that it has the right to pass any law it desires and to repeal anything it desires.

What is not told to juries is that they make the laws and not government. The jury will be mislead into believing that it only has to look at the facts of the case and return its verdict. This proven or not proven response pertains to the law allegedly broken. Yet most juries will respond with guilty or not guilty. This is a very different response. The facts can show that a law has been breached, yet they can still find not guilty. What they are doing is looking at the justice of the case and not the law. They are being asked if the man is guilty of any wrongdoing.

As an example, suppose the government introduced a law making it illegal to breath. They would like this, it would mean they could convict anyone they chose. Everyone is guilty under this law, but they get to choose who to prosecute. Looking at facts alone, they jury would be obliged to return a verdict of 'proven' and convict, he did breath after all. However they are free to return not guilty too. This means the court must free him regardless of what the government law says. I am trying to show the difference between what is just and what is legal, and how we determine that.

After numerous such cases, the law is clear, there is precedent, the government has been overruled by the people. The people say how they wish to live, what their laws will be and not the government. Governments hate this, they will always argue that they have the democratic mandate to do as they wish, even when the people are clearly ruling against them. Its why they dont tell juries that they can do this instead they say look only at the facts.

This is the difference between common law and civil law. The supreme court too is overruled by the decisions of the many juries of the people.

[Storm]

I'm still a little foggy on what your actual complaint against an appointed Supreme Court is. So I'll just tell you the logic behind why the Supreme Court of the US is run the way it is.
The Supreme Court's job, and only job, is to make sure the laws passed by Congress and the actions of the executive branch align with the Constitution. That's all they do. (ok, they do have some original jurisdiction, but it's very narrow and rarely used. They also interpret federal statute, but that's really beyond this post) Sometimes, Congress or the Executive branch do things which are popular but are against the Constitution. The Supreme Court doesn't have to worry about the what's popular (as much), and can comfortably interpret the Constitution without worry of being voted out. The saying goes "In order to protect the people, they must be insulated from the people."

This isn't to say that the Supreme Court is not beholden to the people at all. The Court has no armies, they have no power to back up what they say. All they have is respect for their position and their rulings. As Lycurgus has mentioned, if the Supreme Court gets too far from the populace, the other two branches can refuse to follow the order. This dynamic between the branches is why the Court is so picky on taking cases and puts lots of restrictions on what kinds of disputes it will hear and rules as narrowly as possible.





Storm added to this post, 10 minutes and 37 seconds later...

The government maintains that it has the right to pass any law it desires and to repeal anything it desires.

What is not told to juries is that they make the laws and not government. The jury will be mislead into believing that it only has to look at the facts of the case and return its verdict. This proven or not proven response pertains to the law allegedly broken. Yet most juries will respond with guilty or not guilty. This is a very different response. The facts can show that a law has been breached, yet they can still find not guilty. What they are doing is looking at the justice of the case and not the law. They are being asked if the man is guilty of any wrongdoing.

As an example, suppose the government introduced a law making it illegal to breath. They would like this, it would mean they could convict anyone they chose. Everyone is guilty under this law, but they get to choose who to prosecute. Looking at facts alone, they jury would be obliged to return a verdict of 'proven' and convict, he did breath after all. However they are free to return not guilty too. This means the court must free him regardless of what the government law says. I am trying to show the difference between what is just and what is legal, and how we determine that.

After numerous such cases, the law is clear, there is precedent, the government has been overruled by the people. The people say how they wish to live, what their laws will be and not the government. Governments hate this, they will always argue that they have the democratic mandate to do as they wish, even when the people are clearly ruling against them. Its why they don't tell juries that they can do this instead they say look only at the facts.

This is the difference between common law and civil law. The supreme court too is overruled by the decisions of the many juries of the people.

I'm sorry, but you have a poor understanding of what laws are allowed to passed (in the US at least, and I assume most other countries). Government can't pass a law like "no breathing" it would be struck down by the judiciary as against fundamental understandings how government should function (this is even stronger than a Constitution, it's so strong no one ever bothered to write it down). Laws can not be so broad that you can't help but violate them. They also require that a person has the ability to control their actions. I also fail to see why the government would "like" this kind of law. That means they'd have to feed, clothe, and shelter the entire populace.

Also, juries decide issue of fact not issues of law. In your case, if the jury decides that the person wasn't breathing, then as far as the law is concerned, the person wasn't. The jury has not interpreted the law in anyway. It's not some kind of conspiracy by the government to take power away from the people.

An example of the judiciary interpreting the law would be, in your example, what does breathing constitute? The judiciary could decide that by "breathing" it meant "screaming loudly" (exgeration to make the point.).

[maxpot46]

There was talk of removing the actual independence of the court by FDR (see: The Switch in Time that Saved Nine (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.)), and I thank my lucky stars that it never happened.I would argue that this happened unofficially, via the appointment of like-minded justices (i.e. judicial activists) by interventionist Presidents. FDR wasn't able to pack the court but they soon began acting as if he did, and they never stopped.

[Storm]

I would argue that this happened unofficially, via the appointment of like-minded justices (i.e. judicial activists) by interventionist Presidents. FDR wasn't able to pack the court but they soon began acting as if he did, and they never stopped.

....I'm not quite sure what point you are making here. What exactly was "judicial active" (a term I have come to understand often means "justices whose decisions I disagree with") about the justices at that time. Who were these "interventionist" Preisdents? FDR was an interventionist president if there ever was one. And what do you mean by "they never stopped." While FRD was in office? I'd agree with that. But I don't think the influence continues to today.

The "Switch in Time that Saved Nine" happened during the Great Depression. FDR and the Congress kept passing federal statutes that had sweeping powers. The Supreme Court was continuously shutting down these federal statues as conflicting with state sovereignity and Unconstitutional. FDR got mad. But FDR was much too clever to directly tell the judiciary what to do - that would make him look like a tyrant to the people. Instead, through his Fireside Chats he proposed to the public to set a retirement age of 70 for Supreme Court justices. If a justice refused to retire, then a another justice would be placed on the Court, up to a total of 15 justices. His stated reason for proposing this was to prevent old justices from serving. His real reason was to threaten the Supreme Court to change their position or he was going to pack the Court. After this threat, one of the justices switched his vote so that all those federal statutes could pass Constitutoinal muster. FDR dropped talking about adding more justices.

FDR heavily influenced the Court, but he didn't threaten to actually remove their independence. It's always been that the President and the Congress can subtly hint not to enforce rulings or appoint new justices, or more justices or less. FDR just exploited it a bit more. 15 justices wouldn't have taken away the Court's independence, just made each justice's opinion count for less. There would probably be a lot more opinions written on each case, making things very confusing and difficult.

[thod]

I'm sorry, but you have a poor understanding of what laws are allowed to passed (in the US at least, and I assume most other countries). Government can't pass a law like "no breathing" it would be struck down by the judiciary as against fundamental understandings how government should function (this is even stronger than a Constitution, it's so strong no one ever bothered to write it down). Laws can not be so broad that you can't help but violate them. They also require that a person has the ability to control their actions. I also fail to see why the government would "like" this kind of law. That means they'd have to feed, clothe, and shelter the entire populace.

I think I understand it very well. I am not in the US, I am in the UK. Parliament maintains it has the right to pass any law it wishes, the judiciary cannot object. I cannot see how they could in the US either, since they would need a constitutional argument, and the constitution can be changed by them too.

The mistake you make is to assume that everyone that is guilty of an offence has to prosecuted. The police can choose to prosecute some and turn a blind eye to others. Saying that the other guy does it too is no defence of your actions. Thus you can get whoever you want whenever you want.

Last week the UK passed a law to make it illegal to photograph policemen, that includes the press. The fact that in this police state, there are cameras on every corner photographing them does not mater. They wont take the cameras down because they say they don't mind them. If I was on a jury, I would acquit the press photographer for photographing the policeman beating his victim. He did offend, but I can see no wrongdoing in his actions. To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.

That you write that a jury may only rule on matters of fact shows you have been brainwashed into believing this. I can return a verdict of "proven, but not guilty". He did it, but he is not to be punished.

[Storm]

I think I understand it very well. I am not in the US, I am in the UK. Parliament maintains it has the right to pass any law it wishes, the judiciary cannot object. I cannot see how they could in the US either, since they would need a constitutional argument, and the constitution can be changed by them too.

The mistake you make is to assume that everyone that is guilty of an offence has to prosecuted. The police can choose to prosecute some and turn a blind eye to others. Saying that the other guy does it too is no defence of your actions. Thus you can get whoever you want whenever you want.

That you write that a jury may only rule on matters of fact shows you have been brainwashed into believing this. I can return a verdict of "proven, but not guilty". He did it, but he is not to be punished.

Actually, overly broad laws without a mens rea can't be done based on English Common law - the requirement of mens rea has been codified in most, if not all, state law. True, someone has to actually challenge a law in order for the judiciary to declare it invalid, this is called judicial review. That's US law, no idea what UK's stance on judicial review is.

Of course, any government can suddenly become tyrannical and disregard it's own rules, but I think that defeats the point of the argument.

I am perfectly aware that the government can chose whom to prosecute, that's why the mens rea requirement is there - to prevent such laws from being passed, or to allow them to be struck down if they are.

Finally, the brainwash argument. Never a good argument, it doesn't address the substance of my argument at all. In a legal case, there are issues of fact, and issues of law. Now, it's a tiny bit of a fiction, but they are considered absolutely separate. A jury is only asked "Did John Doe do X?" So, for instance in a "proven, but not guilty" verdict (which btw, I have never heard of this type of wording for a verdict before), the jury may have decided that , yes John Doe did do X. The Court gets to decide whether X is a violation of the law.

If you confuse these two concepts in your mind, you can easily come to believe that a person has violated the law but hasn't been punished, when in fact, all that's been proven is that a person has done X, but has not violated a law in that action.

EDIT: Forgot to add that Courts don't need statutes or the Constitution, they can rule based on common law.

[Lycurgus]

Thod, I'm going to need a cite, at least for American law.

In American Law, it's up to the Prosecutor to decide whether or not to prosecute.

[maxpot46]

....I'm not quite sure what point you are making here. What exactly was "judicial active" (a term I have come to understand often means "justices whose decisions I disagree with") about the justices at that time. Who were these "interventionist" Preisdents? FDR was an interventionist president if there ever was one. And what do you mean by "they never stopped." While FRD was in office? I'd agree with that. But I don't think the influence continues to today.All 20th century presidents were interventionists except Coolidge, the most egregious being Wilson, FDR and LBJ. And by "never stopped" I mean that judicial activism has become more and more prevalent. For example, pre-FDR it was understood that it required a Constitutional amendment to increase the powers of Congress, e.g. the 18th amendment to enact Prohibition. Now the court allows Congress and the President to exercise increased powers based on no more than distorted interpretations of Constitutional clauses, e.g. the commerce clause to justify the current drug prohibition.

[Storm]

The commerce clause has been expanded greatly - some would argue perhaps too greatly in some areas. But it's a rather complex area of law and any good discussion of it would require a thorough reading of Supreme Court cases and knowledge of the historical events leading to those changes (they are much greater than just FDR) But I don't have time to discuss it in this thread - although I am very fascinated by it. Just suffice it to say that the commerce clause has largely been expanded due to the increased need (or perceived need) for a more coherent national law, as opposed to lots of state laws.

As for your complaint that interpretations of the Constiuttion has changed over time. The Constitution of the United States is a living document. Most of it lists sweeping principles, such as "free speech" or "no unreasonable searches." The interpretations of these words change as times changes, but the underlying principle and intent remains. Thus is the beauty and strength, and at times, the weakness of the Constitution. To use a famous quote "The law must be stable, but it must not stand still."

[Lycurgus]

The Constitution of the United States is a living document.No. No it is not.

The constitution says exactly what it says. If you don't like it, there's a process for changing it, Amendments. That's the only method for changing the constitution. It is not a living document in that its meaning changes over time, it stays the same, just as judicial precedent, just as laws. Treating it any differently as an insane proposal brought up by those who would rather not have to drum up the support necessary to actually amend the document, because they would be unable to push their agenda through if they did.

[Storm]

I agree that Amendments are necessary for major changes. And I agree that intrepretations can go too far, or can be wrong. But, sometimes new things come up which no one thought about, and we need to interpret the words.

Do you really think that "free speech" is a cut and clear word that anyone who reads it would know exactly what it means in any given situation? There's a reason there are fierce debates over the topic.

[Lycurgus]

I agree that Amendments are necessary for major changes. And I agree that intrepretations can go too far, or can be wrong. But, sometimes new things come up which no one thought about, and we need to interpret the words.

Do you really think that "free speech" is a cut and clear word that anyone who reads it would know exactly what it means in any given situation? There's a reason there are fierce debates over the topic.Yes, yes I do.

However, my line of thought is quite in line with Rudy (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.)'s, in that respect.

[Storm]

Your views on free speech are irrelevant (as are mine). The point was the phrase does not have a clear meaning when applied to a given situation. If it did, we wouldn't need a Supreme Court to interpret it and people wouldn't fight tooth and nail over it.

[Lycurgus]

Your views on free speech are irrelevant (as are mine). The point was the phrase does not have a clear meaning when applied to a given situation. If it did, we wouldn't need a Supreme Court to interpret it and people wouldn't fight tooth and nail over it.You asked the question with no indication that it was rhetorical.

And, the fact we have a judiciary that interprets the Constitution -- or, more accurately, the constituionality of laws, the bolded part is often forgotten -- does not mean the constitution itself is a living document.

[Storm]

I think we have a different definition of "living document." I meant that words are interpreted in light of new advances. Interpreations of the constitutionality of laws requires interpretations of the Constitution. Each time, the Court uses precedent to help them assess a new situation - and sometimes that leads them to realize that previous interpretations were inaccurate in describing the words of the Constitution and they have to redefine their interpretation. I think we agree much more than you think.

[nacht]

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[Storm]

^Didn't realize the words were so loaded and had such a varied meaning. For what it's worth, I meant that the intent and principle of the words remains unchanged, but that interpretations can change to further flesh out that original intent.