Author Topic: The Role of the Supreme Court  (Read 1661 times)

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Online Chris Pook

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The Role of the Supreme Court
« on: June 29, 2018, 17:41:09 »
This arises from the current US discussion about the need to replace Justice Kennedy - but some of the concerns apply to our Americanized Supreme Court, although we have fewer Party issues.  On the other hand, law schools are law schools.

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That this is a terrible way to select a judiciary should be obvious to all, but the solution is less straightforward. Several proposals have been put forward in recent years, by liberals and conservatives alike, for making the confirmation process less gladiatorial. But that is a sticking plaster. Americans have to ask themselves a more fundamental question: What do they want from their Supreme Court? If the answer is a Kritarchy, a supreme parliament of nine that sits above the other two branches of government, then they will have to accept that each resignation from the Supreme Court has the potential to tip the balance of this judicial legislature in favour of the other side. They will also have to accept the strident, personal and poisonous confirmation process that comes with it.

If, however, they want a court rather than a monarchy chosen from the Harvard Alumni Association, they will have to accept responsibility for making those decisions which they have become content to let the Court handle. That means rehabilitating faith in democratic choice and respect for its outcomes, however dismaying they might be.

https://blogs.spectator.co.uk/2018/06/what-the-anthony-kennedy-backlash-says-about-trumps-critics/

Can people learn to live with their losses?  Or is every decision so fraught that revolution is the only recourse?
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Offline Brad Sallows

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Re: The Role of the Supreme Court
« Reply #1 on: June 29, 2018, 21:46:46 »
Most of it can be laid at the feet of people who want to change the world, and want it all to happen within their own lifetimes.  Also, the power and scope of governments almost invariably increase monotonically.  Controlling government grants security; not controlling government risks jeopardy.  If the "prize" is too big to risk letting anyone else have it, increasingly the ends will be seen to justify any means.

The US government is designed to encourage concensus and compromise, which tends to militate against big, sudden change.  The way around that is to (1) control the presidency in order to rule by executive order and agency-made rules; (2) control the courts in order to prevent the president's orders from being vacated and to legislate and re-interpret from the bench; and (3) control just enough of Congress to block it from interfering with (1) and (2).

The problem here is (2), but I am not sure that it is easy to prevent willing judges from legislating from the bench, and to return the USSC to the role of simply deciding whether or not something is constitutional (only taking away, never adding on).  Some of the articles I've read in the past couple of days claim that some people in law (whether practicing or academic) are openly committed to the practice of seeking a reasoning which supports a desired conclusion.
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Online Chris Pook

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Re: The Role of the Supreme Court
« Reply #2 on: June 30, 2018, 13:14:03 »
By and large I see things the same way Brad.

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Some of the articles I've read in the past couple of days claim that some people in law (whether practicing or academic) are openly committed to the practice of seeking a reasoning which supports a desired conclusion.

This comment reminds me of something I read, and have previously mentioned, in William Johnson's translation of Max and Monique Nemni's "Young Trudeau: 1919-1944"

In 1944 Trudeau, at the age of 25 and intending to go to Harvard, read Adam Smith's Wealth of Nations, after getting permission from his local bishop to read this prohibited book (Index Librorum Prohibitorum).

Trudeau: "Smith initiate's us in how to analyze the problems of society, he shows us how to grasp the interdependence of phenomena, he fashions a framework for sorting out the complexities of institutions and grasping the central issue."

Trudeau: "True this is English-style thinking and has not the compressed appearance of French thinking, where the principles are the hard diamonds."

Trudeau: "[According to Smith's empiricism:Edit] the system came after the study of the facts, and did not drive it. Moreover, Smith himself never claims to have attained the Absolute...."  (Italics in the original text).

Nemni and Nemni: "Implicitly, and perhaps without fully realizing it, Trudeau was contrasting Smith's empiricism, which took as a starting point concrete facts to end with a theoretical system, with the scholastic method of the Jesuits [who had been Trudeau's teachers and mentor:Edit], which took as its starting point a pre-established system postulated as True and Good because created by God, and with the facts made to fit in accordingly."

I highly recommend reading the Nemni book on Trudeau.  Not because I think Trudeau is exceptional, a matter of debate, but because I think Trudeau is an Everyman.  An Everyman in the sense that he stands in for a large portion of Western Society that saw their lives, their institutions and their world view upended by World War, and the triumph of liberal democracy, which they had been raised to see as the counter point to socialism and communism, while Church sponsored corporatism was the middle road or third way between the extremes.  I think it is a mindset that is prevalent in, but not restricted to, western Europe.

My sense is that many people, by training, nature, nurture, or inclination are "scholastics" seeking Platonic "hard diamonds".  They have difficulty reconciling the free-thinking, the liberal, mind-set that embraces a world of chaos and manages it pragmatically according the evidence of the moment.

It would not surprise me to find the "scholastics" over-represented at the bar, in the courts and in the civil service.  It concerns me that I think they are over-represented in parliaments and the press. 

Scholastics, in my opinion, are not confined to particular types of Catholics.  There are Presbyterian scholastics as well.  Anglican, Lutheran, Baptist.  Buddhist, Hindu or Muslim.  Atheist, Agnostic, Arian.  Gaian, Communist or Socialist.  Establishmentarians of every ilk they are driven by the need to seek order, perfection.

And the world escapes them.

A court is absolutely critical as a pragmatic referee in a chaotic world.  But, in my view, the court should never be supreme.  Because arguments never end.  All decisions are always "pro tem" because situations continually evolve.  I am comfortable with the old term High Court.  I am uncomfortable with the term Supreme Court because that smacks of Absolutism - of scholastic perfection.

Ideally, again in my view, the Court is present to rapidly resolve debates, for the moment, on the basis of existing law.  If the law of the day is inadequate to the issue being debated then the correct answer is to refer the issue back to parliament for a pragmatic and democratic (even popular) resolution that suits the tenor of the times.  And which can be reviewed by the next parliament after the public has had their say on their preferences.

« Last Edit: June 30, 2018, 13:18:52 by Chris Pook »
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Offline tomahawk6

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Re: The Role of the Supreme Court
« Reply #3 on: June 30, 2018, 16:42:01 »
Increasingly the democrats have been losing elections so they see an activist judiciary as a substitute. The travel ban issue was screwed up by Obama era judges.Trump did nothing different than Obama with executive orders. Now Trump has a chance to add another conservative to the bench.Oddly the left now wants to pack the court.This is somehow aganst the Constitution. Like our election with the electoral college they want to do away with that,but again they would have to change the system.I doubt they could get 51 states to go along.

Offline Brad Sallows

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Re: The Role of the Supreme Court
« Reply #4 on: June 30, 2018, 22:17:00 »
The "court packing" meme - if you mean the idea of expanding the number of justices - only popped up in the last couple of days, and I doubt it will attract people capable of thinking more than one move ahead.  A court expanded to 11 or 15 can subsequently be expanded to 15 or 27 or whatever.  The most interesting idea I read today is the suggestion that the Senate Republicans should introduce a bill to limit the USSC to 9 justices, and see where the voting records fall.  To pass a bill to increase the number of justices would probably require first removing the Senate filibuster on legislation.

> the Court is present to rapidly resolve debates...refer the issue back to parliament for a pragmatic and democratic (even popular) resolution

Pretty much my view.  Not sure that it is at all widely shared, especially among law school graduates.
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Offline tomahawk6

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Re: The Role of the Supreme Court
« Reply #5 on: July 01, 2018, 11:35:25 »
The Supreme Court is covered in the Constitution so better stick with 9 or else it would be unconstitutional.The real issue is abortion,the dem's are afraid a conservative Court would reverse Rowe v Wade.

Offline Brad Sallows

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Re: The Role of the Supreme Court
« Reply #6 on: July 01, 2018, 13:02:31 »
I must insist that the number of justices is determined by act of Congress, and is not prescribed by the Constitution at any fixed number.  Changing the number is not unconstitutional.
That which does not kill me has made a grave tactical error.

"It is a damned heavy blow; but whining don't help."

Despair is a sin.

Offline Blackadder1916

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Re: The Role of the Supreme Court
« Reply #7 on: July 01, 2018, 15:01:53 »
. . . .I doubt they could get 51 states to go along.

I think it would be impossible to get "51" states to agree to anything.
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Online Chris Pook

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Re: The Role of the Supreme Court
« Reply #8 on: July 01, 2018, 15:09:14 »
And that is no bad thing...

It should encourage 51 separate solutions.
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Offline tomahawk6

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Re: The Role of the Supreme Court
« Reply #9 on: July 11, 2018, 13:08:48 »
In the US context the Supreme Court acts as a check/balance on the other 2 branches of government.