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US Supreme court a court or a political body ?

Discussion in 'Off-Topic' started by otago, Mar 30, 2012.

  1. timtofly

    timtofly One Day

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    It was supposed to do that. Now it is a tool to legislate. It does so by hearing rulings of lower courts that totally bypass the legislative process.
     
  2. uppi

    uppi Warlord

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    That would be the case if the system Civil Law. In Common Law, the courts are acknowledged to be a source of law and thus have (to an extent) legislative powers.

    That is not something that has deteriorated over time, but was built in from the beginning.
     
  3. Camikaze

    Camikaze Administrator Administrator

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    Lawmaking powers aren't the same as legislative powers. Courts are lawmaking, but not legislative.
     
  4. uppi

    uppi Warlord

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    "Lawmaking" is the translation of "legislative", so I don't see a difference between those words. But let's not squabble over definitions, I can easily reformulate the argument: The Supreme Court is lawmaking and lawmaking is a political process.
     
  5. timtofly

    timtofly One Day

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    Only partially true. It is supposed to take on appeals from lower courts. Not make blanket laws (mandates) for the whole country that have gone the route of local judges, instead of the legislative process. It is a way to circumnavigate a social "law" without going through the long process of the Congress. In fact it sidesteps the will of the majority for the will of a minority.
     
  6. GhostWriter16

    GhostWriter16 Chieftain

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    There are legitimate differences in opinion on how the Constitution is supposed to be interpreted, but the reality is that the Constitution is the document that SCOUTS is supposed to use when reviewing constitutionality. Yes, the way they view the constitution may have a left-wing or right-wing bias, and this is OK. Yes, they should rule on what the constitution says even if they don't agree with what it says. No, they don't do this.

    Courts interpret laws (In America, anyway) and decide based on the constitution whether said laws are constitutional (Though they did give themselves that power in 1804, its not actually in the constitution.) Courts do not, however, make laws.
     
  7. Theige

    Theige American Baron

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    The Supreme Court is better than any "Commonwealth" court
     
  8. Antilogic

    Antilogic --

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    Amongst the other objections listed above, this would also require the Constitution to legally recognize the two major parties (which it doesn't) and presents problems as well--what about third parties, or what would have happened a century or more ago when there was significant turnover in the party structure?

    Camikaze is right on this one. What GW described is referred to as statutory law; however, common law as practiced by the courts is not directly legislated, nor are the decisions they make in torts or product liabilities, etc. Administrative agencies in the executive branch are another example of non-legislative lawmakers--their statutory mandates often specify a broad goal, and they have the discretion to make laws (so long as they follow the APA) to accomplish that.
     
  9. Ayatollah So

    Ayatollah So the spoof'll set you free

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    I've said it before, so why not again. Any cases that have clear-cut text-based answers specifically written into the Constitution, have already been settled long before reaching the Supreme Court. Such cases as make it to the SC have much more wiggle room. The wiggle room can provide places for political bias to sneak in and get tissue-thin rationalizations draped on top. More optimistically, the textual gaps are filled by the Justices' sense of what the American nation is supposed to be and what its Constitution was meant to do. Which is still highly political, but in a potentially kinder gentler way. Potentially, but not necessarily, because some visions of the American Constitution are just plain ugly (IMHO, YMMV).
     
  10. otago

    otago Chieftain

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    LOL. one would not find the English law lords finding for their political candidate, because the Law Lords in the Lords sit on the cross benches, ie are/were independent of any political party.
    The US Supreme court does not make laws some are saying, so how would they explain busing if it was not making law ?
    And yes looking at it now if Gore had had a majority on the Supreme court they would have found for him.
     
  11. Camikaze

    Camikaze Administrator Administrator

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    Moderator Action: I've moved this thread to Civilium- though it isn't a great OP, it's perfectly fine for this forum.
     
  12. Leoreth

    Leoreth 心の怪盗団 Moderator

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    Legally recognizing parties in the constitution is of course a bad idea, but not inherently necessary.

    This could also be accomplished by requiring a sufficiently large majority in whatever chamber of Congress confirms judges, which is unlikely to be held by just one party, making compromise necessary without formally demanding that Reps and Dems have to agree on every candidate.
     
  13. Serutan

    Serutan Eatibus Anythingibus

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    Actually US political system i.e. the Constitution is wholly based on the
    notion of compromise. The reason that the system is breaking down is that the current generation of politicians (both parties) refuse to compromise. The last time the system got into this state was in the late 1850s and we all know what wound
    up happening then...

    @the British posters - It seems to me that the American federal court system is
    independent in that its rulings cannot be overruled by Congress. It is my understanding that Parliament can overturn a court ruling, which to my way of thinking
    limits the independence of the courts albiet in a different way.
     
  14. warpus

    warpus In pork I trust

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    IIRC the Canadian Supreme Court is known for being politically (left vs right) unbiased

    How we accomplished this I have no idea, as I know nothing about courts, except for night court
     
  15. Traitorfish

    Traitorfish The Tighnahulish Kid

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    Presumably Canadian governments are too polite to appoint partisan judges.
     
  16. otago

    otago Chieftain

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    Commonwealth posters :D Yes Parliament is supreme because the UK ,Aus, Canada, NZ are democracies, IE one man one vote of equal value, the will of the people etc etc etc.
    But I noticed FDR managed to have a conservative judge change his mind by a threat to increase the number of judges on the supreme court, so the independence of the US supreme court is not absolute.
     
  17. Traitorfish

    Traitorfish The Tighnahulish Kid

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    Except the bit were only the number of votes needed to achieve a plurality actually count for anything.
     
  18. .Shane.

    .Shane. Take it like a voter Retired Moderator

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    Um... how would you make it more independent?

    One branch nominates. Another branch approves. Then they exist in a 3rd branch, unbeholden to the other two.

    I get that in some states they vote on judges (which I think sucks), but I think the way the SC is constructed is pretty good.

    The real problem is that the Senate approval process has become extremely political.

    The only thing I might change would be to make it a 1-time term of say, 20 years. So, once on the bench, you can serve for 20 (or 25) years, tops.
     
  19. rollo1066

    rollo1066 Chieftain

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    The SCOTUS is a court which has some aspects of a political body since cases are decided by majority vote. However it only gets to rule on actual lawsuits with real parties rather than issue advisory opinions whenever its members want.

    It has a lot more control over which cases it will decide than most courts do and this could be considered a political function. For everyone who gets their case heard by the SCOTUS a whole lot of litigants get turned down usually without any explaination why.
     
  20. GenMarshall

    GenMarshall Ghost Agent

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    I always thought the US Supreme court is just the highest tier of the court system. The only time I've seen it panted as a political body is if someone labels one of the judges a liberal or a conservative.
     

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