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US Supreme court a court or a political body ?

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

  1. Flying Pig

    Flying Pig Utrinque Paratus Moderator

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    Once you get to that level, there simply isn't a right/wrong answer to most of the problems - if there was, another judge further down the food chain would have pointed it out. The Supreme Court has to determine whether legislation is in line with the Constitution, which includes 'the spirit of the constitution' (hold for a minute your cries of 'intentional fallacy!') - interpretations of that will always be tinged by ideology, and, whichever way they call, they'll be able to find a solid argument for it. That's why the cases are there in the first place.
     
  2. BasketCase

    BasketCase Username sez it all

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    How does the UK go about getting independent judiciaries? After all, every court system comes down to the same thing: a person. In the UK or the US, a judge is still a person whose mind is vulnerable to political biases.
     
  3. Arwon

    Arwon

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    It's a matter of degrees. The US Supreme Court appears to be completely and shamelessly partisan. In Australia at least, our High Court doesn't have that characteristic and just isn't a politically controversial body. Even the Mabo decision which rejected terra nullius isn't really viewed through a partisan lens in terms of "oh a Labor appointed court created aboriginal land rights" or whatever.

    I'm not sure what the precise difference is, because the broad outline of the two courts is the same - appointed til the age of 70 by the government of the day from among the highest levels of the legal profession.

    Perhaps it's the much quieter and lower profile appointment process in this country. Perhaps it's the nature of the constitution they interpret (no Bill of Rights). Perhaps it's simply not possible to have the degree of hyper-partisanship the US has because of the nature of the party system and party affiliations.

    My belief, though, is that it's an extension of the much higher degree of non-partisanship and impartiality in senior public offices in Australia compared to the US. Similarly to the High Court, the Reserve Bank and the Electoral Commission are also unquestionably independent and non-partisan. Such institutions are simply not politically controversial like the Federal Reserve or the guys who run elections in the US often are.
     
  4. Arwon

    Arwon

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    There we go, I asked law friends on Facebook why we manage to have a much less partisan and political High Court. Generally they think it's because of the lack of a constitutional bill of rights reducing the scope of courts to make "political" decisions, mixed with a strong element of Australian political culture:

    Some responses:

     
  5. Cutlass

    Cutlass The Man Who Wasn't There.

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    There have been a lot of efforts to politicize the courts. Surprise, it worked.
     
  6. kochman

    kochman Chieftain

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    Hasn't it always been politicized? In some respect?
    Even back, pre-Civil War... antebellum America... the litmus test was slavery.

    Unfortunately, now the litmus test is an issue that was already decided.
     
  7. ParkCungHee

    ParkCungHee Chieftain

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    I think it's also the partisan nature of the U.S. media distorting the actual content of most Supreme Court rulings. The rulings that enter in to public consciousness are ones on issues that are politically controversial. 40 something years later, Roe vs. Wade is still the most recognizable Supreme Court decision, while stuff like, New Jersey v Delaware is completely unreported.
     
  8. MagisterCultuum

    MagisterCultuum Great Sage

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    The Judicial branch of the US government has been highly politicized since 1800, when the Democratic-Republicans won landslide victories in their elections against the Federalists. The Federalists decided to pack the courts with their supporters while they could, before their terms ran out.

    John Marshall made matters worse by establishing the doctrine of judicial review in Marbury vs Madison. He usurped a power not granted in the constitution in order to overturn a law granting his court powers beyond the floor set in article iii of the constitution. His argument really makes no sense if you read the original text. Not only did the constitution explicitly grant congress the right to make changes as to where the Supreme Court has original or appellate jurisdiction, but the case in question did involve public ministers.

     
  9. Ceoladir

    Ceoladir Come Fly With Me

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    It's a politicized court body. I believe that it's because of the appointment of the justices by the Congress, and the fact that decisions are final.
     
  10. Camikaze

    Camikaze Administrator Administrator

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    I'm not sure that you contend that judicial review is the source of politicisation (though perhaps it is in combination with the Bill of Rights). I'm also not really sure how you can contend it's a bad thing? Though the UK has stricter parliamentary sovereignty, for the Australian Constitution, Marbury v Madison is considered axiomatic. And yet neither the UK nor here have a politicised judiciary. So it seems more likely that it's not a matter of the courts having the ability to strike down legislation, but a matter of what they're interpreting, that causes politicisation.

    Interesting argument against a constitutional Bill of Rights, too.

    And I still think there's something in the fact that you elect judges. That makes the system inherently political. If judges have had to advance their careers through their identification as a Democrat or Republican, it's little wonder those at the top of the chain are partisan.
     
  11. Cutlass

    Cutlass The Man Who Wasn't There.

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    Sometime yes, sometimes no. But much of the Court's history justices were not nominated based on what they could expect to vote on specific issues, but rather if they had an overall legal philosophy that the president agreed with. And quite often once on the bench the justice would not vote on decisions as they were expected to do. That's how some of the notable "liberals" were nominated by conservative presidents.

    However, there have been times when presidents have only nominated justices that would narrowly vote along partisan lines. And that's when the worst of the Court has taken place.
     
  12. otago

    otago Chieftain

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    OK then, if there had been five Democrat appointed Judges on the court for the Gore vs Bush tiff how could the outcome be different ?
    A complete Florida recount ?

    Another election for Florida not using those hanging chad making machines ?
     
  13. .Shane.

    .Shane. Take it like a voter Retired Moderator

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    I think the word you (and others) are looking for is partisan.

    By definition it is a political entity.

    That said, you bring up a really good point. My gut and training tells me that the SC has likely always had a halo of partisanship one way or another around it. The Dred Scott case (as you are indirectly referring to) and that courts of that era were unequivocably pro-slavery. Primarily because the South, in spite of its small population, was able to dominate the executive brance and Senate.

    If go back to the Marshall court, you might be able to make an argument it was partisan in favor of itself. It did largely also support a Hamiltonian, broad-interpretation, view (speaking very generally).

    Now you've got me wondering if there's any top flight reads on SCOTUS history, ante bellum.
     
  14. Patroklos

    Patroklos Chieftain

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    There is nothing partisan about voting along legal reasoning everyone knew you hasd before you become a judge. Partisan would be reversing yourself to appease a particular goal. Very few do this. Their predictability is actually a sign of non partisanship.
     
  15. Arwon

    Arwon

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    OK, now tell us what the word partisan means to you?

    Edit: Oh wait, gotcha. Seems a pretty periphery argument, though, when they're selected along such partisan lines to conform to a certain view of politics.
     
  16. otago

    otago Chieftain

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    Could you explain the legal reasoning behind the Dred vs Scott decision ?
    I see partisanship in favour of slavery but little legal reasoning when it came to the all men are born equal.
    If slaves were not men why were they classed as two thirds of a white man for voting purposes in the South ?
     
  17. Cutlass

    Cutlass The Man Who Wasn't There.

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    There was no legal reasoning behind Heller. And none behind Citizen's United. They had to reject all legal principles to make those decisions.
     
  18. MagisterCultuum

    MagisterCultuum Great Sage

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    Well, I am glad that there is some way to declare unconstitutional laws null and void, but I wish the method was clearly stated in the constitution. I'd prefer if there were more ways to repeal laws, including national initiatives and acts my a majority of state legislatures. (At the very least a 3/4 majority of states should be able to repeal laws, as they can amend the constitution itself. Although it has never happened, if 2/3s of the states agree they can bypass congress entirely and have a convention to decide on the constitutional amendment to ratify.)


    The main reason Marbury vs Madison irritates me is because the particular ruling of that case makes no sense. Congress is explicitly given the authority to change where the Supreme Court has jurisdiction (from the clause "with such Exceptions, and under such Regulations as the Congress shall make"), so there was nothing Unconstitutional about Judiciary Act of 1789. Furthermore, the case actually met the qualifications for original jurisdiction set in the Constitution anyway, since public officials were involved. Justice Marshall also had no business ruling in the case and should have recused himself on the grounds that he himself was the Secretary of State in the outgoing administration and the official who failed in his duty to deliver the commissions was his own brother James Marshall.
     
  19. Flying Pig

    Flying Pig Utrinque Paratus Moderator

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    I agree with this actually. A 'partisan' judge would (to caricature) write down a legal argument and then vote in favour of the Republican platform regardless of what it said- that's very different from a Republican, non-partisan judge, who would write down a legal argument (which may be influenced by his Republican views) and then do exactly what he had written. Perhaps the effects are in many cases similar, but clearly one is infinitely preferable to the other
     
  20. duckstab

    duckstab Child of Noble Family

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    Well, except that's kind of what happens now. The current US Senate has 100 members. A simple majority is required to confirm the President's nominee, but under current Senate rules, you pretty much need consent from 60 Senators to get that up-or-down vote to happen. Rarely in recent history has one party had such a supermajority, so you almost always need to convince a handful of Senators from the minority party to come along.

    It's also the case that the party blocs in the Senate are anything but monolithic. Senators have 6-year terms, are elected statewide, and tend to wield a lot more individual influence. Some of these folks have served for over 30 years. They don't bend to every whim of their party leadership to the same degree that Representatives do on most issues.

    Bottom line is, most Senators still seem to feel that, by default, the President's nominees should be approved unless they're glaringly unacceptable. So the court makeup tends to be a reflection of the recent occupants of the White House more than anything else.
     

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