US Supreme court a court or a political body ?

[Cutlass]

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

That's not really what is happening though. What is happening, exemplified by the cases of Heller and Citizen's United, is that the Republicans are deciding on an outcome, and then ignoring everything to reach that outcome. They ignore all precedent, they ignore statute, they ignore the letter and the spirit of the Constitution. They instead grab pieces of legal reasoning from anywhere necessary for making their case.

 

[Patroklos]

The reply above exposes most of where the partisain accusations are coming from. It has nothing to do with the decsisions themselves, but rather people defining anything they don't like as partisain.

Nothing about either the Citizen's United or Heller case conflicted with previously demonstrated opinions of the judges in question, it was actually quite predictable. Again, predictability in applyin the law is the exact opposite or partisain. Just like it is predictable which judges will vote "Democrat" as well.

And contrary to Cutlass's claim, there was legal reasoning behind both Citizen's United and Heller. They are right there summarized in the majority opinion. Again, "I don't agree with it" /= partisain.

I am curious Cutlass, what evidence to you have of communiques between Republican lawmakers and the justicies who carried those two cases? How about the judges that have been appointed for multiple decades? How did the current crop of Republicans influnce these untouchable judges with life termsn accountable to nobody?

 

[Quackers]

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

Does the Canadian Supreme Court have to ratify every new law? I believe that is the case in the US.

 

[Patroklos]

It is not the case in he US, the vast majority of laws are not involved in cases the SC hears. Laws have to be part of a legal challenge, filter through the lower courts, then be dealer worthy of elevation to the Supreme Court to get any consideration.

 

[downtown]

I don't think Citizens United is a great case to demonstrate that the Court is a partisan body (I agree, given what we know about their judicial philosophy, that result could have been predicted). I think Bush v Gore is a much better example.

 

[Farm Boy]

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.

100 times this. I too, would like to put on rose-colored glasses and speak wistfully of the great, impartial, and apolitical courts of a bygone era. I do not think they existed.

The appointment process for SCOTUS judges does not seem to me be designed to remove politics entirely from the system, it merely seems designed to insulate the court from rapid change. Hence the length of appointment. At least in theory of the House of Representatives is supposed to be the government body most reactive to public sentiment with terms of 2 years, hence it's relative control over the "immediate" issue of the budget. The Senate is supposed to be slightly less accountable to fluctuations in opinion with an election cycle of 6 years, so it gets more relative power in decision making regarding foreign policy(some stability is needed!).

The court, while ultimately still a political beast due its appointment process, is intended to be the most insulated from momentary fluctuations in public sentiment. Popular elections or easier recall mechanics for SCOTUS justices would entirely defeat the point. Reinterpreting large swaths of legal history on a regular basis is incredibly disruptive.

I withhold any personal opinion on the current denizens of high court.

 

[Cutlass]

I don't think Citizens United is a great case to demonstrate that the Court is a partisan body (I agree, given what we know about their judicial philosophy, that result could have been predicted). I think Bush v Gore is a much better example.

The point is that there is no legal foundation for Citizen's United. It really comes out of right field with no evolution towards it. And the reasoning is bizarre at best. How do you come up with such an insane ruling if not for politics?

 

[Quackers]

It is not the case in he US, the vast majority of laws are not involved in cases the SC hears. Laws have to be part of a legal challenge, filter through the lower courts, then be dealer worthy of elevation to the Supreme Court to get any consideration.

Ahh I didn't know this.

I imagine contentious bills are frequently challenged on the grounds they are unconstituitional then? Enter the political polarisation?

 

[Camikaze]

Nothing about either the Citizen's United or Heller case conflicted with previously demonstrated opinions of the judges in question, it was actually quite predictable. Again, predictability in applyin the law is the exact opposite or partisain. Just like it is predictable which judges will vote "Democrat" as well.

Now I'm not saying those two cases are examples of partisanship (because I don't know much about them), but legal predictability is not meant to derive from knowing the judges' opinions, but from knowing previous judgments. You seem to be suggested that if someone is predictably partisan and you're well aware that their opinion is at odds with precedent, that's okay. But a decision should only be consistent with previously demonstrated opinions of the judges when those opinions are consistent with previous judgments.

One thing of importance perhaps is that the Supreme Court is not bound by precedent in the same way that other courts are. They actually have room to move. That allows them to make more partisan decisions.

 

[otago]

One big difference between the systems is that unlike Congress Parliament is sovereign in the UK, NZ etc etc.
We have a pure Democratic parliamentary system with the use of MMP, all votes are of equal value by the voters, Australia much the same but they use STV .

Congress is NOT sovereign in the US, the wishes of the voters representatives can be turned over at will by nine appointed Judges.

Is the USA a democracy as we would know it ? the will of the people etc ?

 

[Farm Boy]

Congress is NOT sovereign in the US, the wishes of the voters representatives can be turned over at will by nine appointed Judges.

Is the USA a democracy as we would know it ? the will of the people etc ?

It's not a democracy in the strict sense, no. It's a republic.

Also, the SCOTUS is not absolute. The voters' representatives can impeach and remove justices just the same as they can the president. They can also amend the Constitution. That way you can involve the voters' representatives in state legislatures as well! All it requires is a large enough majority.

 

[Traitorfish]

It's not a democracy in the strict sense, no. It's a republic.

What distinction are you making between the two?

 

[Dachs]

What distinction are you making between the two?

The asinine Federalist Papers distinction, same as most Americans.

 

[Flying Pig]

What distinction are you making between the two?

In a 'proper' democracy, all the people would vote before any decision was made - think Athens in about 490 BC. In a representative democracy - a republic - the people elect representatives, and thereafter these representatives make the decisions: the people don't even have the power of veto; all they can do is elect another government in the next General Election which will repeal the legislation.

 

[Traitorfish]

In a 'proper' democracy, all the people would vote before any decision was made - think Athens in about 490 BC. In a representative democracy - a republic - the people elect representatives, and thereafter these representatives make the decisions: the people don't even have the power of veto; all they can do is elect another government in the next General Election which will repeal the legislation.

That only suggests that a republic is defined as a particular type of democratic government, not that it is defined as something distinct from a democracy, as Farm Boy claimed.

 

[Farm Boy]

Thanks Dachs, productive! Incorrect though.

That only suggests that a republic is defined as a particular type of democratic government, not that it is defined as something distinct from a democracy, as Farm Boy claimed.

A republic, while largely democratic, is indeed distinct from a democracy. How a government is structured has everything to do with how responsive it is to "the will of the people." If you want to have a meaningful discussion about that structure the terminology is helpful.

If you want a government that is as responsive to its voting citizens as possible, you have an actual democracy. The type Flying Pig mentioned. Obviously, there are problems trying to make this work large scale, plus, it is not necessarily always desirable. A US's version of a federal republic is a different way of structuring the government that is somewhat less democratic and somewhat more stable. A parliamentary government UK-style is more democratic than that in some ways, and less in others.

 

[Traitorfish]

So when you say "democracy", you mean a direct democracy, and when you say "republic", you mean an indirect democracy? That seems a little arbitrary. Why not just call them both "democracy", and distinguish between degrees of directness?

(Also, isn't that basically what Dachs said? Unless I'm missing something.)

 

[Farm Boy]

Generally I would not quibble between the two and let general usage of the term be assumed. I was intending to respond to the question "is the US a democracy as we would know it? The will of the people?"

While I am uninformed as to what otago or anyone else would recognize as democracy, I am at least hopeful that a conversation in greater depth as to the differing structures and types of democratic governments would help shed some light on the issue.

 

[Dachs]

(Also, isn't that basically what Dachs said? Unless I'm missing something.)

Sure looks like it.

 

[MagisterCultuum]

At the time of the drafting of the US Constitution, most people understood the term Democracy to denote the rule by the mob of commoners and their turbulent sentiments. The framers (who were mostly of the elites) were very much afraid of the instability of such a form of government, and its tendency to turn demagogues into tyrants.