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How come seven people (the supreme court) can have so much power?
I am not American but it seems to me that it is an incredibly broken system that 7 judges can essentially halt an entire country's progress. They decided that corporations have rights like a person, they can decide if gay marriage is legal, they can decide basically anything if they wanted as I understand it.
So why does this even exist? Surely such gigantic decisions should be left to a parliament or something.
First of all, 9 justices (or is there something I am missing?).
More Perfect is a great podcast if you are curious about the US Supreme Court(especially, the first season). One of the strange parts of the supreme court is that the constitution doesn't even say much about what the SC is.
As for deciding anything, the SC can only make decisions in court cases that have been appealed all the way up to the SC. Most important cases that overturn laws involve political groups finding or staging incidents that have the best available person in a case, then appeal until it reaches the supreme court (again, this episode of More Perfect goes into this pretty well).
Basically, the SC wasn't originally intended to
change the lawstrike down individual laws and executive orders. The supreme court more or less gave itself the power of Judicial Review in the Marbury v. Madison case. There is a lot to the US federal government which places large amounts of power in weird places. Keep in mind, the US constitution was mostly for the purpose of strengthening the original 13 states against foreign powers (both economically and militarily) and give the people a few basic rights.Edit: link formating
Edit 2: see Algernon's correction
I'll admit I know very little about the U.S. Supreme Court but, if it operates like its Australian counterpart (the High Court), it doesn't change any laws. All it does is state whether a law is constitutional or not. So, if a state government makes a law banning same-sex marriage, and someone appeals this to the Supreme Court, the Supreme Court's role is limited to basically saying "yes" or "no" on that law as it stands. It can't change the state government's law, it can't change federal law, it can only rule that a law banning same-sex marriage is unconstitutional - and thereby invalidate the law. Even that Marbury v. Madison case you cited says this.
Yes, this is true. I was just being overly genreal. I will edit that in.
Seconding More Perfect... it's an amazing, super high quality and truly fascinating podcast, and I say that even as a non-American. IMO they do a really good job of fairly representing both sides of the SCOTUS decisions, too. Their interviews with the people directly involved in a lot of the cases are fantastic and really show that not every decision is as one-sided or clear cut as many would have you believe; Even disastrous ones like the Citizens United and Dred Scott decision are more nuanced than you would assume.
The simplified version is that they are from a much smaller/ simpler time when the idea was to have checks and balances so that the president or senate or congress couldn’t run rampant. They’re supposed to be the best of the best and able to decide if laws/bills follow how we interpret them. Ideally they should separate themselves from politics (a reason for lifetime selection is to not fear for party retaliation) and act in the interest of the country, but reality is often not ideal.
Yeah, this is an aspect of the U.S. Supreme Court that I have never understood: the highest court in the land is overtly political. Its judges are appointed politically, and you expect them to behave politically. A court should be apolitical. You've undermined your own judicial system by turning it into a political arena.
Whats the alternative to appointing them politically? I agree it doesn't seem ideal but don't see a better solution.
Appointing them apolitically, of course.
High Court judges in Australia are appointed by "the Governor-General-in-Council". This means our Governor-General operating on the advice of the Federal Executive Council, which is a group selected by the Governor-General to advise them. In practice, the Federal Executive Council includes the Prime Minister and other senior Ministers of the current government, so it's basically just the government's opinion. Theoretically, this means that appointments to the High Court can be politically motivated, but the inclusion of the neutral Governor-General tends to damp down any extreme politicisation of the process. For example, we don't have hearings in the Senate to decide who will and will not be a judge, with all the political rigmarole that comes with that.
Some ideas for a less political appointment process could be:
The judiciary themselves decide who to nominate to the High Court. There could be a small council of senior judges (for example, the Chief Judges of the Supreme Courts of the states) who meet to decide on an appointment to the High Court. This introduces a conflict of interest, though, given that senior judges are also themselves the best candidates for the vacancy.
There could be an independent statutory body to oversee appointments to the federal judiciary. Set up an arms-length body of a handful of eminent people to decide who to appoint to the High Court.
Senior public servants in the Attorney-General's Department could decide who to appoint. Public servants aren't political (at least not here in Australia!), and are expected to be impartial.
I'm sure other people could imagine other non-political ways to appoint judges to the highest court of the land; these are just some suggestions off the top of my head.
So a few starting points:
Strictly speaking this is a misleading interpretation. The court in Citizens United v FEC ruled a really, really complicated conclusion that had to address four different wonky issues, and the majority decided to make a clear statement about political speech (namely, that its status as "political speech" is not dependent on the entity speaking, that is, corporate vs. individual). The reasoning was not that corporations have rights like persons but that corporations are made up of people. So in this sense, the court was saying literally that corporations are people (because they are made of people).
It seemed to also be saying that the crimes that corporations commit should be similarly held to be committed by the people who make up that corporation (and are most directly relevant to the crimes being committed)--a fun corollary that I don't see enough people laughing about.
Strictly speaking, they decided whether the state had a compelling interest to deny people the right to marriage between two consenting adults based solely on their genders. This strikes at the due process clause of the constitution. The country can still perform an end-run around the courts by passing a constitutional amendment, but that's hard as balls, especially on culture-warfare issues (which, to be fair, gay marriage is moving away from finally).
The Supreme Court can only react to the cases in front of them. They cannot create precedent just out of thin air. They need a party having standing who brings an issue of law (especially of interpretation, and particularly when different lower courts disagree) to the docket. So they do have constraints, and if their judgments concern issues that are not based in the constitution but on a regulation or legislation, then in most cases the legislature is able to simply clarify the matter themselves, or change the law, or the get rid of the law, whatever. The Supreme court acts to interpret the law and to find fact, not (generally) to make law except with weak precedents on the unclear stuff that can be overruled at a later date so long as a new case comes their way.
It is a weak and impermanent way to achieve change, which is why you have liberals scared out of their minds right now that the judicial victories they've had are about to start being undone for the next generation or two.
It's worth noting that while this is nominally true it's not uncommon for lawsuits to be made with the sole purpose of escalating to the supreme court and triggering a review (or review).
Absolutely, but the Court itself has no control over that. That's the work of (usually) organizations looking for fact patterns that play sympathetically to their cause.
Tell that to Al Gore.
Haha, yikes. Well, it still doesn't come out of thin air. Granted, it's a lot shakier air than a lot of other court decisions, but there was still some alleged basis for their decision.
This isn't only an American phenomenon: we here in Australia also have a High Court to rule on constitutional matters. It's not that they necessarily have power, it's that someone needs to be able decide whether any given law is constitutional or not. That's all the U.S. Supreme Court and the High Court of Australia do: they take cases where someone claims a particular law is unconstitutional, and they rule on its constitutionality.
However, seeing as a country's constitution underlies everything its government does, this gives the Supreme/High Court a power of review over the government itself - which is an extremely powerful situation to be in. But it's more of of a leveraged power than a direct power: the Supreme/High Court can't make laws, it can only decide on a government's laws. So it potentially gets oversight over everything a government does.
It's an extremely important role in a liberal democracy. Someone has to make sure the government doesn't do things it's not allowed to do.
It really should be a much larger body, with some kind of accountability. Clarence Thomas has gotten away with some serious conflicts of interest because there's no way to get someone out of there. His wife is a conservative lobbyist. If there were like 25 seats it would be more resistant to a single president's whims.
I think one thing we could do is limit their term length to something like 20 years, put on a rotating nomination cycle (like the senate) so that every president is guaranteed one or two picks.
The Constitution allows for Supreme Court justices to be removed via impeachment.
Common law vs Civil law
And also, why they are there for life, I mean, the until-I-die thing seems a bit odd now, it looks old, like from another centuries. In modern world a little turnover is preferred.
In Italy we have a similar organ: Constitutional Court, but the term length is 9 years; also members are not nominated only by president/PM.
As someone says above, I believe the intent was to remove the necessity for them to be pressured to act in certain ways for the sake of reelection. Given the fact that they only get into that position via appointment, however, this seems like a spot-check gone wrong.
Keep in mind that the average life expectancy when the United States Supreme Court was established was quite a bit shorter than it is today. This source says only 36 years:
http://www.legacy.com/life-and-death/the-liberty-era.html
Keep in mind that the term "average life expectancy" doesn't reveal the whole story. It's always a bit of a furphy to rely on this statistic when looking at historical life spans.
Historical average life expectancy values are greatly influenced by child mortality rates. If a lot of children die young, this drags the average life expectancy down. However, if someone survives childhood, they might reasonably expect to live to a ripe old age.
Let's imagine 10 hypothetical babies, and follow them through their lives. Of those 10 babies, we notice that 50% of them die at age 3 due to rampant disease in the area, while the other 50%, who survive those childhood illnesses, go on to die at age 60. The average life expectancy of this group is 31.5 years. Now, let's introduce some treatment for those childhood illnesses. Now, instead of 50% dying in childhood, only 40% die at age 3, and 60% live on to the age of 60. The average life expectancy has increased to 37.2 years. Medicine continues to improve, and only 30% of babies die young; average life expectancy increases to 42.9 years. When only 20% of babies die young, average life expectancy increases to 48.6 years. If we reduce child mortality to 10%, the average life expectancy moves up to 54.3 years. And we haven't actually changed how long people live: they're all still living to 60 years old if they survive childhood.
Most of our increase in average life expectancy compared to historical has come through better treatment and prevention of childhood illnesses, rather than from large numbers of people actually living longer.
Fair point but regardless, justices are still serving to a much greater age today than they used to...
http://www.dailywrit.com/blog/wp-content/uploads/2010/10/DW_age_at_retirement.png
I'm not denying that: lots of people are living longer than they used to. But we can't assume that, two centuries ago, people were only living to their mid-30s. Therefore, this had no bearing on how people wrote the U.S. Constitution.
The implicit tenet your whole argument is based on is one where it's impossible (or impossible in practice) for the politicians to follow the steps the constitution outlines for changing the constitution.
That's what balances the system: the judges rule on constitutionality, the politicians can "just" change the constitution if the current law or court gets it "wrong".
Now in practice, the US constitution is so hard to change, parliament seems impotent. Now even more so when the partisan divide runs so deep that compromise to reach supermajorities seem impossible.
(For comparison, the world's second oldest constitution after the US one is the Norwegian constitution. It's had 315 changes made to it over 149 separate occasions (link in Norwegian). 20 of those changes are after the year 2000. Even so, the debate whether it's too hard to change the constitution surfaces in Norway at the end of every parliamentary session because three separate parliamentary bodies (4 years between each election) need to approve a change for it to go into effect)
The original design of the US government had a check on the Supreme Court that has since ceased to function (when they abused power, the citizens were literally supposed to revolt and overturn it). Since the check is gone, they've repeatedly abused their power.
I mean, even before you get to that point, any justice can still be subject to impeachment by congress, using the same process that a president would go through. I don't think "citizens must literally rise up if shit goes south" is even the second or third line of defense against a despotic judicial branch. If someone wants to ignore what they say, it isn't like they have an army to back up their words (see also: executive branch) and it isn't like they have a popular mandate to morally back up their actions (see also: legislative branch).