Serious Wast's Constitutional Corner Part Two: Purpose of the Court

[Wast]

If we want to meander that way, I would certainly say an independent judiciary capable of judging cases and upholding the law is absolutely vital to any functional, modern society.

In my last thread, people decided instead to debate the extent to which a judiciary can be truly independent from politics. Some have argued that the U.S. Supreme Court should be done away with entirely. To what extent can the/a Supreme Court be independent, and what should be its purpose, if any? What should the limits of the Court's power be, and is it even possible to clearly define the extent of those powers?

GO DEBATE.

[Delfos]

Supreme court needs to exist. I don't know how to ensure they are the right choices to defend the constitution and not the political parties views. There could be a possibility of democracy for the nominations, either the parties or the judges themselves would nominate the ones for the constitutional court and then be elected by other judges or even directly by the people - Although elected by the people would be costy and I'm afraid i'd turn into an entertaining election destroying the seriousness of the job.

I'd love that all branches of government would be elected by the people, instead of, in example in the USA, having two parties fighting for power and then have full power to do whatever they want and nominate whoever they want. This way you could see a real and important election for economical issues, people more keen to economics could learn more of the candidates, defense, education, whatever, instead of being a "COMPLETE SUPER PACK, get 1 in power and 10 other for free!".

[Gulliver]

100% impartiality is impossible, but one of the fastest ways to destroy what much the judiciary practically can is by directly electing justices. Constitutional protections against a tyranny of the majority mean nothing if the same majority which makes the laws gets to choose the judges who interpret them.

Also, the two party system in the United States has nothing to do with which offices are and aren't elected. It's because we use plurality voting, which is winner take all, and because the winner doesn't have to obtain a majority running a third party candidate or voting for them risks creating a spoiler effect in which not only does your favorite candidate not win, your most hated one does instead.

[Delfos]

100% impartiality is impossible, but one of the fastest ways to destroy what much the judiciary practically can is by directly electing justices. Constitutional protections against a tyranny of the majority mean nothing if the same majority which makes the laws gets to choose the judges who interpret them.

Also, the two party system in the United States has nothing to do with which offices are and aren't elected. It's because we use plurality voting, in which the threshold for election is very high and because the winner doesn't have to obtain a majority running a third party candidate or voting for them risks creating a spoiler effect in which not only does your favorite candidate not win, your most hated one does instead.

It is impossible to have 100% impartiality. I  can understand that a lot of people are affected by supporting a team regardless of team members and team ideas, yet I and not all people would vote the same for a supreme court as I would for government or other choices. You can see a trend that when the president is one party, the senate majority is normally for the other party. It's rare and is now happening in a lot of countries in europe that they were the same party or ideology, but it's not common and it's going back to the normal trend of even itself. If a direct election held now in portugal could put left-wing judges in constitutional court while government is right-wing. Now there's a risk of the SUPERPACK of power to be all with similar ideology. How can you really put someone there protecting the constitution without a Divine-nomination meritocracy? How can we justify the merit of those judges? Aren't laws made "by the people for the people" too?

[Wast]

Selection of judges has always been a difficult issue. As you've said, it's essentially impossible to find a perfect, impartial arbiter of the law. In reality, justices must be partial in the sense that they have to interpret the law in resolving a case - essentially creating law in the process. The best we can do is insulate the court from the politics of the day, and to limit their ability to impose personal ideology on the decision. The former necessitates selecting rather than (directly) electing judges, and the latter is a matter of the Court earning respect and its members honoring the call for "impartiality" as much as possible.

This is not to say we can ever expect justices to do so. The question, at least for me, is whether we are better off with the risk of an ideologically-influenced Court, or without one at all. If the Court is at odds with the rest of the government, then the Court undermines the (elected) government's policies, which can be a serious problem.

What gives the Court legitimacy is the respect given to it by other branches of government, obtaining a sort of judicial capital. By acting against those branches, the Court expends that capital. The only reason for another branch to even bother following the Court's decision at all is an understanding that the institution needs to exist (to call out some injustice later, for instance). Hence the Court is often under pressure to avoid diverging too far from the ideology of the government, for the sake of its own preservation. That is the only hope I can offer for a potentially "biased" Court not creating too much tension when its ideology opposes that of the government. It's worked surprisingly well - almost inexplicably so - in the United States, with only a few cases of outright rejection of the Court's authority.

The Court's ideology, in the best case, is not in sync with that of the government, so there are periods of opposition and of support that balance each other out. Confirmation of justices helps to limit drastic ideological clashes, and selection (over election) helps to insulate from current politics. Throughout all of this, the Court would have to remain cautious to avoid drastic and inconsistent swings of opinion (something that has been a problem with the Court in the past for the US, but I won't go to far into that right now). For me, that's better than the alternative of having no independent judiciary at all to resolve constitutional disputes.

I don't really have a point here, as its difficult for me to say anything definitely in such broad terms. Selection of judges will always be an awkward concept in a democratic society, but it fits better with the meritocratic ideal than does election - so if we're going to attempt to keep the court somewhat "impartial," its the better route to take.

I am surprised I even posted here...

[Funkadelia]

  Well said Serious wast!