My point was that saying the US process is different from the rest of the world isn’t saying much, since very few countries have the kind of Supreme Court the US has.
Other than Canada, which has–relatively speaking–quite a short history with this, what other countries are you using as a comparison to say that the US confirmation process is out-of-whack with international standards?
Actually, I never made any statement about the US confirmation process being out of whack with other countries. It is indeed different from most with respect to the Senate confirmation part, but I have no particular argument against that. What got me in to this thread was a statement from a previous poster that the appointee “should be someone whose judicial experience shows him or her to be a person who applies the law instead of manufacturing it”, which struck me as being a rather remarkable statement coming from someone who usually sides with conservative arguments here, since the late Scalia, Alito, and Thomas are extraordinary examples of justices who have nothing but contempt for the law and are the perfect poster boys for those who legislate from the bench. I have subsequently gone to some lengths to show the evidence for this.
Given the extraordinary politicization and partisan divisiveness of the US Supreme Court, it’s hard to either support the process that created it or to suggest a better one, since removing legislative scrutiny of appointees could only make the partisanship even worse, if such an extreme were even possible. Sorry if I’ve sort of digressed the topic into a discussion about judicial partisanship, but it really is quite extraordinary and kind of flowed from the OP. I’ve cited a few illustrative cases.
Another one that comes to mind, while I’m on the subject, is the recent King v. Burwell decision last year. Yes, this one was decided rationally – a 6-3 majority, even. But consider the facts before the court and the consequences. It was a challenge to the ACA on the wording of state vs. federal exchanges, a case of such utter absolute frivolity that it’s remarkable that court chose to hear it at all, and actually kind of remarkable that the plaintiff wasn’t charged with some form of mischief for even throwing such a frivolous waste of time into the judicial system.
But here’s the kicker. If the Court had ruled in his favor, it would have effectively demolished the entire Affordable Care Act, rolled back the first tangible attempt at health care reform in half a century, and deprived ten or twelve million people of health care – with absolutely no legal justification. Yet the same infamous Gang of Three – Scalia, Alito, and Thomas – ruled for exactly that, with Scalia writing one of his colorful and vehemently acidic dissents. It ended up 6-3 because Kennedy – conservative but more libertarian than politically partisan – ruled with the majority, and Roberts, in the opinion of many, is developing a concern for the long-term legitimacy of the court as having some vestiges of being an actual court and not just a bunch of pure political hacks like the other three, with all respect to the deceased.
I just don’t know what words to use any more – breathtaking, incredible, tragic, tragi-comedy – they all apply. Just don’t try – and this is a rhetorical comment and not directed to you – don’t try to convince anyone that there’s any kind of real constitutional jurisprudence going on here – at least in matters that have political/partisan/ideological implications.
How about looking at the criteria itself. Do you endorse it? Is “readiness to overturn legislation” an adequate definition of judicial activism? I am saying it is not. This definition is worthless an allows you to change the meaning at your leisure. The court system is not a rubber stamp and any time it overturns legislation does not make it activist. You have a fundamentally different understanding of the branches of government if you can say that the court is “defying the wishes of the legislature”. That type of characterization is nonsense.
Sure, there are ideological lines at the court - and in all humans. This is not a great revelation. But have you seen the SCOTUS stats on rulings? Sure there are 5-4 decisions, but the way you characterize the outcomes of their cases is not accurate. Off the top of your head, what % of cases do you think are 5-4? How often do you think those 5-4 cases are the same split of people? Guess without looking it up.
I don’t think you are following what I am disagreeing with you about. You don’t like Citizens United, I get it. I also don’t care. My disagreement is your definition of judicial activism. Your entire previous cite relies on this definition, and since that definition is so poorly conceived everything that follows is worthless.
It’s funny you think this matters. Whether 1 person or 12 million people would be impacted is outside the scope of what should influence the outcome of the decision. Taking the potential impact into consideration is a better definition of judicial activism (though not complete) then what you have offered up in this thread.
Fiat justitia ruat caelum - Let justice be done though the heavens fall
You said:
I’m saying that is weak analysis, since in “most other countries” the Supreme Court doesn’t have the power or role it has in the US.
I think the rest of your analysis is much more shallow than you think it is, even though I agree with the general thrust. But this one point in particular stood out to me as hard to support.
“Defying the wishes of the legislature” is by definition what overturning legislation means. Understanding this is not a matter of understanding of the branches of government, it’s a matter of language comprehension. This doesn’t tell us whether it’s necessarily good or bad, and sometimes legislation really could be unconstitutional. But when it happens a lot, and a lot more from one side of the court than the other, then it should raise a red flag. Either the legislature is chronically incompetent, or the Supreme Court is stacked with political hacks. There should be enough information in the previous posts to indicate which I believe is true, and, fairly persuasively I think, why I believe it.
All the ones I’ve seen on campaign finance and gun control have been the same, and the same three constantly railing against health care reform. But it’s not the absolute numbers that are as important as (a) relative numbers compared to prior courts, (b) the fact that there are so many of them, and (c) the fact that these close votes tend to occur on the most important issues of the day, always split along ideological lines. Yes it should be a revelation. The politics of a justice should not be discernible, let alone blatantly obvious. Sure they’re humans, but if they’re that partisan, they should be in some other job, like being Ted Cruz’s campaign manager.
But with regard to numbers … this is unfortunately quite a dated article, but even so, The Incredible Polarization and Politicization of the Supreme Court tells you a lot about how divisiveness has been growing. The Roberts court and the immediately preceding Rehnquist court are the only ones in which 5-4 decisions exceeded 20% of the cases, and the Roberts court holds the record. I’m pretty sure that if you tallied up all cases, or limited yourself to the ones with the big public policy implications, it would be very much higher. Indeed the Washington Post reviewed some of the most important cases heard up to that time by the Roberts court, and by my count no fewer than 17 of 27 major cases were 5-4 decisions – the majority of them!
Lots of people don’t care. That’s why the Koch brothers and Sheldon Adelson run the place.
Also, incidentally, not only does Congress consistently have an abysmal approval rating (11% or something last I looked) but the Supreme Court itself is now getting into that same disreputable company – the one institution in government that is supposed to be above the political fray.
Rasmussen Reports found that about six in 10 Americans now believe “most Supreme Court justices have their own political agenda.” Gallup reported Monday that like all three branches of government, views of the Supreme Court have reached new lows. Only 30 percent of the public remains confident in the Court, the lowest rating since the question was first asked in 1973.
The one cite uses that definition. My arguments go far beyond just that.
It doesn’t? I beg to differ. You misinterpreted my comment, which certainly wasn’t intended to mean that Supreme Courts in other countries didn’t have the same role or power as the SCOTUS. Rather, it was simply a reference to the fact that judicial appointees weren’t such raving partisans that their appointment had the impact of a national election; basically, justices were expected to rule on the merits, and while everyone has their biases and personal views, justices rarely exhibit anywhere near the same kind of relentless partisanship that we see in the SCOTUS. So whether John or Fred or Sally gets the appointment, it doesn’t matter enormously in terms of how they’re expected to rule. Their decisions may be far-reaching and important, but, significantly, who they are isn’t a good predictor of how they will decide cases. The cases gets lots of news coverage, the judicial appointments do not.
And you’re wrong about not having the same role or power as the SCOTUS. You seem hung up on the idea that other countries don’t have constitutions or enumerated rights, but they do. And the interpretation thereof can be dramatic. From the rulings of the Supreme Court of Canada:
1988 - R. v. Morgentaler: The court struck down Canada’s abortion law in its entirety, ruling it violates a woman’s right to “life, liberty and security of person.” Far more dramatic and far-reaching than Roe v Wade, possibly the most monumental ruling in modern Canadian history.
1990 - R. v. Askov: Elijah Askov and three others were charged with conspiracy to commit extortion in November 1983. But the trial was delayed until September 1986, almost two years after the preliminary hearing. The Supreme Court said the delay violated the accused’s Charter right to be tried within a reasonable time. Thousands of criminal charges were stayed following the court’s conclusion.
1991 - R. v. Stinchcombe: In a 7-0 decision, the court ruled the Crown improperly withheld evidence from Calgary lawyer William Stinchcombe’s defence counsel prior to the February 1989 trial on embezzlement charges and this likely affected the outcome. Justice John Sopinka, who wrote the judgment, said prosecutors must turn over to defence lawyers “all relevant information” in a case. The ruling is seen as having changed the practice of criminal law more dramatically than any other decision.
There were also a series of decisions that forever changed the landscape of same-sex marriage and gay rights:
1998 - Vriend v. Alberta: In a unanimous decision, the court said the exclusion of homosexuals from Alberta’s Individual Rights Protection Act (IRPA) violates the Charter of Rights and Freedoms. The court ruled that, effective immediately, Alberta’s act will be interpreted to include gay men and lesbians, even if the province doesn’t change it.
1999 - M v H May: The court rules same-sex couples should have the same benefits and obligations as opposite-sex common-law couples and equal access to benefits from social programs to which they contribute.
2004: A complicated “reference decision” responding to a request from the federal government on enacting SSM legislation after most other provinces had already done so, which paved the way for the formal legalization of SSM at the federal level.
No, I didn’t misunderstand and your reliance on Canada alone is making my point.
Canada is not “countries,” and Canada’s court hasn’t had the power to overturn legislation for very long. Moreover, in Canada, there is no division between the Prime Minister and the parliament, nor is there a filibuster. So there’s no particular reason to think that Canada would be like the US even if the US Supreme Court were filled with neutral law robots.
So claiming that the difference in cultures concerning appointments is evidence that the U.S. Supreme Court makes partisan decisions is a very weak inference.
Yeah, judicial review as a long standing custom isn’t necessary for a free society, but it’s been very important in the United States. Probably moreso over a longer period of time than in any other country. It’s not even clearly established in the constitution, but something to note is the very conservative structure of our Federal government, that makes it difficult to pass legislation and effect changes have made the SCOTUS very important sometimes at making changes the country would’ve taken decades to do through the legislative process.
If we had a system like a Westminster system it wouldn’t have been important because simple legislative majorities can enact sweeping changes.
Well we’ve been doing it for over 200 years and the republican still stands. Some might say that is the reason WHY it still stands.
Lets say you have a one party rule at the federal level and that one party passes unconstitutional law after unconstitutional law in an effort to push their unconstitutional agenda. Well, its the court’s job to stop them.
As fara s 5-4 is concerned, isn’t there a swing vote judge? I mean we win some of them don’t we? And its not like half the cases go 5-4
IMHO, the supreme court got politicized when they torpedoed Bork’s nomination. Anyone that makes it through that political firestorm is going to carry some scars. I have no love for Bork but he was in fact very qualified and a great legal mind who was probably no worse than Scalia and a good deal smarter and he got crucified.
And incoming fire received by Obama’s nominees can be traced back to the moment that we publicly tarred and feathered Bork and torpedoed his nomination based on where his judicial philosophy led him.
YOU should read pre 9/11 Scalia. I think he probably wrote the best opinions (I didn’t always agree with them, or their results) of anyone on the court at the time.
The confirmation process has devolved to the point where this has become inevitable.
Can you name a supreme court where the justices are appiinted politically that is NOT politically segmented?
I may not have addressed everything but I’ve been doing a lot of typing here lately so I’ll try to keep to the basic essence …
OK, now I think we’re just talking past each other, or you’re refusing to acknowledge my points, or something. You stated in #25 that “in ‘most other countries’ the Supreme Court doesn’t have the power or role it has in the US”. I’ve just shown you that it does, and indeed the abortion decision alone was far broader than anything SCOTUS has ever done in that politically charged domain. I’m “relying on Canada” because that’s what I know, but I would be very interested to know if anyone can point to any modern democracy anywhere that has the kind of extreme partisanship that prevails in the SCOTUS. Also please see the linked article in my response to Damuri Ajashi below.
And now you seem to be engaged in some deflection about a parliamentary system of government. I don’t see the relevance of that at all.
Ummm… no. The evidence that the US Supreme Court makes partisan decisions is the long list of partisan decisions it has made! I outlined a few here, and here, and here, and here in this thread alone, that last one containing a link to an article in the Atlantic titled The Incredible Polarization and Politicization of the Supreme Court. One might argue about the precise cause(s) of it, but the partisanship of the Supreme Court – and indeed the fact of how flagrant it is – is not a matter much in dispute.
Your characterization of the Westminster system is essentially correct but I don’t see its relevance. Are you saying that because it’s so difficult to enact legislation, it’s good to have a partisan Supreme Court that keeps overturning it whenever the opposing side on the court has a majority? So that virtually nothing ever gets enacted at all? That seems counterintuitive. Are you saying that because the legislature is so dysfunctional it’s good to have a Supreme Court that acts as a secondary unelected legislature? That would be an odd rationalization, too.
Yes. Not to belabor the “other countries” point, but this article is an interesting read. The money quote in this extract is the last paragraph, but the whole article at the link is well worth a read:
[Conservatives] want to replace the late Justice Antonin Scalia with a genetic match of Antonin Scalia, someone who will roar conservative, scathing dissents, and even better, author decisions like DC vs Heller, which declared that the constitution guarantees the literal right to bear arms.
Mind you, had it been Ruth Bader Ginsburg or Elena Kagan or Sonia Sotomayor or Stephen Breyer who’d passed away over the weekend, left-wing advocacy groups across America would already be out with the bullhorns at full blast: “WHAT DO WE WANT? A SOCIAL JUSTICE! WHEN DO WE WANT HER? NOW!”
As a matter of fact, the replacement of Justice Scalia, who was found dead Saturday at a hunting resort in Texas, is already becoming a big, bitterly disputed political issue in the presidential election, exactly what you’d think such an appointment should not be …
… In other democracies, supreme court judges are more apt to have minds of their own; several of the decisions that struck down Stephen Harper’s unconstitutional initiatives were unanimous, joined even by judges appointed by Harper. Frank Iacobucci, a former member of the Canadian Supremes, once told me that during his 13 years on the bench, "I had no idea what any of my colleagues’ political background and preferences were. “Their politics and political views,” he said, “were not evident in their work. If they were there, they were so subtle that I missed them.”
Are you under the impression that Scalia has never overturned laws passed by Republicans?
I beg your pardon? Most democratic countries in the world have a court that has that kind of authority. The form it may take may be different from that of the SCOTUS, but it’s the countries that don’t have it that are the rarity.
For example, here’s the list prepared by the Canadian Library of Parliament:
Charters of Rights in Commonwealth Countries They state that of the 54 members of the Commonwealth, 51 have constitutionally entrenched Charters. The exceptions are the UK, Australia and Brunei Darussalam.
The UK is an unusual case, given their constitutional structure. It is true that the courts cannot strike down an Act of Parliament. However, they provide significant protection for individual rights in two different means: by the Human Rights Act 1998, and by adherence to the European Convention on Human Rights. The Human Rights Act is a mechanism to enforce the European Convention against the government through the British courts, while the European Convention is enforced against the government of the UK by European Court of Human Rights. The courts, both domestic and European, thus have a significant judicial review function.
That’s the Commonwealth, using the concept of appellate courts with general jurisdiction.
If you go to the Continent. and to countries influenced by the civil law tradition, such as South Africa, there is a separate court, called some variant of “Constitutional Court” whose sole function is to review government measures and statutes to ensure compliance with the Constitution. And the European countries also are adherents to the European Convention on Human Rights, with a right of citizens to appeal to the European Court of Human Rights.
I’m not familiar with the South American systems, nor with Asian and African systems outside the Commonwealth, so can’t express an opinion on those. However, I think your assumption is simply incorrect.
The courts of Canada have had the power of judicial review of legislation since 1867. The courts have overturned legislation, both federal and provincial, since the beginning.
The scope of the judicial review was primarily on federalism grounds, but there were also individual constitutional protections based on the concept of the implied Bill of Rights. That was also supplemented by the Canadian Bill of Rights (at the federal level) and by the federal and provincial human rights codes, which give the courts the power to hold statutes inoperative for conflict with the individaul rights set out in those quasi-constitutional provisions.
In 1982, the scope of judicial review was broadened by the adoption of the Charter, which sets out individual rights, but judicial review has been an intrinsic part of our constitutional structure since Confederation.
Yes. The Supreme Court of Canada.
The Court has nine members. Of those nine members, 8 were appointed to the Court by Conservative governments, and one by a Liberal government. (The Chief Justice was initially appointed to the court as a puisne justice by a Conservative government, and then appointed Chief Justice by a Liberal government, but I’m counting her as initially appointed by a Conservative.) Of the 8 appointed by Conservatives, 7 were appointed by Prime Minister Harper.
But if you look at their decisions, they are not predictably fragmented, and certainly do not favour a particular party. In fact, during a 16 month span in 2013-2014, the Court ruled against the federal government in 11 significant constitutional cases, often unanimously. When they do split, given the fact that the majority of them were appointed by Prime Minister Harper, it is not possible to see a clear political division.
A scorecard of the Harper government’s wins and losses at the Supreme Court of Canada
It’s not incorrect to characterize it this way, but it’s also not informative. It’s also unnecessarily inflammatory. The legislature has a role, and the judiciary has a role. Performing this role is independent of the wishes of the other.
This is a false dichotomy. It could be both, or neither. Looking at the October 2014 term, there were 19 5-4 decisions. Of those, 8 were decided by the group that included Kennedy, Ginsburg, Breyer, Sotomoayor, and Kagan. Sure, prior years have different results, some going one way and some going the other. Judges have their own ideologies - it would be unrealistic to expect some kind of random distribution.
You misunderstand me. I care very much about Citizens United. It was correctly decided and is a victory for free speech. What I don’t care about is your disagreement.
That’s a great example of cherry picking - determining which are “major cases”. In any event, of those 17, 3 were decided with the conservative wing not in the majority. Still that represents 14 of the 27 that were cherry picked. Great. If you look at all 5-4 cases in the last 8 years, Roberts, Alito, Scalia, Thomas, and Kennedy voted together on a majority of cases in only one of those (October Term 2010. All other years either liberal wing + Kennedy or some other combo were the majority of 5-4 cases. Though October Term 2009 saw 50% flat rate for the conservative wing.
Then disclaim it. Or do you endorse that definition? You offered your cite in support of this claim:
And that is the source of my disagreement as I noted.
Northern Piper: I defined the terms more carefully in my earlier posts. You’ve objected to the shorthand versions.
I’ve gone through your posts, but I’m afraid I didn’t see where you changed the comment I’ve cited? Can you help me please?
Maybe I misunderstood you with my quick reading this morning. I took your posts to be observing that many countries have charters of individual rights and that many countries have high courts with the power to enforce those rights.
But my point was limited to what we mean by “judicial review” in US jargon–overturning duly passed legislation on the grounds that it conflicts with that Court’s interpretation of some inherent individual rights.
Are you saying that 51 of the 54 members of the Commonwealth have that specific power? Because your citation only shows they have a Charter, and part of your post seems to acknowledge that they cannot, in fact, render duly passed legislation unconstutional. And are you saying that the Canada high court had the power to overturn duly passed legislation on the grounds that it conflicts with that Court’s interpretation of some inherent individual rights riot to 1982? If so, do you have some examples?
My broader point was this: when you have a court with the power to reject duly passed legislation based on finicky subjective things like views on the scope of individual rights, then you’re very likely to get political fights over nominations. When you add the fact of the American system of divided government, by constrast to parliamentary systems, then it becomes even less surprising. Thus, the difference between Canada (or other countries) and the US doesn’t actually say that much about the degree to which US Justices operate in a partisan manner.