Supreme Courts ...How others go about it.

Great Debates
1

The colour, heat and emotion that occurs every time a SCOTUS position becomes available is a continual befuddlement to this furriner.

Did the Founding Fathers it would desirable, or even just a good idea that so much at stake over the thinking, health and acumen of octogenerians?

Perhaps others from different jurisdictions could post how it’s done elsewhere.

Australia:

:Under section 72 of the Australian Constitution, Justices of the High Court of Australia:

  1. Are appointed by the Governor-General in Council;
  2. Cannot be removed except by the Governor-General in Council on an address from both Houses of Parliament in the same session, praying for such removal on the grounds of proved misbehaviour or incapacity;
  3. Receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office; and
  4. Must retire on attaining the age of 70 years.

In practice HC appointments are nominated by the Prime Minister, on advice from the Attorney-General after consultation with the States Attorneys-General.

The current bench (7) of the High Court under Chief Justice Susan Kiefel has 3 women, 4 men. 2 frm NSW, VIC and QLD and 1 from WA. The oldest is 68, the youngest is 45.

Qualification for the High Court of Australia Act 1979 simply requires that appointees have been a judge of a federal, state or territory court, or that they have been enrolled as a legal practitioner for at least five years with the High Court itself or state Supreme Court.

The High Court doesn’t feature high in popular conscience.
Being able to name the current High Court justices would be a party trick outside the legal profession. I’d doubt the average Australian could name the current Chief Justice.

The primary split on Constitutional interpretation is between states rights and federalism.

While the appointment of justices is the prerogative of the executive, there have been few controversial appointments.

As illustration, in 2017 Justice Hayne was succeed by his wife, the current Justice Gordon to a collective national and political meh

2

I suggested on this board a few years back that the minimum age for SCOTUS should be raised to 65 or 70. This would mean every Presidential term would likely get two or three or more SCOTUS vacancies to fill, and the stakes would be much, much lower since justices would step down (or pass away) much more frequently. An amendment to the Constitution would be so difficult that at first this would probably only be possible if some brave presidential candidate (and their opponent) mutually promised that all nominees going forward would be over this minimum age.

Without this or another solution to tamp down on the incredible partisanship of SCOTUS nominations, the stakes will only get higher, and the risk of some nut doing something crazy and dangerous will skyrocket.

3

UK: Supreme Court isn’t remotely as powerful and tends not to strike down primary legislation.

4

A creeping byproduct of politicizing the judiciary is that eventually, under the right (wrong) conditions, an executive takes over and is emboldened and encouraged enough to brazenly ignore and defy court decisions. In other words, the judiciary becomes discredited to the point where an executive (possibly with a strong legislative majority) tells the court to go to hell. Under the right (wrong) conditions, the people overwhelmingly support the executive and legislative majority, potentially at their own peril. Badly discredited and out of step with popular sentiment (or just out of step with the current regime), the president and legislative majority begin impeaching, harassing, threatening judges who are disloyal and replace them with loyalists. This is ultimately how authoritarians cement their power (see Turkey and Russia). Successful authoritarians find ways to use judges to override popular sentiment, and popular sentiment to override judges, whichever works in a given situation, at a particular point in time.

5

In Canada, the Supreme Court is more powerful within our system than the US Supreme Court is in the US court system, but we’ve not had this sort of politicisation.

There is no formal review required by Parliament. It’s an executive appointment by the Federal Cabinet.

Over the past 20 years, there have been calls for greater parliamentary review, and different governments have experimented with different things, but no-one wants the political circus that we see on our doorstep every time there’s a vacancy on the US Court. In many peoples’ opinion here, the US Court has really ceased to be a court of law. It’s a political review body that pretends to be a court.

Interestingly, in one of the articles after a Scalia died, one of our retired SCC judges said he sat on our Court for fifteen years and couldn’t tell you how his colleagues voted. The principle of non-partisanship is so heavily ingrained in our court system that judges are not political.

I was once the moderator on a Q&A session with a different SCC judge who gave a very similar answer.

6

Do not forget that the SDMB is not, I repeat NOT, a good sample of the US. Only 43% of Americans could name a single SCOTUS justice.

They have nine to choose from and some have been there for decades.

7

The Founding Fathers thought that the Supreme Court would be the weakest branch of the government. They did not anticipate the politicization of the court and the supine nature of the Congress in response to the politicization.

8

Marbury v. Madison really mucked things up. IMHO, the court was meant to be just what it sounds like, a court, not a legislative review body. For most of our history, the court even though it had powers wasn’t really as big of a deal as it is now.

What happened was Roe v. Wade. It was really the first time that the Court overruled the will of the people and they actually cared about it. If you really want the history of modern American government, it all revolves around Roe v. Wade. The rise of the Moral Majority, the polarization along religious lines, the politicization of the courts can all be traced to it. If Norma McCorvey could have kept it in her pants, the world might be a different place, but I digress. Roe v. Wade let people see how the sausage was made and it provoked a serious backlash. It changed political equations because people saw that it really didn’t matter who they elected since any laws could simply be overturned based on the court. So pro-lifers who had been content targeting state legislatures now made it their goal to target the court and the way to do that was via the Presidency. The long-lasting nature of Supreme Court Justices made every Presidential election more important. You couldn’t afford anymore to maybe vote against your party in a single election knowing that in four years things could be changed. Now you were looking at every election having a 40 year effect and it raised the stakes considerably. Pro-lifers knew that every Democratic President regardless of anything else they stood for was a loss for fetal rights that could extend an entire generation down the line. People became much less willing to cross party lines. It really pushed the narrative that government is inept and incapable of any action, since any action they take could just be made null because 5 people decided they didn’t like it. The fact that the legal basis for Roe was and is extremely questionable made it even worse. No one had heard of a right to privacy prior to 1973. It wasn’t taught in schools, no reasonable reading of the Constitution implied it was there, but it suddenly appeared because it was convenient and then people didn’t understand how such a right applied to abortions. It didn’t apply to any other government regulated medical procedure, why were abortions special? They didn’t understand the ruling and perhaps not incorrectly thought that it was just made up to trample on their rights of self-rule. This created an entire class of people that began to see the government not as representative of their interests, but as elite enemies of their votes. When you combined them with those dissatisfied over the outcome of the Civil Rights movement, you created the modern Republican Party and more accurately created Trumpists.

9

the UK Supreme court has only been in existence since 2009

10

Netherlands; I had to look up the wiki for our High Council. It is rarely in the news.

There are currently three High Councils, each for a different area of law.

The most important one, the general/civic law High Council has currently
[ul]
[li]one president [/li][li]seven vice presidents[/li][li]thirty members[/li][li]firfteen special members.[/li][/ul]

Those 52 peopel are divided over four chambers, each for a different part of the country.

All are appointed for life but expected to step down at the age of 70.

11

Sure, but before then it was the Law Lords, who performed a very similar role.

But neither the Law Lords nor the SCUK have the power to strike down primary legislation, so they’re not as powerful in their system as SCOTUS, SCC, or High Court Aus. Most they can do with primary legislation is issue declaration that it conflicts with UK treaty obligations, like the Human Rights Convention. Then it’s up to Parliament to decide what to do to fix the problem.

12

As I said in the Kennedy thread, in Canada the Supreme Court has made numerous landmark rulings – like the ones leading to progress on same-sex rights and marriages and on abortion rights – but justice appointments are back page news of no particularly notable news value. The process is simply not political.

I would think that lack of any great public interest in who the justices are, despite great public interest and participation in elections, is better evidence for confidence in a court genuinely dedicated to principles than convoluted technical argument for why one side or the other on the US Supreme Court “genuinely” represents an impartial constitutional interpretation. One has to more or less conclude that neither side does.

13

This is the burden the SDMB carries … (the collective) “you” are my window into the American soul and psychic. So play nice, please. :slight_smile:

14

I’m happy to take it as a given that Roe v Wade was pushed through on unprecedented and in some circles unpopular terms.

It’s unremarkable, however, for judges to make rulings based on what’s right, to deliver a just outcome rather than a legalistic one. And the same complaints happen when judges rule strictly on the law causing an unjust outcome, which happens too.

A country that separates church and state cannot have judges deciding cases based on religious arguments, ESPECIALLY when it’s the religion of the majority. What I mean is that it was vitally important for America’s integrity that the court decide that case without reference to anyone’s religious beliefs.

15

The High Court of Australia’s jurisdiction closely aligned with CSS.

Landmark cases like Mabo (which repudiated the notion that Australia was terra nullius at the time of white colonisation and that the common law could recognise native title) have given the epaulet of being an activist court, though the unanimous ruling in the 2017 “Citizenship Seven case” showed that they were equally capable of literal textual interpretations of the Constitution.

One distinction is that the High Court does not give advisory opinions in the same manner as SCOTUS based on the 1921 In re Judiciary Act. judgement

16

The problem is that it circumvents the will of the people. Justices are not in place to legislate, only interpret the law. They are unelected and appointed for life, so have no check on their power. It’s nice to say they have to be just at the expense of the law, but just according to whom? If it’s just their own opinions, then you’ve set up an oligarchy of 9 as your rulers. You may like them when their sense of justice aligns with your own, but what about when it doesn’t? There’s likely a 5 conservative majority now. What happens if they say that children must be taken from their parents at the border? How do we stop that? You personally may consider Roe v Wade to be just, but there are a heck.of a lot of people that think it’s state-sponsored murder and no matter who they vote for, there’s zilch they can do about it and you yourself admitted that it was unprecedented and pushed through. If you don’t think that’s a problem, my guess is that you might change your tune after Trump appoints another justice or two if RBG passes.

17

Are those rulings typically pretty lopsided, not like the 5-4s we see so often with SCOTUS?

18

We actually don’t see lots of 5-4 decisions. Typically those only happen on more activist decisions. On what we might call more interpretive decisions, they’ll usually be much more united.

19

Personally I’d be in favor of a constitutional amendment setting a mandatory retirement age for Article Three judges. Say age 80; it works for the College of Cardinals.

20

Actually, bishops have to hand in their resignations by 75. However, Cardinals still remain cardinals after 80; they just can’t vote in conclave after their 80th birthday.

Zev Steinhard