I at least first heard George W. Bush say it. He said, the Supreme Court shouldn’t set public policy. Furthermore, he said we should be more like the parliamentary system they have in Britain. I guess since most Americans don’t know (or don’t care) what a parliamentary system is, his comments went without notice.
But even for those who support it, it is a big deal. For the first time in over 200 years, we could be without an independent judiciary.
My question is, what would be different? I think it would be much worse. But W. thought we’d be better off that way. So by all means weigh in. Would we be better off? Would we be worse? And please explain your comments.
I think Strom Thurmond might have still been alive, if not still in the Senate, when W. said this. Could we really trust Mr. Thurmond to have the ultimate power to define things like free speech, instead of the SCOTUS?
As I said, I was shocked by the comments. But if you think you know better, by all means weigh in.
Unless things have changed, in Britain, the ultimate power lies in the parliament. They say that is okay, because Brits are sensible people, who would never pass radical legislation. But I wonder if that would hold true here.
I don’t think that Bush was talking about eliminating judicial review, but merely judicial restraint. He was espousing a judicial philosophy that interprets the law rather than creating law out of whole cloth like a Super-Legislature.
So if Strom passes a law saying that blacks cannot criticize the President, then the judiciary would react to such a clear violation of the Constitution. If Strom passes a law saying that it is illegal to burn the U.S. flag, then this philosophy of judicial restraint might hesitate with overturning a democratically passed law on the possibility that it could be in conflict with the Constitution.
IOW, err on the side of the majority being right. If things like abortion and SSM are to be legal, let them be adopted by consent of the people instead of judicial fiat.
In a similar vein, ultimate authority in Australia also resides with the various parliaments (Federal/State), but the judiciary is independent though doesn’t have life time tenure.
I’d reckon the average Australian couldn’t tell you how many Justices sit on the High Court of Australia, much less who the incumbents are.
The primary cause of this IMHO is due to Australia not having an equivalent of the Bill of Rights and hence the High Court rarely rules on matters of public policy.
As a further consequence, appointments to the court are political determinations but rarely partisan issues.
The courts in the UK have been quite active over tuning the rushed anti-terror laws that were passed.
Also note that the upper house (House of Lords) is similar to the intended function of the Senate previous to the Seventeenth Amendment. As a country we decided that direct election was more critical than having a legislative body that does not answer directly serve the individual voter. This difference required some of the balance of power to shift to the courts and also relates to some shift in their involvement in policy.
I do not think that our system is perfect but I don’t see the UK system being better except that Bush would have had less difficulty removing even more rights from the people.
Many of the core items on the EU declaration of human rights would not even exist in the USA without the courts if only the two houses and the executive could correct wrongs.
But that doesn’t mean that the UK judiciary is not independent; just that the balance of powers between the executive, the legislature and the judiciary in the UK is different from what it is in the US.
The UK judiciary is independent in the exercise of its functions; it just doesn’t have quite the same range of functions as the US judiciary.
